The People have moved by order to show cause for an order requiring defendant to participate in an investigatory lineup. The defendant is charged with a series of robberies committed between July 21 and 24, 2002 in Kings County in which jewelry and/or money was forcibly taken from three separate victims after the display of a gun or a knife. In each case the victim has identified the defendant from a photograph and believes that he or she could make an identification if given the opportunity to view the perpetrator in a lineup.

The defense does not oppose the order for a lineup, but moves to modify it to require that the lineup be conducted in a double-blind sequential format, arguing that this procedure produces more reliable results than a simultaneous lineup. The People oppose the modification request, arguing that, due to the availability of a constitutionally acceptable simultaneous lineup procedure, the unresolved questions regarding the superiority of sequential over simultaneous lineups, and the significant costs to law enforcement agencies in implementing new lineup procedures, it would be inappropriate for this court to exercise its discretion to order a double-blind sequential lineup. Both sides have presented materials setting forth the scientific research in the area of lineup identification procedures and the opinions of recognized experts in this field.

That simultaneous lineups meet constitutional standards (see People v. Chipp, 75 NY2d 327, 335, 553 N.Y.S.2d 72, cert. denied 498 U.S. 833, 111 S.Ct. 99 [1990]) and that the lineup procedure will be reviewed by the courts for suggestiveness prior to introduction of any identification at trial are not necessarily sufficient reasons to deny defendant's motion. See Matter of Taylor, N.Y.L.J., Oct. 4, 2002 at 21, col 4 (Sup. Ct. Bronx Co., Cohen J.). In People v. Chipp, the Court of Appeals did not endorse a particular form of lineup over all others, rather, it stated "corporeal lineups, properly conducted, generally provide a reliable pretrial identification procedure and are properly admitted unless it is shown that some undue suggestiveness attached to the procedure." 75 NY2d at 335. Therefore courts must always consider whether a lineup was properly conducted and whether there was undue suggestiveness in the procedure.

Moreover, courts are not limited to their review power. When the government can conduct an investigative procedure only by court order, it is the court's responsibility to ensure [*2]that the People have established the reliability of the proposed procedure and must, before granting the order, weigh alternative methods for obtaining the evidence. See Matter of Abe A., 56 NY2d 288, 452 N.Y.S.2d 6 (1982). In this case, the court has been asked to consider alternative procedures for conducting a corporeal lineup in light of the scientific studies regarding the effect on the reliability of the resulting identifications stemming from particular procedures. The consideration of alternative methods is particularly appropriate in the case of identification procedures because there is a direct correlation between the legal issue of suggestiveness and the factual issue of reliability: any procedure which reduces the suggestiveness of the identification process enhances the reliability of the resulting identification.

Although some courts considering this issue have determined that it is inappropriate to encroach upon the investigative function of the prosecution by instructing them to collect evidence in a particular fashion (see People v. Alcime, N.Y.L.J., Feb.19, 2002 at 21, col 1 [Sup. Ct. Kings Co., Lewis, J.]; People v. Franco, N.Y.L.J., July 5, 2001 at 20, col 5 [Sup. Ct. Bronx Co., Barrett, J.]; see also People v. Martinez, N.Y.L.J., Jan. 18, 2002 at 18, col 3 [Sup. Ct. New York Co., Soloff, J.], I disagree. The doctrine of separation of powers does not require courts to turn a blind eye to the social science research and wait passively for the legislature or the police to decide to adopt new procedures that enhance the fairness of judicial proceedings, but may rule upon the propriety of and necessity for such procedures as the issues are raised. See People v. Wilson, 191 Misc 2d 294, 741 N.Y.S.2d 831 (Sup. Ct. Kings Co., 2002, Knipel, J.); see also Matter of Thomas, 189 Misc 2d 487, 733 N.Y.S.2d 591 (Sup. Ct. Kings Co., 2001, Kreindler, J.).

The scientific studies cited by both parties show that when lineups are conducted in a sequential manner, in which each participant is viewed separately by the witness one after another and the witness is asked to state whether each participant is the perpetrator, the number of mistaken identifications are significantly fewer than in simultaneous lineups, in which all of the participants are viewed at the same time and the witness is asked to state whether one of them is the perpetrator. The studies have also shown, however, that sequential procedures also reduce the number of correct identifications. See Nancy Steblay, et al., Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: a Meta-Analytic Comparison, 25 Law and Human Behavior 459 (2001); Donald P. Judges, Two Cheers for the Department of Justice's Eyewitness Evidence: A guide to Law Enforcement, 53 Ark L. Rev. 231 (2000); R. C. L. Lindsay & Garry L. Wells, Improving Eyewitness Identifications from Lineups: Simultaneous Versus Sequential Lineup Presentations, 70 J. Applied Psychol. 556 (1985). The degree to which the reduction in mistaken identifications is offset by the reduction in correct identifications is the subject of ongoing study and debate among the experts. It is also unclear whether the effects found in the existing studies, which were based upon photographic lineups and simulated crimes, would pertain to real world situations involving a live lineup viewed by an actual crime victim. Based upon this degree of uncertainty, it cannot presently be concluded that a live sequential lineup will provide a more reliable identification than a live simultaneous lineup. Therefore, the defendant's motion to order that the lineup be conducted in a sequential format is denied. The benefits of a double-blind procedure, however, are clear. The studies have shown that the person conducting the lineup can consciously or unconsciously influence the viewing witness through words and actions in the viewing room. This possibility can be [*3]eliminated by conducting a double-blind procedure where person administering the lineup to the witness does not know who the perpetrator is, and by giving neutral instructions, including an instruction that the perpetrator may not be in the lineup. See Mark R. Phillips, et al., Double-blind Photoarray Administration as a Safeguard Against Investigator Bias, 84 J. Applied Psychol. 940 (1999). Indeed, Professor Gary Wells, a well-known expert on identification procedures, upon whose opinion the People heavily rely, has concluded that "there is no disagreement among experts at all" regarding the benefit of the double-blind procedure and that he "would defend your [lineup] procedures if you simply did simultaneous blind" (E-mail correspondence with the Kings County District Attorneys Office dated November 14 and 16, 2001).

While conceding that double-blind procedures eliminate a potential source of suggestiveness, the People still argue against the imposition of a double-blind procedure because no studies have been done to determine whether or not double-blind simultaneous lineups significantly reduce the risk of misidentifications when compared to simultaneous lineups in which the administrator is aware of the suspect's identity. This argument misses the mark. The more suggestive a lineup procedure is, the more likely it is that the witness will identify the target of the lineup, whether or not the target is in fact the perpetrator of the crime. The purpose of a double-blind procedure is to remove a known source of suggestiveness from the identification procedure. This source of suggestiveness is the same in a photographic identification procedure as in a corporeal lineup.

Finally, although there may well be additional personnel costs caused by requiring additional personnel at both the lineup and to testify in court, these costs do not constitute a sufficient reason to reject the scientific conclusion that use of a double-blind procedure results in a more reliable identification.

Therefore, the People's request for a lineup order, and the defense request that the lineup be conducted in a double-blind manner are granted. The defense request for a sequential lineup is denied. The lineup is to be conducted on a date mutually agreed upon by the parties with the following conditions: 1) it is to be a double-blind procedure where the person administrating the lineup does not know the identity of the defendant; 2) each witness is to be instructed that the perpetrator of the crime may or may not be present in the lineup.

This constitutes the decision and order of the court.

Hon. Albert Tomei, J.S.C.