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A15513 29 May 2015 MC INTERNATIONAL CRIMINAL TRIBUNAL for the FORMER YUGOSLAVIA

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A15513 29 May 2015 MC INTERNATIONAL CRIMINAL TRIBUNAL for the FORMER YUGOSLAVIA IT-04-74-A 15650 A15650- A15513 29 May 2015 MC INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-04-74-A Before: Judge Theodor Meron, Presiding Judge Carmel Agius Judge Fausto Pocar Judge Liu Daqun Judge Bakone Justice Moloto Registrar: Mr. John Hocking Date filed: 29 May 2015 THE PROSECUTOR v. JADRANKO PRLI Ć BRUNO STOJI Ć SLOBODAN PRALJAK MILIVOJ PETKOVI Ć VALENTIN ĆORI Ć BERISLAV PUŠI Ć PUBLIC JADRANKO PRLI Ć’S BOOK OF AUTHORITIES FOR HIS REPLY BRIEF Office of the Prosecutor: Mr. Douglas Stringer Mr. Mathias Marcussen Ms. Barbara Goy Ms. Laurel Baig Counsel for the Accused: Mr. Michael G. Karnavas and Ms. Suzana Tomanovi ć for Jadranko Prli ć Ms. Senka Nožica and Mr. Karim A. A. Khan for Bruno Stoji ć Ms. Nika Pinter and Ms. Nataša Fauveau-Ivanovi ć for Slobodan Praljak Ms. Vesna Alaburi ć and Mr. Guénaël Mettraux for Milivoj Petkovi ć Ms. Dijana Tomašegovi ć-Tomi ć and Mr. Dražen Plavec for Valentin Ćori ć Mr. Fahrudin Ibrišimovi ć and Mr. Roger Sahota for Berislav Puši ć 15649 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-04-74-A PROSECUTOR v. JADRANKO PRLI Ć ET AL. PUBLIC JADRANKO PRLI Ć’S BOOK OF AUTHORITIES FOR HIS REPLY BRIEF TABLE OF CONTENTS I. OTHER PUBLICATIONS Tab 1. Shari R. Berkowitz & Naser L. Javaid, It’s Not You, It’s the Law: Eyewitness Memory Scholars’ Disappointment with Perry-v-New Hampshire, 19 PSYCH . PUB . POL . & L. 369, 371 (2013). Tab 2. Deborah Davis & William C. Follette, Foibles of Witness Memory for Traumatic/High Profile Events , 66 J. AIR L. & COM . 1421, 1524 (2001). Tab 3. Elizabeth F. Loftus & Hunter G. Hoffman, Misinformation and Memory: The Creation of New Memories , 118 J. EXPER . PSYCH J. 100 (1989). Tab 4. Elizabeth F. Loftus, Intelligence Gathering Post-9/11 , 66 AM. PSYCHOL . 532, 534 (2011). 1 15648 TAB 1 15647 Page 1 104 of 167 DOCUMENTS Copyright (c) 2013 American Psychological Association Psychology, Public Policy and Law August, 2013 Psychology, Public Policy & Law 19 Psych. Pub. Pol. and L. 369 LENGTH: 12495 words ARTICLE: It's Not You, It's the Law: Eyewitness Memory Scholars' Disappointment With Perry v. New Hampshire NAME: Shari R. Berkowitz and Naser L. Javaid, Roosevelt University BIO: This article was published Online First July 8, 2013. Shari R. Berkowitz, Department of Psychology, Roosevelt University; Naser L. Javaid, Department of Political Science and Public Administration, Roosevelt University. Order of authorship was determined alphabetically. Correspondence concerning this article should be addressed to Shari R. Berkowitz, Department of Psychology, Roosevelt University, 430 S. Michigan Ave, Gage Room 400-J, Chicago, IL 60605. E-mail: [email protected] LEXISNEXIS SUMMARY: ... In what follows, we review both the scientific research on eyewitness memory and the Court's constitutional jurisprudence as it relates to eyewitness testimony and evidentiary due-process concerns. ... New Hampshire (2012) to determine if the Constitution "requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police" ( Perry , 2012, p. 6), many eyewitness-memory researchers, criminal defense attorneys, and legal scholars were elated. ... Decades of scientific studies have revealed that there are numerous factors specific to the eyewitness or the crime (estimator variables) that can affect an eyewitness's ability to accurately identify a perpetrator (e.g., the presence of a weapon, the race(s) of the eyewitness and perpetrator, stress, etc.), as well as factors that the criminal justice system controls (system variables), which can increase the likelihood of an eyewitness making a mistaken identification (e.g., unfair lineups, the absence of lineup instructions that warn the eyewitness that the perpetrator may or may not be in the lineup, nonblind lineups in which the officer conducting the lineup is familiar with the suspect, etc.; see Wells, 1978, and Wells & Olson, 2003 for excellent reviews of estimator and system variables). ... United States (1968), an eyewitness's identification should be excluded if there is a "very substantial likelihood of irreparable misidentification" (p. 384). ... Although, eyewitness-memory researchers have identified several more factors that can affect an eyewitness's reliability (e.g., stress, the presence of a weapon, the race(s) of the perpetrator and the eyewitness, etc.), the five criteria that the Court relies upon in Manson include: (a) The eyewitness's confidence in his or her identification, (b) the eyewitness's 15646 Page 2 19 Psych. Pub. Pol. and L. 369, * opportunity to view the perpetrator, (c) the degree of attention that the eyewitness paid to the crime and perpetrator, (d) the accuracy of the eyewitness's prior description, and (e) the amount of time that passed between the crime and the eyewitness's identification (see Wells & Quinlivan, 2009, for an insightful critique of the Court's