WASHINGTON – The Supreme Court seemed reluctant Wednesday to create additional constitutional barriers to introducing some eyewitness testimony at criminal trials, despite a proliferation of studies showing that mistaken identity is the leading cause of wrongful convictions.

The court itself, in a 1967 decision, had worried that eyewitness testimony could be particularly problematic and result in a “high incidence of miscarriage of justice.”

But New Hampshire public defender Richard Guerriero appeared to have a hard time convincing the justices that courts should institute added protections against testimony induced by police, or that more safeguards are needed against eyewitness accounts than other kinds of testimony.

“You have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony,” Justice Elena Kagan told Guerriero. “I’m just suggesting that eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think.”

Guerriero replied that questions about eyewitness testimony are “unique.”

“If somebody else came along and said, ‘We’ve done a study and we find … that in 75 percent of the wrongful convictions, this evidence contributed to the miscarriage of justice,’ then I would think the court should take a look at that,” Guerriero said. “But I don’t think any other evidence matches that.”

The American Psychological Association, the Innocence Network and the Criminal Defense Lawyers Association have similarly urged the court to recognize special rules for such testimony. They cite, for instance, a recent book by University of Virginia law professor Brandon Garrett that shows that 190 of the first 250 people exonerated by DNA evidence were convicted because of eyewitness testimony.

But the nuanced case before the court may be ill-suited for a fundamental re-evaluation of the issue.

In 2008, Nashua police were called about a man trying to break into vehicles behind an apartment building. At the scene, an officer found Barion Perry carrying two radio amplifiers, which he said he found on the ground.

A resident of the building told police that his neighbor had seen the break-ins. Under questioning from an officer, the neighbor described the man she had seen only as tall and black. Then, without prompting from the officer, she went to her window and identified Perry, who was standing next to a police officer, as the man.

The identification was used to convict Perry, despite objections from his lawyers that seeing him next to the police officer could have unfairly influenced the woman’s identification.

The Supreme Court has ruled in previous cases that a defendant’s right to due process can be violated when police create a “suggestive” situation to induce an eyewitness to identify a suspect.

Guerriero argued that because eyewitness testimony can be so unreliable, any “suggestive situation” can be a reason to exclude the testimony, even if police have no role in creating the circumstances.

His counterpart, New Hampshire Attorney General Michael Delaney, said constitutional questions are raised only when something improper has taken place.

“What the due process clause is concerned about is the role of the police in essentially stacking the deck, putting their thumb on the scale and skewing the fact-finding process,” he said.

The case is Perry v. New Hampshire.

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