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

a-8-08.opn.html
Delay, 9 J. Experimental Psychol.: Applied 42, 49-50 (2003). And those effects
can be lasting. See Jeffrey S. Neuschatz et al., The Effects of Post-Identification
Feedback and Age on Retrospective Eyewitness Memory, 19 Applied Cognitive
Psychol. 435, 449 (2005).
The Court concluded in Romero, supra, “that a witness’s level of
confidence, standing alone, may not be an indication of the reliability of the
identification.” 191 N.J. at 76. The hearing confirmed that observation. The
Special Master found that eyewitness confidence is generally an unreliable
indicator of accuracy, but he acknowledged research showing that highly
confident witnesses can make accurate identifications 90% of the time. The
State places great weight on that research. See, e.g., Neil Brewer & Gary L.
Wells, The Confidence-Accuracy Relationship in Eyewitness Identification:
Effects of Lineup Instructions, Foil Similarity, and Target-Absent Base Rates,
12 J. Experimental Psychol.: Applied 11, 15 (2006); Siegfried Ludwig Sporer et
al., Choosing, Confidence, and Accuracy: A Meta-Analysis of the Confidence-
Accuracy Relation in Eyewitness Identification Studies, 118 Psychol. Bull. 315,
315-19, 322 (1995); see also Gary L. Wells & Elizabeth A. Olson, Eyewitness
Testimony, 54 Ann. Rev. Psychol. 277, 283-84 (2003) (noting complexity of
issue). 7
We glean certain principles from this information. Confirmatory feedback
can distort memory. As a result, 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.
We rely on our supervisory powers under Article VI, Section 2,
Paragraph 3 of the State Constitution in requiring that practice. See Delgado,
supra, 188 N.J. at 63 (requiring written record of identification procedure).
To be sure, concerns about feedback are not limited to law enforcement
officers. As discussed below, confirmatory feedback from non-State actors can
also affect the reliability of identifications and witness confidence. See infra at
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