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  • VA Police Procedures & Eyewitness Errors

  • Eyewitness Inaccuracy is a Known Risk in Criminal Cases

    Eyewitness testimony is a frequently used source of evidence in criminal cases in the U.S. According to the Richmond Times-Dispatch, the number of eyewitnesses who identify suspects in trials each year is estimated to be in the thousands. Many criminal cases in Stafford may hinge on this form of evidence. Unfortunately for the accused, eyewitnesses are not infallible, even in up-close crimes, such as assault.

    Since 1989, eyewitness errors have contributed to over three-quarters of wrongful convictions later exonerated through DNA testing. In Virginia, 13 out of 16 wrongful convictions that have occurred since 1989 have involved eyewitness mistakes. Alarmingly, recent reports indicate that authorities in the state have not taken recommended steps to guard against these common errors.

    System Variables & Eyewitness Errors

    The Innocence Project explains that eyewitnesses may make mistakes due to estimator variables or system variables. Estimator variables occur during the crime. For instance, if someone witnesses a robbery, the lighting, viewing distance and degree of emotional stress may influence the person's memory. System variables arise during criminal justice procedures; typical examples include eyewitness instructions or identification procedures.

    Unlike estimator variables, system variables are controllable. Virginia law enforcement agencies have been urged to take steps to address these variables. However, The Richmond Times-Dispatch reports that many agencies have not done so. For example, a law requiring law enforcement agencies to create standardized, written identification protocols was passed in 2005. In 2010, a survey found that 25 percent of agencies still lacked written policies.

    Similarly, the Virginia Department of Criminal Justice Services has created a best practices policy for blind lineup procedures. However, a 2013 survey found that most agencies had not implemented the policy and started conducting blind lineups. Instead, 9 out of 10 were still using older policies that left room for eyewitness contamination or bias.

    Potential Impacts of Procedural Changes

    A recent report from the National Academy of Sciences stressed the importance of guarding against system variables. The report reviewed extensive research into memory and concluded that human memory is highly vulnerable to outside influences. The report ultimately recommended that authorities protect against memory distortion by doing the following:

    • Videotaping every identification procedure
    • Creating standardized written instructions for identification procedures
    • Explicitly telling eyewitnesses that the suspect might not be present in the lineup
    • Conducting "blind" lineups, in which the overseeing officer does not know the suspect's identity
    • Asking eyewitnesses to state their level of confidence in any identifications they make

    These measures would not prevent every eyewitness error, especially those involving estimator variables. However, they could significantly reduce the risk of some preventable errors.

    Until more Virginia agencies implement these changes, the risk of wrongful convictions in cases involving eyewitness testimony may remain significant. Anyone facing criminal charges involving eyewitness evidence should consider consulting with an attorney to determine how to address those charges.