RICHMOND, Va. — Most law enforcement agencies in Virginia continue to use outdated eyewitness identification procedures two years after the state recommended a model policy, a study by a University of Virginia law professor found.
Brandon Garrett released findings of his survey of police lineup procedures Monday. Only 6 percent of the 144 police departments and sheriff’s offices that supplied their policies have implemented the “best practices” adopted by the state Department of Criminal Justice Services in 2011, Garrett said. The vast majority are still using outdated policies from 2005 and 1993.
One-fifth of the 201 agencies that responded to the survey had no written policy at all, in violation of a 2005 state law.
“I find it pretty disheartening,” Garrett said in a telephone interview. “I would have expected that two years into a great model policy — maybe the best in the country — departments would have adopted it. DCJS has done a good job getting the word out and conducting the training. It’s not like good lineups cost anything.”
In his study, he attributed the failure of agencies to modernize their procedures to “institutional inertia.”
Dana Schrad, executive director of the Virginia Police Chiefs Association, said she would raise the issue at the organization’s three-day conference that started Sunday.
“My goal is to get a great number of them up to speed,” she said. “Maybe we haven’t been clear enough that it’s not enough just to have a policy — you have to make sure it is updated.”
According to Garrett, the failure to adopt best practices can have dire consequences. Thirteen of the 16 people wrongly convicted in Virginia and later exonerated by DNA evidence originally were misidentified by eyewitnesses, he said.
One of the study’s most troubling findings, Garrett said, is that most agencies still don’t use “blind” lineups in which the officer in charge doesn’t know which person in the live or photo lineup is the actual suspect. Only 42 agencies require blind lineups, while 16 make them optional.
Garrett said blind lineups are central to the model policy and are the most crucial reform agencies can make.
The study found that 33 agencies require or allow the use of sequential lineups — when pictures are shown to a witness one at a time — but without making sure the officer doesn’t know which photo shows the suspect. Garrett said such a procedure is especially error-prone because it prolongs interaction with the administrator, providing more opportunity for the witness to pick up cues from the officer running the lineup.
Also, only nine agencies authorize the use of a “folder shuffle” method recommended in the DCJS model policy for small agencies that may not have an officer who doesn’t know the identity of the suspect. Under that method, the lineup is made blind by putting photos in folders, adding a few blanks, shuffling them and allowing the eyewitness — but not the administrator — to look inside the folders.
Ninety-one policies included statements cautioning officers against some form of suggestion, but Garrett found some of those statements lacking. For example, one said officers “should be careful and avoid inadvertent signaling to the witness” that might influence a selection.
“How a policy can prevent ‘inadvertent’ cues by just telling officers not to do something inadvertent is a mystery,” Garrett wrote in the study. “Instead, agencies must simply adopt blind lineup procedures, or the folder system alternative.”
Charlottesville Police Chief Tim Longo, whose department has adopted a “blind sequential” procedure, said he could not speculate on why so many departments have retained outdated procedures. He said in an email that law enforcement professionals who have adopted the model policy — or variations of it — should be “strong advocates for adoption not only because it is what’s best for the commonwealth, but because I believe it represents a best practice in American policing.”
The General Assembly has resisted mandating specific eyewitness ID procedures, trusting the agencies to adopt best practices. Garrett concluded that if police don’t improve their procedures, stronger action should be taken.
Longo insisted that the responsibility lies with law enforcement, not lawmakers.
“I would find it most unfortunate for law enforcement policy, which falls squarely within the purview of the chiefs and sheriffs, to be dictated by statute in order to achieve compliance,” he said.
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