Virginia Government Takes Important Step Toward Reducing Eyewitness Misidentification

It is a question faced by law enforcement agencies around the country: Are eyewitness identifications trustworthy? Research performed by The Innocence Project indicates that they aren't. The Innocence Project's figures reveal that up to 75 percent of cases wherein a wrongfully convicted individual's innocence was proven by DNA testing involved a misidentification by an eyewitness.

Virginia's Eyewitness Identification Policies

Fourteen of The Innocence Project's 289 overturned wrongful convictions have been in Virginia. As a result, the Commonwealth's law enforcement agencies are concerned that their policies regarding eyewitness identification procedures needs to be addressed. While a 2005 state law requires that all state and local law enforcement agencies have written policies reflecting the best practices for handling eyewitness evidence and investigations, there is little enforcement of that law.

A 2010 study performed by the Virginia Crime Commission proved that a full third of the state's law enforcement agencies had no written policy whatsoever for eyewitness identification procedures. Moreover, of the few jurisdictions that had actually written policies, those policies were not written in conformance with recognized best practices. As a result, it is believed that they are more likely to result in misidentifications.

Thankfully, the state's Department of Criminal Justice Services (DCJS) has noticed the deficiencies in Virginia's identification procedures and is taking action, though, admittedly, it is not enough. The department has revamped its model recommendations regarding lineups to help ensure that witnesses' memories aren't tainted by either the blatant or subconscious actions of the investigator. The DCJS also plans to develop training sessions that will be uniformly administered across the state to all law enforcement agencies. The goal of the training will be to implement best practices in every jurisdiction.

A simple yet effective adjustment to the eyewitness lineup procedure has already been passed into law in North Carolina, Connecticut and Ohio. Those states have enacted a mandate to perform "double blind" lineups when eyewitnesses are used to identify a suspect. A "double blind" lineup uses an investigator who is not involved in the case and does not know the true suspect(s), to present the lineup to the witness. This method is being touted by legislators because research shows that it prevents accidental "poisoning" of a witness by a case detective's knowledge. A thorough review of old cases has shown that oftentimes an officer will suggest or emphasize one person (either consciously or inadvertently) over another. This has led eyewitnesses to make erroneous identifications in the past.

While the department's efforts are essential to the type of change needed to prevent misidentifications, law enforcement agencies are slow to change their procedures. Until best practices are implemented, though, it is believed that wrongful convictions based upon misidentifications will continue to occur. As a result, having a skilled criminal defense attorney who is knowledgeable of the best practices in the industry is critical to ensuring your proper defense.