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

a-8-08.opn.html
fillers based on the “witness’ description of the perpetrator”; if the description is
limited, inadequate, or differs significantly from the suspect’s appearance,
“fillers should resemble the suspect in significant features”; include a minimum
of four or five fillers; consider placing the suspect in different lineup positions
when conducting more than one lineup in a case with multiple witnesses; and
“[a]void reusing fillers in lineups” when showing the same witness a new
suspect. Id. at 1-3. When constructing photo lineups, officers should also
“[e]nsure that no writings or information concerning previous arrest(s) will be
visible to the witness”; “[v]iew the array, once completed, to ensure that the
suspect does not unduly stand out”; and “[p]reserve the presentation order of
the photo lineup” and the photos themselves. Id. at 2.
The Guidelines also set out specific rules for administering lineups. To avoid
administrator feedback, “the person conducting the photo or live lineup
identification procedure should be someone other than the primary investigator
assigned to the case.” Id. at 1. If that is impractical, the non-blind lineup
administrator “should be careful to avoid inadvertent signaling to the witness of
the ‘correct’ response.” Ibid.
Under the Guidelines, administrators should instruct witnesses “that the
perpetrator may not be among those in the photo array or live lineup and,
therefore, they should not feel compelled to make an identification.” Ibid. The
Guidelines also state a preference for sequential over simultaneous lineup
presentation. See ibid.
During the procedure, administrators must “[a]void saying anything to the
witness that may influence the witness’ selection.” Id. at 3-6. If the witness
makes an identification, officers should “avoid reporting to the witness any
information regarding the individual he or she has selected prior to obtaining
the witness’ statement of certainty.” Ibid.
Officers must record the results obtained from the witness. See id. at 7. As
part of that process, officers are to record both the outcome of the identification
and “the witness’ own words regarding how sure he or she is.” Ibid. If a witness
fails to make an identification, that too should be recorded. Ibid. In addition,
officers should instruct witnesses not to discuss the procedure or its results with
other witnesses. Id. at 4-7.
http://njlaw.rutgers.edu/collections/courts/supreme/a-8-08.opn.html[4/15/2013 6:04:23 PM]