probative value is substantially outweighed

On August 15, 2008, around 3 a.m., Joffre Ullon reported to the Nashua, New Hampshire, Police Department that an African-American male was attempting to break into cars in the parking lot of his apartment building. Officer Nicole Clay responded and observed petitioner Barion Perry standing between two cars holding two car-stereo amplifiers, with a metal bat on the ground nearby. Perry stated that he had found the amplifiers on the ground. Nubia Blandón, Ullon's wife, had woken her neighbor Alex Clavijo and informed him that she had seen someone break into his car. Clavijo inspected his vehicle and found a shattered rear window along with missing speakers, amplifiers, a bat, and a wrench. Blandón later described to Clay and Clavijo from her fourth-floor apartment hallway that she had seen from her kitchen window a tall African-American man roaming the parking lot, circling Clavijo's car, opening the trunk, and removing a large box. When asked for a more specific description, Blandón pointed out the window to Perry, who was standing in the parking lot next to a police officer. Perry's arrest followed this identification. Approximately one month later, police presented Blandón with a photographic array including Perry's picture, but she was unable to identify him. Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief. Before trial, he moved to suppress Blandón’s identification on the ground that admitting it at trial would violate due process. Blandón witnessed what amounted to a one-person showup in the parking lot, Perry asserted, which all but guaranteed that she would identify him as the culprit. The New Hampshire Superior Court denied the motion after finding that the identification did not stem from an unnecessarily suggestive procedure manufactured by the police, as Blandón pointed to Perry spontaneously without inducement. At trial, Blandón and Clay testified regarding the out-of-court identification, and the jury convicted Perry of theft while acquitting him of criminal mischief. On appeal, the New Hampshire Supreme Court affirmed the conviction, holding that the Due Process Clause requires a trial court to assess the reliability of identification evidence before permitting a jury to consider it only where the police employ suggestive identification techniques. The United States Supreme Court granted certiorari. The question presented was whether the Due Process Clause 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.

Guy Rufus Huddleston was charged with one count of selling stolen goods in interstate commerce under 18 U.S.C. § 2315 and one count of possessing stolen property in interstate commerce under 18 U.S.C. § 659. The two counts related to two portions of a shipment of stolen Memorex videocassette tapes that Huddleston was alleged to have possessed and sold. A trailer containing over 32,000 blank Memorex videocassette tapes with a manufacturing cost of $4.53 per tape was stolen from the Overnight Express yard in South Holland, Illinois, sometime between April 11 and 15, 1985. On April 17, 1985, Huddleston contacted Karen Curry, the manager of the Magic Rent-to-Own in Ypsilanti, Michigan, seeking her assistance in selling a large number of blank Memorex videocassette tapes. After assuring Curry that the tapes were not stolen, he told her he wished to sell them in lots of at least 500 at $2.75 to $3 per tape, and Curry subsequently arranged for the sale of a total of 5,000 tapes which Huddleston delivered to the purchasers, who apparently believed the sales were legitimate. The government introduced evidence of similar acts. Paul Toney, a record store owner, testified that in February 1985 Huddleston offered to sell new 12-inch black and white televisions for $28 apiece, indicated he could obtain several thousand of them, and ultimately sold Toney a total of 38 televisions at the Magic Rent-to-Own. Undercover FBI agent Robert Nelson testified that in May 1985 Huddleston offered to sell him 28 refrigerators, 2 ranges, and 40 icemakers for $8,000; Huddleston was arrested shortly after arriving at the parking lot to transfer the appliances, which were determined to have a value of approximately $20,000 and to be part of a stolen shipment. Huddleston testified that the Memorex tapes, the televisions, and the appliances had all been provided by Leroy Wesby, who had represented that all of the merchandise was obtained legitimately, and that he had sold 6,500 Memorex tapes for Wesby on a commission basis without knowledge that any of the goods were stolen. The jury convicted Huddleston on the possession count only. A divided panel of the Sixth Circuit initially reversed the conviction but on rehearing affirmed it, and the Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals.