reliance on the Manson criteria). ... Eyewitness-Memory Scholars's Response: "Safeguards" Are Fallible Of course, despite our understanding of the numerous factors that can distort and alter memory, eyewitness-memory researchers have yet to figure out (without independent corroboration) whether a particular eyewitness's memory is in fact true or false. ... Furthermore, several scientific studies have shown that active and potential jurors, as well as some other members of the legal community, do not have a proper understanding of the factors that affect an eyewitness's identification (Benton, Ross, Bradshaw, Thomas, & Bradshaw, 2006; Deffenbacher & Loftus, 1982; Schmechel, O'Toole, Easterly, & Loftus, 2006; Wise, Pawlenko, Safer, & Meyers, 2009; Wise & Safer, 2010; Wise, Safer, & Maro, 2011). ... Although eyewitness-memory scholars may feel temporarily hopeless, the best thing to do may be to continue to research and promote discussions about the possible unreliability of eyewitness testimony, as well as identify the procedures that promote the accuracy of eyewitness identifications. ... "Good, you identified the suspect:" Feedback to eyewitnesses distorts their reports of the witnessing experience, Journal of Applied Psychology, 83, 360-376. doi:10.1037/0021-9010.83.3.360 Wells, G. HIGHLIGHT: In January 2012, the United States Supreme Court ruled that suggestive identification procedures violate a defendant's rights to due process only if law enforcement officials orchestrated the suggestive procedures. The Court's decision in Perry v. New Hampshire (Perry v. New Hampshire, No. 10-8974, 565 U.S. , 2012) dealt a serious blow to scholars who had contributed to the impressive advances of eyewitness memory research in the 34 years since the Court's last major statement on eyewitness testimony. In particular, it seemed as though the Court ignored the intervening years and the myriad scientific studies that had been conducted in that time. How could the Court be so blind? In what follows, we review both the scientific research on eyewitness memory and the Court's constitutional jurisprudence as it relates to eyewitness testimony and evidentiary due-process concerns. Together, we show that, although the Court may have seemingly ignored decades of scientific research, the question presented by Perry required the Court to remain true to existing due-process jurisprudence. We conclude by reviewing the limits of the Perry decision as well as a discussion of what the future may hold for the intersection of eyewitness memory research and constitutional interpretation. Keywords: eyewitness, suggestive identification procedures, Supreme Court, due process TEXT: [*369] Around 3:00 a.m. on August 15, 2008, police in Nashua, New Hampshire, responded to a call reporting that an African American male was trying to break into parked cars in an apartment complex parking lot. One officer who responded saw Barion Perry, an African American male, standing in the parking lot with two car stereos in his possession and a metal bat near him on the ground. The officer remained with Perry in the parking lot while another officer went inside the apartment building to interview the eyewitness caller who spotted the suspicious behavior from her fourth-story apartment window. The eyewitness provided the officer with a general account of what she saw, namely an African American male circling her neighbor's car in the parking lot and eventually removing something from the trunk. When the officer asked for a more specific description of the man, the eyewitness spontaneously looked out her window and identified the man standing next to the other police officer in the parking lot, Barion Perry, as the offender. Perry was arrested following this identification and, although the eyewitness was unable to pick him out of a photo array approximately one month later, he was charged with theft and criminal mischief. Before his trial, Perry petitioned to suppress the eyewitness's identification, arguing that the initial identification amounted to "a one-person show-up in the parking lot . which all but guaranteed that [the witness] would identify [Perry] as the culprit" (Perry v. New Hampshire, 2012, p. 5). Although there were several reasons to question the accuracy of the identification, including the poor lighting in the parking lot and the fact that Perry was the only African 15645 Page 3 19 Psych. Pub. Pol. and L. 369, *369 American male standing next to a uniformed police officer, the trial judge determined that the jury should have the final consideration as to the reliability of the eyewitness's identification and testimony and denied the request. Perry was eventually convicted of theft and the New Hampshire State Supreme Court affirmed his conviction. Perry subsequently appealed his conviction to the United States Supreme Court (hereafter the Court). When the Court agreed to review Perry v. New Hampshire (2012) to determine if the Constitution "requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police" (Perry, 2012, p.
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