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

a-8-08.opn.html
parties, courts, and juries can later assess the reliability of the identification.
We find that courts should consider whether a lineup is poorly
constructed when evaluating the admissibility of an identification. When
appropriate, jurors should be told that poorly constructed or biased lineups can
affect the reliability of an identification and enhance a witness’ confidence.
4. Avoiding Feedback and Recording Confidence
Information received by witnesses both before and after an
identification can affect their memory. The earlier discussion of Dr. Loftus’
study -- in which she asked students how fast a car was going when it passed a
non-existent barn -- revealed how memories can be altered by preidentification
remarks. Loftus, Leading Questions and the Eyewitness Report,
supra, at 566.
Confirmatory or post-identification feedback presents the same risks. It
occurs when police signal to eyewitnesses that they correctly identified the
suspect. That confirmation can reduce doubt and engender a false sense of
confidence in a witness. Feedback can also falsely enhance a witness’
recollection of the quality of his or her view of an event.
There is substantial research about confirmatory feedback. A metaanalysis
of twenty studies encompassing 2,400 identifications found that
witnesses who received feedback “expressed significantly more . . . confidence
in their decision compared with participants who received no feedback.”
Douglass & Steblay, supra, at 863. The analysis also revealed that “those who
receive a simple post-identification confirmation regarding the accuracy of their
identification significantly inflate their reports to suggest better witnessing
conditions at the time of the crime, stronger memory at the time of the lineup,
and sharper memory abilities in general.” Id. at 864-65; see also Gary L. Wells
& Amy L. Bradfield, “Good, You Identified the Suspect”: Feedback to
Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J.
Applied Psychol. 360 (1998).
The effects of confirmatory feedback may be the same even when
feedback occurs forty-eight hours after an identification. Gary L. Wells et al.,
Distorted Retrospective Eyewitness Reports as Functions of Feedback and
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