State v. Henderson and the New Model Jury Charges - New Jersey ...

a-8-08.opn.html
Second, lineups should include a minimum number of fillers. The
greater the number of choices, the more likely the procedure will serve as a
reliable test of the witness’ ability to distinguish the culprit from an innocent
person. As Dr. Wells testified, no magic number exists, but there appears to be
general agreement that a minimum of five fillers should be used. See Nat’l Inst.
of Justice, U.S. Dep’t of Justice, Eyewitness Evidence: A Guide for Law
Enforcement 29 (1999); Attorney General Guidelines, supra, at 2.
Third, based on the same reasoning, lineups should not feature more
than one suspect. As the Special Master found, “if multiple suspects are in the
lineup, the reliability of a positive identification is difficult to assess, for the
possibility of ‘lucky’ guesses is magnified.”
The record is unclear as to whether the use of fillers that match a witness’
pre-lineup description is more reliable than fillers that resemble an actual
suspect (to the extent there is a difference between the two). Compare Steven E.
Clark & Jennifer L. Tunnicliff, Selecting Lineup Foils in Eyewitness
Identification Experiments: Experimental Control and Real-World Simulation,
25 Law & Hum. Behav. 199, 212 (2001), and Gary L. Wells et al., The Selection
of Distractors for Eyewitness Lineups, 78 J. Applied Psychol. 835, 842 (1993),
with Stephen Darling et al., Selection of Lineup Foils in Operational Contexts,
22 Applied Cognitive Psychol. 159, 165-67 (2008). Further research may help
clarify this issue.
We note that the Attorney General Guidelines require that fillers “generally fit
the witness’ description” and that “[w]hen there is a limited or inadequate
description of the perpetrator provided by the witness, or when the description
of the perpetrator differs significantly from the appearance of the suspect,
fillers should resemble the suspect in significant features.” Attorney General
Guidelines, supra, at 2-3; see also R.C.L. Lindsay et al., Default Values in
Eyewitness Descriptions, 18 Law & Hum. Behav. 527, 528 (1994) (“Innocent
suspects may be at risk when the witness provides a limited or vague
description of the criminal and the lineup foils, although selected to match the
description, are noticeably different from the suspect in appearance.”).
Of course, all lineup procedures must be recorded and preserved in
accordance with the holding in Delgado, supra, 188 N.J. at 63, to ensure that
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