In the Matter of an Investigation of Rahim Thomas.
Charles J. Hynes, District Attorney of Kings County, Brooklyn (Kenneth Taub and Seth Lieberman of counsel), for plaintiff.
Kevin M. Doyle, Capital Defender, New York City (Dennis Murphy and Elizabeth Wilson of counsel), for defendant.
Robert S. Kreindler, J.
The People move, on notice to Rahim Thomas (Thomas), for an order placing Thomas in a lineup. In conjunction with the motion the People have annexed an order granting them an unrestricted lineup. Thomas has consented to the lineup and has submitted a detailed order as to how the People are to conduct the lineup. Among other requests, Thomas asks the court to order the People to conduct a double blind sequential lineup.
In deciding which order, if any, to sign, the court has considered the People's motion and order dated October 23, 2001, the " affirmation in opposition" dated October 24, 2001, the exhibits and the attached order directing a double blind sequential lineup, the defendant's memorandum of law dated October 26, 2001, the People's " affirmation in opposition to Motion for Double Blind Sequential Lineup" dated October 26, 2001, and oral arguments made on October 25, 2001 and October 29, 2001.
The issue before the court is whether the court has the authority to direct the People to conduct a lineup in a specific manner and, if it has the authority, whether to exercise its discretion to so order.
The facts, as gleaned from the People's application for the lineup, are that on October 17, 2001 a person was killed. On October 20, 2001, Thomas entered the 75th Precinct and admitted to the shooting of the above-noted person. Nowhere in the People's application do they state that there exists any eyewitness to the shooting. At oral argument the Assistant District Attorney informed the court that there were six alleged eyewitnesses that were to view the lineup. Three of the witnesses had arrived at the scene with Thomas and three of the witnesses were with the victim. What these witnesses saw, the witnesses' prior acquaintance with Thomas, the lighting condition, and the length of time the witnesses observed Thomas was unknown to the Assistant District Attorney. 
On October 20, 2001, Thomas was arrested. Subsequently, a felony complaint was filed. Thomas is currently awaiting action of the Grand Jury.
Double Blind Sequential Lineup
In New York simultaneous lineups are the normal lineup procedure. In a simultaneous lineup the viewer sees all persons at the same time. The viewer is then asked if he or she sees anyone that he or she recognizes. In contrast, in the sequential lineup the viewer sees each person separately, one at a time, for as long as desired. The viewer is told that if he or she recognizes any person to so state.
The defendant has submitted numerous scientific articles which indicate that the sequential lineup is fairer than the simultaneous lineup. The studies indicate that the sequential lineup reduces the chance of misidentification, while having no effect on the rate of correct or accurate identifications (Wells and Seelau, Eyewitness Identification: Psychological Research and Legal Policy on Lineups, 1 Psychol, Pub Pol'y, & L 765; Park, Evidence Scholarship, Old and New, 75 Minn L Rev 849).  In other words the sequential lineup is better at weeding out inaccurate identification but has no effect on correct identifications. The studies also show that factors which may be suggestive in a simultaneous lineup have less of an effect on the viewer during a sequential lineup.
Psychologists speculate that in a simultaneous lineup the viewer subconsciously believes that he or she should select the person that most resembles the perpetrator (Sporer, Eyewitness Identification: Recognizing Faces of Other Ethnic Groups, An Integration of Theories, 7 Psychol, Pub Pol'y, & L 36;  Judges, Two Cheers for the Department of Justice's Eyewitness Evidence: A Guide for Law Enforcement, 53 Ark L Rev 231). Since the viewer believes that the alleged perpetrator is in the lineup, the viewer will in all likelihood select a person from the lineup based upon the person who most closely depicts the perpetrator rather than from a recollection that the person is in fact the perpetrator. In a sequential lineup, the viewer
performs a " recall oriented function" in that the viewer compares the person being viewed by him or her at the lineup with the person that he or she recalls as being involved in the incident (Devenport, Penrod, and Cutler, Eyewitness Identification Evidence: Evaluating Commonsense Evaluations, 3 Psychol, Pub Pol'y, & L 338). When the viewer of a sequential lineup observes a displayed person there is no other individual with whom the viewer can compare. Thus, any identification made ...