Ouch in Perry v. New Hampshire.

The dissent, too, appears to urge that all suggestive circumstances raise due process concerns warranting a pretrial ruling. See post, at 6, 9, 14–17. Neither Perry nor the dissent, however, points to a singlecase in which we have required pretrial screening absent a policearranged identification procedure. Understandably so, for there are no such cases. Instead, the dissent surveys our decisions, heedless of thepolice arrangement that underlies every one of them, and inventing [sic should be invents] a “longstanding rule,” post, at 6, that never existed. Nor are we, as the dissent suggests, imposing a mens rea requirement, post, at 1, 7, or otherwise altering our precedent in any way. As our case law makes clear, what triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intendedthe arranged procedure to be suggestive.

And this:

Perry’s argument, reiterated by the dissent, thus lackssupport in the case law he cites. Moreover, his positionwould open the door to judicial preview, under the bannerof due process, of most, if not all, eyewitness identifications. External suggestion is hardly the only factor thatcasts doubt on the trustworthiness of an eyewitness’ testimony.

Sotomayor responds, but doesn’t really reject the lack of precedents. She just reads the precedents more “holistically.”

The Court’s opinion today renders the defendant’s dueprocess protection contingent on whether the suggestive circumstances giving rise to the eyewitness identificationstem from improper police arrangement. That view lies in tension with our precedents’ more holistic conceptionof the dangers of suggestion and is untethered from theevidentiary interest the due process right protects. In myview, the ordinary two-step inquiry should apply, whetherthe police created the suggestive circumstances intentionally or inadvertently. Because the New Hampshire Supreme Court truncated its inquiry at the threshold, I would vacate the judgment and remand for a proper analysis. I respectfully dissent.

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