Self-Policing: Dissemination and Adoption of Police Eyewitness Policies in Virginia
Virginia Law Review Online, Forthcoming
Duke Law School Public Law & Legal Theory Series No. 2019-36
15 Pages Posted: 17 May 2019 Last revised: 12 Jul 2019
Date Written: July 11, 2019
Professional policing organizations emphasize the importance of the adoption of sound police policies and procedures, but traditionally doing so has been left to individual agencies. State and local government typically does not closely regulate police, and neither federal constitutional rulings nor state law typically sets out in any detail the practices that police should follow. Thus, law enforcement agencies must themselves draft and disseminate policy. This paper presents the results of studies used to assess the adoption of eyewitness identification policies by law enforcement agencies in Virginia. Policymakers were focused on this problem because Virginia experienced a series of DNA exonerations in cases involving eyewitness misidentifications. In 2005, lawmakers enacted a law that required agencies to have some written policy in place. However, there was little guidance on what that policy should be. To remedy this problem, the state law enforcement policy agency, the Virginia Department of Criminal Justice Services (DCJS) promulgated, in 2011, a detailed model policy on eyewitness procedure. Nevertheless, as reported in a 2013 study, those model practices were only haltingly adopted. In particular, many agencies did not use blind or blinded lineups, in which the administrator does not know which photo is that of a suspect or cannot view which photo the eyewitness is examining. In Fall 2018, all of the over-three hundred law enforcement agencies in Virginia had their policies on this subject requested, using the state freedom of information law. The results show that there has now been widespread adoption of the DCJS model policy. Improved eyewitness identification practices have been adopted by the vast majority of agencies, including large and small agencies. This Article concludes by asking what contributed to the extensive dissemination of a model police policy, and what its implications are for improving police policy and practice without the use of regulation.
Keywords: eyewitness identifications, lineups, police policies
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