Why is unreliable eyewitness identification any different from unreliable anything else?

                — Associate Justice Antonin Scalia, at oral argument in Perry v. New Hampshire,

Yet again, Justice Scalia says what needs to be said, clearly and decisively.  Why indeed?  Of the many burdens placed on judges in their role as gatekeeper of evidence at trial, one of the most critical is the preclusion of unreliable testimony.  And of all unreliable evidence, none is more dangerous than eyewitness testimony.

If only law followed its obvious, natural course.  Oral argument in Perry produced widespread recognition of the indisputable fact that there is no evidence more persuasive and yet more unreliable.  Via Adam Liptak at the New York Times :

“I understand you have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony,” Justice Elena Kagan told Richard Guerriero, a lawyer for Barion Perry, a New Hampshire man convicted of theft based in part on the testimony of a woman who said she saw him from a distance late at night.

Very good empirical evidence doesn’t begin to cover it. There is no single piece of evidence that has been subject to as much scrutiny as eyewitness identifications, and the empirical evidence is overwhelming, beyond dispute, whether reasonable or not, that it’s uniquely unreliable and singularly persuasive.  If nothing else, it’s clear that unreliable eyewitness identifications contributed to 75% of wrongful convictions. 

So what does a court, in order to protect the due process of individuals hauled before it and subjected to the potential of imprisonment, maybe even death, do about this ridiculously unreliable and persuasive piece of evidence?

Most of the justices did not seem inclined to order a hearing in such circumstances, in part because of the lack of a limiting principle. Why stop with eyewitness evidence that was the product of suggestion? Why stop with eyewitness evidence at all?

Mr. Guerriero responded that eyewitness evidence is “probably the leading cause of miscarriages of justice” and should be treated with special care.

But Justice Kagan said the problems with such evidence may not be unique.

“Eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think,” Justice Kagan said.

So it’s not the only unreliable evidence?

“What about all the other safeguards that you have?” she asked. “You can ask the judge to tell the jury, ‘Be careful; eyewitness testimony is often unreliable.’ You can point that out in cross-examination.”

“You can say something about it in your summation to the jury,” she went on, adding that the rules of evidence, as opposed to the Constitution, also allow the exclusion of some kinds of unreliable evidence.

“Why aren’t all those safeguards enough?” Justice Ginsburg asked.

The question may have been posed as a rhetorical, but there’s a very good answer.  Because it’s failed to suffice forever. Because part of the mythology is that eyewitness testimony is the best, most certain assurance around.  Because judges don’t allow lawyers to argue without evidence presented to the jury, and they won’t allow defense lawyers to present empirical evidence that isn’t directly material.  Because this doesn’t happen in the real world the way Supreme Court justices imagine it should.

The justices also mused about other forms of evidence and information, including fingerprints, DNA, crystal balls, tea leaves and information obtained through torture. But they seemed persuaded by a lawyer for the federal government, Nicole A. Saharsky, who argued in support of state prosecutors in the case.

“Taking the question of reliability away from the jury,” Ms. Saharsky said, “would be a very big change in our system.”

Exactly, except Nicole Saharsky isn’t arguing against the admission of unreliable evidence, but for it.  The state is arguing for the power to convict based on evidence that is empirically known to be terribly unreliable because it knows that it’s the most certain way to convict a defendant.  It’s as if she argued that if the court takes away her unreliable evidence, she’ll never be able to convict anyone of a crime, the guilty as well as the innocent. 

The argument before the Supreme Court laid out exactly what one would have expected, hoped for.  The proof of unreliability was accepted, as it could not be denied.  The impact was recognized, as it could not be denied.  And the justices embraced it, as they could do nothing else.

And yet, the justices were completely, utterly unmoved.

Assuming defense counsel is permitted to argue to the jury, even in the absence of testimony to support the argument, that eyewitness identification is inherently unreliable, it flies in the face of what everyone knows, what everyone believes, that there is no evidence more damning.  There is nothing with greater emotional force than a victim who says, with voice quivering, eyes fixed, that she will never forget that face.  There is no juror who watches this scenario play out whose heart is so cold, mind so clear, that she can say to herself, but this isn’t true.

And that’s why we need an appellate court, a cold, rational group of justices, to save us from a universal belief that’s overwhelmingly appealing, and utterly wrong, protect the integrity of our process, the uphold the due process of every individual subject to conviction, from the ubiquity of unreliable evidence.  Because that’s what courts exist to do, and our Supreme Court would never fail us so miserably. 

And if Justice Scalia’s view pervails, all unreliable evidence will fall with it, as no rational judge could ever suggest that our legal system should embrace outcomes based on unreliable evidence.