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In the Supremes
Lyle Denniston at SCOTUSBlog has a preview of Perry v. New Hampshire.
At 10 a.m. next Wednesday, the Supreme Court will hear one hour of oral argument on a case seeking clarification of when trial courts must exclude the testimony of an eyewitness to a crime because the testimony was unreliable. In the case of Perry v. New Hampshire (10-8974), arguing for Barion Perry of Nashua, N.H., will be Richard Guerriero, a public defender in Concord, N.H. Representing the state will be its Attorney General, Michael A. Delaney of Concord, with 20 minutes of time. Supporting New Hampshire, for the federal government as an amicus, with ten minutes of time, will be Nicole A. Saharsky, an assistant to the U.S. Solicitor General.
United States v. Rhodes, 42 M.J. 287 (C.A.A.F. 1995), seems to be ‘the’ military case.
Mil.R.Evid. 321(a)(1) and (d)(2), 5 Manual for Courts-Martial, United States, 1984, adopt a two-prong test based upon Supreme Court case law for determining admissibility of eyewitness identification. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977); Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972); Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967); United States v. Webb, supra; United States v. Fors, 10 M.J. 367 (CMA 1981). First, was a pretrial identification unnecessarily suggestive? Stovall v. Denno, supra (hospital showup held imperative, and thus permissible, because victim was in critical condition). Second, if the pretrial identification was “unnecessarily suggestive,” was it conducive to a substantial likelihood of misidentification? Manson v. Brathwaite, supra. See also United States v. Fors, 10 M.J. at 372 (suggestive identification because accused only person in both lineups). An “unnecessarily suggestive” pretrial identification does not preclude a reliable in-court identification. Id.
Franze and McLaughlin also preview: (To be argued 31 October 2011).
The Court will kick off the November sitting with two cases addressing the ineffective assistance of counsel during the plea bargaining process. The question presented in Lafler v. Cooper and Missouri v. Frye is whether a defendant who rejects a plea offer because of ineffective assistance of counsel is entitled to relief if the defendant later receives a longer sentence than the prosecution had offered under the plea. Lafler and Frye are the latest of a handful of cases this Term focused on the adequacy (or inadequacy) of defense counsel.