The Mid-Atlantic Innocence Project (MAIP) has lent its support to the District of Columbia’s proposed Eyewitness Identification and Procedures Act of 2008. The act, which is intended to help prevent wrongful convictions, would require DC Police to use double-blind, sequential identification procedures. Under these procedures, photo arrays and live lineups are conducted by police officers who do not know which participant is the suspect under investigation. In addition, potential suspects are shown to the witness one at a time, rather than grouped together.

"The existing safeguards, [such as] tenacious defense attorneys, careful prosecutors, [and] thorough courts…are not sufficient to prevent eyewitness error," said Shawn Armbrust, Executive Director of MAIP. Misidentification by eyewitnesses has played a role in more than 75 percent of DNA exonerations in the United States to date.

The local United States Attorneys’ Office and the District’s Attorney General assert that misidentification is not a problem in the District. They point to the fact that only a single defendant has been exonerated in the District of Columbia.

Proponents of the new law are not so easily swayed. They contend that exonerations are nearly impossible to achieve in DC, even in DNA cases, because of narrowly drawn evidence retention laws and poor management of stored evidence. More compelling, they say, is the multitude of cases in which patently questionable identifications were admitted into evidence. Chief among them was the case of Steven Dewitt, a District man who was convicted of murder in 1991. DeWitt was imprisoned based on the testimony of two witnesses to a 15 second crime.

One witness, in viewing the photo array, picked Dewitt’s picture and said, "this looks like the guy I saw." Later, at trial, this witness identified Dewitt by saying "I guess this guy over here." The second witness failed to pick Dewitt in the initial photo spread and picked Dewitt only in a live lineup in which Dewitt was dressed in clothing similar to that the witness reported seeing during the crime. Despite the obvious flaws in both procedures, both identifications were admitted at trial and led to Dewitt’s conviction. His innocence was not proven until more than 13 years later.

Double-blind, sequential testing corrects many of the problems observed in misidentifications. The possibility of inadvertent persuasion or reinforcement by the administering officer is eliminated by using an officer not associated with the investigation. Showing a witness the suspects sequentially, instead of in groups, ensures that the witness is forced to make a decision on each photo or individual rather than selecting the closest match within the group.

The legislation pending in DC is among the most comprehensive in the nation.

"Eyewitness testimony is among the most compelling evidence of guilt or innocence," said Armbrust. "It’s our responsibility to do all we can to reduce the chance of error."

Armbrust will be a part of a panel discussing the Eyewitness Identification Act on October 29, at Venable LLP. If you are interested in attending and would like more information, please click here.

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