On July 12, 1992, respondent James Egelhoff was camping in the Yaak region of northwestern Montana with Roberta Pavola and John Christenson to pick mushrooms. The three sold the mushrooms they had collected and spent the rest of the day and evening drinking in bars and at a private party in Troy, Montana. After leaving the party after 9 p.m. in Christenson's 1974 Ford Galaxy station wagon, the drinking continued, as Egelhoff was seen buying beer at 9:20 p.m. and recalled passing a bottle of Black Velvet with Christenson. Around midnight, officers of the Lincoln County sheriff's department discovered the station wagon stuck in a ditch along U.S. Highway 2. Pavola and Christenson were in the front seat, each dead from a single gunshot to the head. Egelhoff lay in the rear of the car, alive and yelling obscenities, with a blood-alcohol content of .36 percent measured over an hour later. His .38-caliber handgun lay on the floor near the brake pedal with four loaded rounds and two empty casings, and he had gunshot residue on his hands. Egelhoff was charged with two counts of deliberate homicide under Montana law requiring that he purposely or knowingly caused the deaths of another human being. At trial he claimed an unidentified fourth person must have committed the murders, that his extreme intoxication rendered him physically incapable of committing them, and that it accounted for his inability to recall the events. The trial court instructed the jury pursuant to Mont. Code Ann. § 45-2-203 that it could not consider respondent's intoxicated condition in determining the existence of a mental state which is an element of the offense. The jury found Egelhoff guilty on both counts and the court sentenced him to 84 years' imprisonment. The Supreme Court of Montana reversed the convictions. The United States Supreme Court granted certiorari.

Respondent John Abel and two cohorts were indicted for robbing a savings and loan in Bellflower, Cal., in violation of 18 U. S. C. §§ 2113(a) and (d). The cohorts elected to plead guilty, but respondent went to trial. One of the cohorts, Kurt Ehle, agreed to testify against respondent and identify him as a participant in the robbery. Respondent informed the District Court at a pretrial conference that he would seek to counter Ehle’s testimony with that of Robert Mills. Mills was not a participant in the robbery but was friendly with respondent and with Ehle, and had spent time with both in prison. Mills planned to testify that after the robbery Ehle had admitted to Mills that Ehle intended to implicate respondent falsely to receive favorable treatment from the Government. The prosecutor in turn disclosed that he intended to discredit Mills’ testimony by calling Ehle back to the stand and eliciting from Ehle the fact that respondent, Mills, and Ehle were all members of the “Aryan Brotherhood,” a secret prison gang that required its members always to deny the existence of the organization and to commit perjury, theft, and murder on each member’s behalf. Defense counsel objected to Ehle’s proffered rebuttal testimony as too prejudicial to respondent. After a lengthy discussion in chambers the District Court decided to permit the prosecutor to cross-examine Mills about the gang, and if Mills denied knowledge of the gang, to introduce Ehle’s rebuttal testimony concerning the tenets of the gang and Mills’ and respondent’s membership in it. At trial Ehle implicated respondent as a participant in the robbery. Mills, called by respondent, testified that Ehle told him in prison that Ehle planned to implicate respondent falsely. When the prosecutor sought to cross-examine Mills concerning membership in the prison gang, the District Court conferred again with counsel outside of the jury’s presence, and ordered the prosecutor not to use the term “Aryan Brotherhood” because it was unduly prejudicial. Accordingly, the prosecutor asked Mills if he and respondent were members of a “secret type of prison organization” which had a creed requiring members to deny its existence and lie for each other. When Mills denied knowledge of such an organization the prosecutor recalled Ehle. Ehle testified that respondent, Mills, and he were indeed members of a secret prison organization whose tenets required its members to deny its existence and “lie, cheat, steal [and] kill” to protect each other. Ehle then further described the organization and testified that “in view of the fact of how close Abel and Mills were” it would have been “suicide” for Ehle to have told Mills what Mills attributed to him. Respondent’s counsel did not request a limiting instruction and none was given. The jury convicted respondent. On his appeal a divided panel of the Court of Appeals reversed. 707 F. 2d 1013 (1983).