# Perry v. New Hampshire > Supreme Court of the United States · January 11, 2012 · 565 U.S. 228 URL: https://www.frixlaw.com/law-library/cases/7268277 ## Case - **Full name:** BARION PERRY v. NEW HAMPSHIRE - **Court:** Supreme Court of the United States - **Decided:** January 11, 2012 - **Citations:** 565 U.S. 228; 23 Fla. L. Weekly Fed. S 60; 80 U.S.L.W. 4073; 181 L. Ed. 2d 694; 132 S. Ct. 716; 2012 U.S. LEXIS 579; 2012 WL 75048 - **Precedential status:** Published - **Opinion:** Concurrence by Thomas - **Judges:** Alito, Breyer, Ginsburg, Kagan, Kennedy, Mayor, Roberts, Scalia, Soto, Sotomayor, Thomas - **Cited by:** 739 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7268277 ## How later opinions describe it (automated extraction) - holding where there 13 is no improper law enforcement activity, eyewitness testimony is not excluded; rather, the 14 reliability of the testimony is tested by, inter alia, vigorous cross-examination, protective rules of 15 evidence, jury instructions on the fallibility of eyew… - holding that due process concerns, absent "the presence of [suggestive] state action" relating to an eyewitness identification, are met by the traditional guarantees of a "fair trial" embedded in ' the Sixth Amendment, such as "the right to counsel, compulsory process to obtai… - holding that when determining whether to suppress an eyewitness identification, a court should not consider the reliability of eyewitness evidence, i.e., engage in part two of the test, unless the defendant satisfies the requirement of part one by proving that the police emplo… - explaining that “improper suggestion” occurs where the police tell the witness “that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail” or when the police “point[] out” the suspect “before or during a lineup” (quoti… - explaining that “when evidence ‘is so extremely unfair that its admission violates fundamental No. 18-1204 Stewart v. Winn Page 12 conceptions of justice,’” the Court has “imposed a constraint tied to the Due Process Clause.” (quoting Dowling v. United States, 493 U.S. 342, 35… ## Opinion text SEPARATE OPINIONS [ 565 U.S. 249 ] Justice Thomas, concurring. The Court correctly concludes that its precedents establish a due process right to the pretrial exclusion of an unreliable eyewitness identification only if the identification results from police suggestion. I therefore join its opinion. I write separately because I would not extend Stovall v. Denno, 388 U.S. 293 , 87 S. Ct. 1967 , 18 L. Ed. 2d 1199 (1967), and its progeny even if the reasoning of those opinions applied to this case. The Stovall line of cases is premised on a “substantive due process” right to “fundamental fairness.” See, e.g., id., at 299 , 87 S. Ct. 1967 , 18 L. Ed. 2d 1199 (concluding that whether a suggestive identification “resulted in such unfairness that it infringed [the defendant’s] right to due process of law” is “open to all persons to allege and prove”); Manson v. Brathwaite, 432 U.S. 98, 113 , 97 S. Ct. 2243 , 53 L. Ed. 2d 140 (1977) (“The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment”). In my view, those cases are wrongly decided because the Fourteenth Amendment’s Due Process Clause is not a “secret repository of substantive guarantees against ‘unfairness.’ ” BMW of North America, Inc. v. Gore, 517 U.S. 559, 598-599 , 116 S. Ct. 1589 , 134 L. Ed. 2d 809 (1996) (Scalia, J., joined by Thomas, J., dissenting); see also McDonald, v. City of Chicago, 561 U.S. 742, 811 , 130 S. Ct. 3020 , 177 L. Ed. 2d 894 (2010) (Thomas, J., concurring in part and concurring in judgment) (“The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity”). Accordingly, I would limit the Court’s suggestive eyewitness identification cases to the precise circumstances that they involved. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7268277. Public record. Not legal advice.