Cynthia Davis, Warden v. David M. Smith

The Due Process Clause requires exclusion of police-initiated eyewitness identification testimony in exceedingly rare cases. Exclusion of such evidence, the Court has said, is required only if the testimony poses “a very substantial likelihood of irreparable misidentification.” Perry v. New Hampshire, 565 U.S. 228, 232 (2012) (citation omitted). This Court has done so only once, 55 years ago. See Sexton v. Beaudreaux, 585 U.S. 961, 966 (2018) (citing Foster v. California, 394 U.S. 440 (1969)). In this AEDPA-governed case, a majority of a Sixth Circuit panel concluded that the Constitution barred testimony from a victim of attempted murder identifying her attacker. The panel held that Ohio courts unreasonably applied this Court’s precedent, which mandates a totality-ofthe-circumstances look at reliability, even though: the victim knew the attacker; had texted with the attacker 80-plus times in the day leading up to the attack; and was expecting the attacker to arrive at her house when he did. The Question Presented is: Did the Sixth Circuit exceed its powers under AEDPA in concluding that “every fairminded jurist would agree” that the Ohio court violated the Constitution? Brown v. Davenport, 596 U.S. 118, 136 (2022).