January 13, 2012

Supreme Court of the United States

Smith v. Cain                

No. 10-8145 : 01/10/12


Should a defendant obtain relief under Brady v. Maryland when the State failed to disclose the sole testifying eyewitness’s prior contradictory statements made to the police?

Holding (Roberts, C.J.):

Yes, it was uncontested that the statements were favorable; they were also material. The undisclosed statements alone sufficed to undermine confidence in the conviction.
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Dissent (Thomas, J.):

Most of the eyewitness’s testimony was consistent and the contradictory statements were of minimal impeachment and exculpatory value.


Brady violations continue to be the most frequent prosecution issue presented to the SCOTUS. By adopting an open file policy, prosecutors can avoid litigation and criticism years after a trial. The modern best practice is to disclose all information before trial after having worked with law enforcement to make sure the prosecutor’s file contains all the investigative materials generated by the law enforcement agency. Of course, the prosecutor also has an ongoing duty to update such disclosure if new exculpatory information arrives before or during trial.

Perry v. New Hampshire

No. 10-8974 : 01/11/12


Does the Due Process Clause require trial courts to conduct a preliminary assessment of the reliability of eyewitness identification made under suggestive circumstances not arranged by the police?

Holding (Ginsburg, J.):

No, “[t]he fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess it creditworthiness.”
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Concurrence (Thomas, J.):

The Supreme Court caselaw relied on by the defense is wrongly decided.

Dissent (Sotomayor, J.,):

The Court’s caselaw does not support the distinction—between orchestrated police action and inadvertent police action—made by the majority.


This is a sound decision that makes it clear that the jury is the ultimate body to decide the credibility of a witness and the weight to be given a particular item of evidence. That applies to eyewitness identification just like all the other evidence, assuming there has not been any unlawful police action in the collection of that evidence. For eyewitness identification, the defense has ample access to a growing number of eyewitness identification experts who can assist the jury in evaluating that evidence. In addition, as Texas is now adopting model eyewitness identification procedures, both the prosecutor and the defense will have a statewide accepted standard for measuring the reliability of a particular identification.

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