In the case of PERRY v. NEW HAMPSHIRE, the U.S. Supreme Court on January 11, 2012 (Case #10-8974 http://www.supremecourt.gov/opinions/11pdf/10-8974.pdf), affirmed the Decision of the New Hampshire State Supreme Court, holding eyewitness identification that was not procured by unnecessarily suggestive circumstances by law enforcement is not a violation of Due Process and, therefore, cannot be held inadmissible in court. In summary, the U.S. Supreme Court held a preliminary judicial determination to assess the reliability of an out-of-court eyewitness identification was not required before admitting such evidence at trial. The Court held:
"The Constitution protects a defendant against a conviction based upon evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit. Only when evidence "is so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U. S. 342, 352 (internal quotation marks omitted), does the Due Process Clause preclude its admission. Contending that the Due Process Clause is implicated here, Perry relies on a series of decisions involving police-arranged identification procedures. See Stovall v. Denno, 388 U. S. 293; Simmons v. United States, 390 U. S. 377; Foster v. California, 394 U. S. 440; Neil v. Biggers, 409 U. S. 188; and Manson v. Brathwaite, 432 U. S. 98. These cases detail the approach appropriately used to determine whether due process requires suppression of an eyewitness identification tainted by police arrangement. First, due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. Id., at 107, 109; Biggers, 409 U. S., at 198. Even when the police use such a procedure, however, suppression of the resulting identification is not the inevitable consequence. Brathwaite, 432 U. S., at 112-113; Biggers, 409 U. S., at 198-199. Instead, due process requires courts to assess, on a case-by-case basis, whether improper police conduct created a "substantial likelihood of misidentification." Id., at 201. Reliability of the eye witness identification is the linchpin" of that evaluation. Brathwaite, 432 U. S., at 114. Where the "indicators of a witness" ability to make an accurate identification" are "outweighed by the corrupting effect" of law enforcement suggestion, the identification should be suppressed. Id., at 114, 116. Otherwise, the identification, assuming no other barrier to its admission, should be submitted to the jury. Pp. 6-10. "
