gavel and justice scales

Virtually all Virginians now live where police use eyewitness identification techniques that minimize the chance the wrong suspect is identified, a new survey has found.

In 2013, only a handful of police departments had adopted model photo lineup policies employing relatively simple and inexpensive techniques to help curb misidentifications that can lead to wrongful convictions and allow the guilty to remain free to commit new crimes.

However, according to Brandon Garrett, a former professor at the University of Virginia School of Law, and the Virginia Association of Chiefs of Police, all but a handful of small police agencies in Virginia now have better polices for conducting photo arrays and less commonly used in-person lineups.

“Five years later, in 2018, we re-surveyed agencies and found that there is now extensive dissemination and widespread adoption of the state model policy,” wrote Garrett, who now teaches at the Duke University School of Law, in a paper published last week.

All but 4 percent of Virginia’s population live in places without model policies, Garrett said.

In his April 28 paper, “Self Policing: Dissemination and Adoption of Police Eyewitness Policies in Virginia,” Garrett credits the Virginia Department of Criminal Justice Services, the chiefs of police association, media coverage and others with the development.

The survey of Virginia’s more than 300 law enforcement agencies was conducted last year by UVA law students using Freedom of Information Act requests.

In 2005, after DNA was proving there was a problem with witness misidentifications, the General Assembly told police agencies to adopt written policies for conducting photo and in-person suspect lineups. Then in 2011, the DCJS wrote a model policy for agencies to adopt.

But a UVA law school survey in 2013 found that of 144 Virginia police agencies with written policies, only nine had implemented the model policy and nearly nine out of 10 still relied on outdated policies to some extent.

Of the 350 law enforcement agencies in the state, 201 responded to the survey in 2013 and one-fifth of those responding still had no written policies some eight years after they were told to develop them by the Virginia General Assembly.

The misidentification of suspects played a part in 17 of thus far 20 cases where DNA has proved the innocence of wrongfully convicted people in Virginia — and in 70 percent of cases nationwide.

Research has shown that some relatively simple, inexpensive changes in the way investigators present suspect photographs to witnesses can curb the chance of error.

For example, “blind” lineups — suspect photos shown to witnesses by an officer not involved in the investigation or by an investigator who does not see the photos shown to the witness — eliminates any bias the investigator might inadvertently communicate to the witness.

Witnesses should also be told that the perpetrator may not be among the photos shown and the photos should be shown one at a time, rather than in a simultaneous spread of a half-dozen or more.

Dana G. Schrad, executive director of the chiefs of police association, joked, “Law enforcement is almost like any other profession. Two things they dread the most are change and no change.”

Schrad said police officials are accustomed to policy changes coming through law enforcement agencies themselves or an accreditation process or a state mandate. “This came from some recommended research,” she said.

Many departments had done simultaneous photo spreads for so long that they were not certain there was a problem, she said.

“We got the research, presented to them and [then] just sort of stayed out of it, saying, ‘This is something you need to do.’ It took a little while, but we got it done and I feel really good about that,” Schrad said. “We used a lot of different ways to ease them into it.”

Garrett wrote that now, “the vast majority of agencies have adopted blinded policies, clear instructions to eyewitnesses, guidelines for selecting fillers for lineups, recording of confidence statements, and many agencies require videotaping of lineup procedures. Those improved eyewitness identification practices have been adopted by the vast majority of agencies over the past five years.”

He noted that in 2013, police were moving so slowly on needed changes that he suggested at the time that stronger regulatory measures may be required to safeguard the accuracy of criminal investigations.

“However, five years later, the evidence suggests policing agencies can adopt best practices, without such regulatory measures. A combination of training, hard work by DCJS and by the chiefs association, growing awareness, media coverage, and sharing information between agencies, resulted in a real statewide improvement of police policy,” Garrett said.

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