By Elizabeth Wong, Associate Director

As the old Latin proverb goes, “to err is human.”  Police officers and eyewitnesses in investigations are no exception.  Proof of such humanity is evident in the 294 people who were convicted in criminal cases and subsequently exonerated by DNA evidence in the United States.  15 of those cases were in Virginia.  It is also evident in the finding of the Innocence Project, that eyewitness identifications are “the single greatest cause of wrongful convictions nationwide, playing a role in nearly 75% of convictions overturned through DNA testing.”  In Virginia, eyewitness misidentification was a factor in 12 of the 15 exonerations.
Further evidence is found in a recently released Urban Institute study, which estimates that the wrongful conviction rate in Virginia is about five percent.  When considering only sexual assault cases, that rate jumps to somewhere between eight and fifteen percent. The Innocence Project questioned the Institute’s conclusions, which are a surprising contrast to previous studies that had estimated the wrongful conviction rate at about three percent.
Whatever the true number might be, Virginia law enforcement agencies must implement policies and procedures that will prevent mistaken eyewitness identifications whenever possible, particularly when something as fundamental as a person’s freedom and liberty are at stake.
Senate Bill 944, passed in 2011, sought to propel Virginia law enforcement in this direction. It directed the Department of Criminal Justice Services (DCJS) to establish training standards and model policies for all law enforcement agencies that reflect best practices for lineups.  These policies, revised earlier this month, aim to reduce any intentional or unintentional influence or suggestion investigators’ might make to eyewitnesses about a suspect.
Following the recommendation of criminal justice experts and studies on psychology of eyewitness memory, the Department’s model policy (doc.) calls for photo lineups to be presented by an officer who does not know who the suspect is and in sequential order rather than simultaneously.  The administration of the photo line ups by someone not familiar with the suspect ensures that the person administering the test does not unduly influence the eyewitness by indicating the suspect in the lineup through unspoken cues.  The sequential presentation requires that the witness compare each photo to his or her memory rather than to the other photos.
Other recommendations include instructions that should be given to the eyewitness, specifications on how the photo array should be composed so that the suspect does not stand out, confidence statements from the witness, and video recording of the procedure.
While the law passed in 2011 mandated that these best practices governing eyewitness identifications be established by the state, legislators did not go the extra step of mandating their use by individual law enforcement agencies.
According to the Virginian-Pilot, four of the five South Hampton Roads cities have policies that don’t conform to the new policy.  Moreover, a 2011 study by DCJS showed that only 13 percent of police departments in Virginia regularly used someone other than the investigating officers when conducting photo lineups.
If law enforcement agencies are truly interested in justice, they should revise their eyewitness identification policies to conform to the best practices established by the state.  Compliance will improve eyewitness accuracy, which means fewer innocent people may be convicted.
We encourage all Virginia law enforcement agencies to institute these policies to help reduce the state’s wrongful conviction rate. Human error may be inevitable, but it can – and should— be prevented whenever possible.  The state’s best practices are one step in the right direction.