The Harrisonburg Police Department and the Rockingham County Sheriff’s Office are among the vast majority of Virginia law enforcement agencies failing to match up with the state model for conducting lineups. (Photo Illustration by Nikki Fox)
HARRISONBURG — The Harrisonburg Police Department and the Rockingham County Sheriff’s Office are among the vast majority of Virginia law enforcement agencies failing to match up with the state’s model for conducting lineups.
But the sheriff’s office says it isn’t a problem for the agency, and HPD says they’re working on it.
A Virginia Law School Study, conducted by law professor Brandon Garrett, found fewer than 10 percent of police agencies in the commonwealth met the Virginia Department of Criminal Justice Services Model Policy on Eyewitness Identification.
The Washington Post first reported the story Aug. 25.
When a suspect in a crime has been identified, police will often bring similar-looking individuals together for a lineup, including the person officers believe is the perpetrator, for a witness to view. (Think the movie poster for “The Usual Suspects.”)
Sometimes, investigators will use a stack of photos instead.
Either way, lineups are an important tool in a detective’s utility belt.
“I’ve had [a witness] break down, I’ve had them scream, I’ve had them do all kinds of things, and those are pretty good indicators,” said Harrisonburg Police Chief Stephen Monticelli.
But when a lineup is performed unfairly, innocent people can go to jail, as noted by Garrett’s study.
In Virginia, witness IDs have been a serious problem: 13 of 16 DNA exonerations in the state involved eyewitness errors, with poor lineup procedures as a factor in each case, Garrett said in an email.
None of the 16 exonerations occurred in Harrisonburg or Rockingham County.
Garrett could not give specific information on any of the 144 individual departments that responded to his study, but he found a few recurring problems.
“The really outdated policies were not just old but seriously error-prone,” he said. “They encourage eyewitnesses to guess, they tolerate dangerous police suggestion and they predictably cause mistaken identifications.”
HPD and the Rockingham County Sheriff’s Office were not among this egregious group. Still, both lacked certain measures the model policy suggests to limit bias when a “blind” officer — one who doesn’t know who the suspect is — cannot be found.
“The main concern that agencies expressed back in 2010 when we first realized just how serious the problem was, was that small departments couldn’t spare an extra officer to make a lineup blind,” Garrett said.
In these cases, the model policy recommends departments use a folder shuffle method in which half the folders have photos for the lineup and half are empty.
The procedure is meant to keep an officer who knows the suspect from influencing the witness through movement, expression or gesture, whether intentional or by accident.
HPD’s investigation division has difficulty keeping an officer “blind” in part because the unit works as a team, Monticelli said.
“We’re considered a small agency, especially the investigation unit,” he said. “If they’re working a major case, there’s not going to be anyone down there who doesn’t know who the suspect is.”
Monticelli found out about Garrett’s report at the Virginia Association of Chiefs of Police Conference, which ran Aug. 25 to Aug. 28.
“It was pointed out pretty directly … that this is something that just can’t wait,” he said. “The agencies need to review the policy and act on it.”
He said the department, while reviewing all its procedures to become accredited by the Virginia Law Enforcement Professional Standards Commission, has moved lineups to the top of the list, under the direction of Lt. Chris Rush, HPD’s lead investigator.
“There may be times when we won’t find someone who doesn’t know who the suspect is, so the investigator [who knows the suspect] might end up being the one [conducting the lineup],” Rush said. “Those are things that we’re addressing with the new policy.”
Rush, however, doesn’t believe any HPD officer who could identify the suspect in a lineup has ever manipulated an investigation.
“I have the utmost confidence that the way we have been doing things has not been in ways where it was violating someone’s rights or was swaying the investigation one way or the other,” he said. “We have very professional officers, but are there things that we can change to make it possibly better? Maybe so.”
The sheriff’s office policy doesn’t have a procedure for such circumstances either, but Rockingham County Sheriff Bryan Hutcheson said his jurisdiction’s size and number of officers would make such an occasion rare.
If it does come up, though, he has a solution.
“If it’s one of the big ones where everybody knows … it’s a simple fix. I could call Culpepper, the local headquarters for the state police. ... They wouldn’t know anything, they wouldn’t recognize any of the names or any of the people and they certainly wouldn’t have read any of the newspapers,” Hutcheson said.
Hutcheson said that with his department’s policy already seven years old, it’s probably time to look it over.
“Putting [the folder shuffle] in the verbiage of the policy, that would probably be a good thing and accomplish our update/revision,” he said.