In the case of Barion Perry v. New Hampshire, 2011, the U.S. Supreme Court ruled that a criminal defendant's constitutional rights were not violated by admitting an eyewitness identification made under suggestive circumstances if there was no improper state action involved in the identification process. The case revolved around Barion Perry who had been identified as a suspect in thefts from cars based on an eyewitness account given to police officers at night and from a distance. Perry argued that this identification was unreliable due to its suggestive nature and should have been excluded from his trial; however, because it wasn't orchestrated or manipulated by law enforcement officials but rather occurred spontaneously during their investigation, it didn't violate his right to due process under the Fourteenth Amendment according to majority opinion written by Justice Ruth Bader Ginsburg.

In the dissenting opinion for Barion Perry v. New Hampshire, Justice Sotomayor argued that the court should have considered whether due process requires a judicial assessment of reliability for all eyewitness identifications made under suggestive circumstances, not just those orchestrated by law enforcement officers. She emphasized that mistaken eyewitness identification is the single greatest cause of wrongful convictions in this country and pointed out several factors contributing to unreliability such as stress, presence of a weapon, duration of exposure among others. The majority's decision to limit review only when police misconduct is involved was seen as an arbitrary distinction by her since it does not take into account these other sources of unreliability which can lead to unjust outcomes. Furthermore, she noted that excluding unreliable evidence from trial serves important interests beyond preventing wrongful conviction—it also maintains public confidence in the criminal justice system and upholds its truth-seeking function.