Chief Justice Rabner continued in relevant part: Multiple viewings of mugshots “can create a risk of ‘mugshot exposure’ and ‘mugshot commitment.’” Mugshot exposure occurs “when a witness initially views a set of photos and makes no identification, but then selects someone — who had been depicted in the earlier photos — at a later identification procedure.” Of greater significance for this case, mugshot commitment takes place when a witness identifies a single photo that is later included in a lineup. In both instances, studies show that witnesses are affected by repeated viewings of a suspect. Mugshot commitment and exposure thus “can affect the reliability of a witness’ ultimate identification and create a greater risk of misidentification.” As a result, the Court observed that “law enforcement officials should attempt to shield witnesses from viewing suspects or fillers more than once.”
Showups are highly suggestive because the victim can only choose from one person. Although showups can serve a valuable purpose if conducted within hours of a crime, studies underscore the heightened risk of misidentification when a showup is conducted more than two hours after an event.
Confirmatory feedback occurs when law enforcement officials “signal to eyewitnesses that they correctly identified the suspect.” According to social science research, “confirmatory feedback can distort memory.” Concerns about feedback also relate to the person administering the identification procedure. Ideally, the administrator should “not know who the suspect is,” or not know where the suspect appears in a lineup or photo array, to avoid influencing the witness intentionally or unintentionally. That concept is referred to as “blind administration.”
Henderson also made note of a straightforward principle — that “memories fade with time. The more time that passes, the greater the possibility that a witness’s memory of a perpetrator will weaken.”
There is limited case law about witnesses being shown photos of defendants during trial preparation. Two decisions from New Jersey courts have referred to the display of photos during pretrial preparation sessions, but only in passing, and the Court reviews the handful of cases from other jurisdictions that have more squarely addressed the display of photos during trial preparation.
The Henderson noted that misidentifications are the leading cause of wrongful conviction. The Court explained that because witnesses are manipulated into believing their identification, their demeanor when testifying does not indicate that they are providing false testimony. That explains why juries credit their false testimony and wrongful convictions occur.