Study finds VA eyewitness identification policies leave room for errors

A new study suggests that the majority of Virginia police departments have failed to implement state-recommended protocols to prevent eyewitness errors.

Eyewitness testimony often serves as decisive evidence in criminal cases in Manassas. Unfortunately, mounting evidence suggests that this evidence is not always reliable, even in intimate crimes, such as assault or robbery. The Innocence Project states that eyewitness testimony has contributed to 72 percent of the known wrongful convictions in the U.S. that have been cleared through DNA testing. The total number of wrongful convictions that hinge on flawed eyewitness evidence may be even more significant.

Several variables can cause eyewitnesses to make mistakes, including environmental variables that are beyond anyone's control. However, system variables, which arise from interview and identification procedures, can also greatly influence eyewitnesses. This makes careful protocols to protect against these variables essential.

Controlling system variables

According to the Innocence Project, several system variables can raise the risk of bad eyewitness identifications. These include:

  • The way the lineup is administered - when the officer conducting the lineup knows the suspect's identity, the officer may unintentionally give the eyewitness cues that bias him or her.
  • The choice of fillers - authorities can also increase the likelihood of an eyewitness picking the suspect by choosing fillers, or people who aren't the suspect, who do not reasonably resemble the suspect.
  • The instructions the witness receives - ideally, every eyewitness should receive uniform instructions so that authorities cannot pass on their biases when giving the instructions.
  • The way authorities respond to an identification - positive or negative feedback can affect an eyewitness's confidence in his or her identification.

Alarmingly, a recent report indicates many police departments in Virginia are failing to implement procedures that can help address these known influences and protect against eyewitness errors.

Problematic identification policies

According to The Washington Post, a new study has found that many Virginia police agencies haven't taken simple steps to reduce the risk of eyewitness errors. Many of the 144 agencies surveyed do not train officers on conducting eyewitness identifications or giving eyewitnesses standardized instructions, according to the study.

Furthermore, 41 of these agencies lack a written policy on eyewitness identification procedures, despite a state law requiring agencies to establish such a policy. At least one-quarter of the agencies still use an outdated policy. Only 6 percent have upgraded to the new blind lineup policy that the Virginia Department of Criminal Justice Services endorsed in 2011.

Some of these measures, such as blind lineups, may be difficult for smaller agencies to reasonably implement, especially if staffing or time is short. However, to address this issue, the state's policy gives agencies the option to place each photo in the lineup in an unmarked folder, shuffle the folders and present the folders to the eyewitness without looking inside. Unfortunately, only nine agencies have chosen to use this measure to avoid influencing eyewitnesses.

Guarding against eyewitness errors

The ongoing use of outdated or inadequate identification policies is alarming, given the significant number of wrongful Virginia convictions that have involved eyewitness errors. Since 1989, the state has uncovered 16 wrongful convictions, and 13 have involved evidence from eyewitnesses. A case involving a man wrongfully convicted of rape and imprisoned for 27 years shows how serious the consequences of eyewitness errors can be.

Considering the known issues with eyewitness evidence, anyone facing criminal charges bolstered by eyewitness testimony should appreciate the serious risk of harmful errors. Consulting with a defense attorney can be an important first step for anyone who faces the possibility of a criminal conviction based on eyewitness statements.

Keywords: eyewitness, identification, arrest, charges