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

a-8-08.opn.html
experiments, Dr. Penrod testified that 64% of eyewitnesses made no
identification, but 36% picked a foil. See Krafka & Penrod, supra, at 64; Pigott et
al., supra, at 86. Those field experiments suggest that when the true perpetrator
is not in the lineup, eyewitnesses may nonetheless select an innocent suspect
more than one-third of the time.
Any one of the above studies, standing alone, reveals a troubling lack of
reliability in eyewitness identifications.
We accept that eyewitnesses generally act in good faith. Most
misidentifications stem from the fact that human memory is malleable; they are
not the result of malice. As discussed below, an array of variables can affect and
dilute eyewitness memory.
Along with those variables, a concept called relative judgment, which
the Special Master and the experts discussed, helps explain how people make
identifications and raises concerns about reliability. Under typical lineup
conditions, eyewitnesses are asked to identify a suspect from a group of
similar-looking people. “[R]elative judgment refers to the fact that the witness
seems to be choosing the lineup member who most resembles the witnesses’
memory relative to other lineup members.” Gary L. Wells, The Psychology of
Lineup Identifications, 14 J. Applied Soc. Psychol. 89, 92 (1984) (emphasis in
original). As a result, if the actual perpetrator is not in a lineup, people may be
inclined to choose the best look-alike. Id. at 93. Psychologists have noted that
“[t]his is not a surprising proposition.” Gary L. Wells, What Do We Know About
Eyewitness Identification?, 48 Am. Psychologist 553, 560 (1993). Also not
surprising is that it enhances the risk of misidentification. Ibid.
In one relative-judgment experiment, 200 witnesses were shown a staged
crime. Id. at 561. Half of the witnesses were then shown a lineup that included
the perpetrator and five fillers; the other half looked at a lineup with fillers
only. Ibid. All of the witnesses were warned that the culprit might not be in the
array and were given the option to choose no one. Ibid. From the first group,
54% made a correct identification and 21% believed, incorrectly, that the
perpetrator was not in the array. Ibid. If witnesses rely on pure memory instead
of relative judgment, the accurate identifications from the first group should
have translated roughly into 54% making no choice in the second, target-absent
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