In a path breaking and far reaching decision, the New Jersey Supreme Court recently recognized certain best practices in eyewitness lineup procedures.  See State v. Henderson, 208 N.J. 208 (2011).

Among the best practices that are more likely to ensure a greater level of reliability of the lineup procedure are:

a.  Administration of the lineup in a double blind fashion, that is, the administrator of the lineup should not know which person in the lineup is the defendant.

b.  Reading a statement to the witness that the defendant may or may not be in the lineup;

c.  In the event the witness makes a positive identification, the administrator should refrain from telling the witness that he or she made a correct identification.  Moreover,soliciting an indication in the witness’ own words of how certain the witness is about the identification will increase the reliability of the identification.

A double blind administration of a lineup occurs when the administrator does not know who the suspect is.  The New Jersey Supreme Court has determined that “a non-blind lineup procedure can affect the reliability of a lineup because even the best-intentioned, non-blind administrator can act in a way that inadvertently sways an eyewitness trying to identify a suspect.”  State v. Henderson, 208 N.J. 208, 250 (NJ 2011).  The court concluded, “failure to perform blind lineup procedures can increase the likelihood of misidentification.”  Id. at 250.  A double bind test “prevents the tester from skewing, even unintentionally, the test result.”  In the Matter of the People of the State of New York v. Wilson, 191 Misc.2d 224, 226 (Sup. Ct. Kings Cty. 2002).  Double blind testing has long been a near universally accepted staple of scientific research.  Id., at 228.  See also, Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, p. 10 (2009)(recommending double-blind lineup procedures).

To help prevent misidentification, it also is important for the administrator of the lineup to read a statement to the witness to the effect that the perpetrator may or may not be in the lineup.  The Department of Justice guidelines recommend reading a statement that includes, “the person who committed the crime may or may not be present in the group of individuals.”  Eyewitness Evidence:  A Guide for Law Enforcement, U.S. Department of Justice, pp. 31-33 (1999); see also, Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, p. 10 (2009)(recommending such a statement be read to the witness).

Post-identification feedback presents the risk that the witness’ memory will be affected by the feedback.  Confirmation by the police that a witness has correctly identified the suspect can reduce doubt and engender a false sense of confidence in a witness.  Henderson, 208 N.J. at 253.  Accordingly, prohibiting the police from confirming to a witness that the witness identified the suspect, will help reduce statements of inflated confidence at trial.  A confidence statement by the witness, that is a statement in his or her own words about how certain he or she is regarding the identification, will also help to ensure that the witness’ confidence level does not become affected by post-identification events.  Such a statement gives the jury a way to gauge the weight it should accord a witness’ identification.  Given the impact of post-identification events, the truer measure of certainty is the original statement made by the witness at the time of the identification.

The New Jersey Supreme Court has stated:  “To the extent confidence may be relevant in certain circumstances, it must be recorded in the witness’ own words before any possible feedback.  To avoid possible distortion, law enforcement officers should make a full record — written or otherwise – of the witness’ statement of confidence once an identification is made.  Even then, feedback about the individual selected must be avoided.”   Henderson, 208 N.J. at 254.