CREDIT: University of Virginia School of Law
Of the 16 people in Virginia who have been exonerated by DNA since testing became available, 13 cases involved eyewitnesses. In light of this data, Virginia overhauled its policies on eyewitness identification two years ago. But according to a new examination by at the University of Virginia School of Law, 90 percent of the state’s police divisions may be violating the rules. In fact, in an analysis of 144 law enforcement agencies, Professor Brandon Garrett found that only 6 percent had adopted the new model policy. One-fifth of the agencies lacked any eyewitness ID policy, in violation of a 2005 requirement.
“You may think you’re not the next department to wrongly convict someone and that it happens rarely,” Professor Garrett told CBS 6. “I think it happens more than you think.”
One prevailing violation was failing to use “blind” line-ups, meaning the officer executing the line-up does not know who the actual suspect is — preventing bias that has been found to taint many cases. Garrett, who authored a book analyzing the first 250 wrongful convictions exposed by DNA testing, said blind lineup policies “are the most crucial reform and should be adopted universally.” Nationwide, eyewitness misidentifications are the single leading cause of wrongful convictions, according to the Innocence Project, playing a role in almost 75 percent of cases overturned because of DNA.
Many agencies have adopted none of the reforms recommended by the state after a 2011 overhaul, and only 85 require that standard instructions be given to the eyewitness. A very small number recorded the line-ups, even though such basic measures could provide accountability and a reliable reference point.
Garrett has a forthcoming paper on Virginia as a case study. DNA testing has revealed the prevalence of wrongful convictions that have in many cases sent the wrong person to jail for decades. But in the wake of this new information, states have been slow to adopt reforms. Courts continue to deny even access to DNA testing for many defendants, and rely upon second-best or discredited procedures, such as hair sampling analyses that have called hundreds of convictions into question.