Eyewitness error has been a factor in 75 percent of the DNA exonerations nationwide, making it the number-one cause of wrongful convictions in DNA cases. It also has been a factor in 37 percent of all exonerations, including: four of 10 District of Columbia exonerations; nine of 18 Maryland exonerations; and 22 of 34 Virginia exonerations. Although that number is jarring, there are several simple and low-cost reforms that can significantly decrease the likelihood of eyewitness error.
Several jurisdictions – including New Jersey, North Carolina, and Oregon – have mandated such reforms, but the jurisdictions in the Mid-Atlantic Innocence Project’s region have been reluctant to follow suit. While the District of Columbia Metropolitan Police Department recently adopted a General Order that largely complies with the recommended reforms, the situation in Maryland and Virginia has been far more uneven.
In Maryland, legislators in 2007 passed a bill requiring all law enforcement agencies to adopt written eyewitness identification policies that comport with Department of Justice guidelines (which lack many of the key reforms that are recommended by social scientists). Unfortunately, even that modest requirement has not been followed. A survey conducted by the Mid-Atlantic Innocence Project in 2012 indicated that 73 percent of Maryland jurisdictions failed to comply with the law. This was brought to the attention of the legislature and helped prompt the Maryland Police Training Commission to adopt a model policy that not only complies with DOJ guidelines but also complies with the recommendations of social scientists. Early results from a new survey indicate that compliance has not greatly improved, and we are hopeful that the Maryland legislature will act this year to mandate the recommended reforms so that everyone who is identified by an eyewitness in Maryland is part of a process that is designed to minimize error.
In Virginia, similar problems have ensued. In 2005, the legislature passed a bill simply requiring that all law enforcement agencies adopt a written eyewitness identification policy. Unfortunately, the Department of Criminal Justice Services adopted a model policy at the time that did not include most of the recommended reforms. By 2011, it became clear after a study by the Virginia State Crime Commission that most departments had not adopted a policy at all and that those that had adopted policies were not using the recommended reforms. Although the General Assembly did not enact additional legislation, the Department of Criminal Justice Services enacted a model policy that included the key reforms recommended by social scientists. However, another study conducted this year by Prof. Brandon Garrett at the University of Virginia Law School indicated that only six percent of departments had adopted the model policy, 58 percent still used the flawed 2005 policy, and 27 percent had an outdated policy from 1993. While legislation this year is unlikely, MAIP and its allies hope to push for legislation next year that would mandate the adoption of reforms and help prevent additional wrongful convictions based on eyewitness error in Virginia.