The D.C. Council heard testimony today on proposed reforms regarding how police conduct eyewitness identifications during criminal investigations, with the local criminal defense bar pitted against prosecutors and law enforcement.
The bill would require training on best practices and mandate that police use certain procedures in most cases, including "double-blind" lineups, in which the officer administering a photo array doesn't know who the suspect might be. The measure would also put in place sanctions for failing to follow procedures that could affect how evidence is used and considered in court.
Proponents of the bill at today's hearing included the D.C. Public Defender Service, the D.C. Association of Criminal Defense Attorneys, and a woman who, having made a wrong eyewitness identification after she was raped, became an advocate for reforming police procedures. The U.S. attorney's office, Metropolitan Police Department, and police union testified against the measure.
Sandra Levick, chief of the public defender service's special litigation division, said that the changes proposed were widely considered best practices and shouldn't be controversial. "We want clear laws, and we want them so they can be enforced by our judiciary," she said.
Levick was accompanied at today's hearing before judiciary and public safety committee by Kirk Odom, who was exonerated last year by DNA evidence after serving 20 years in prison for a rape he did not commit. Odom's story – he was convicted largely based on eyewitness identification – was a rebuke to law enforcement testimony that the measures weren't necessary, Levick said. "We're not immune from the laws of social science. We're fallible like every other jurisdiction," she said.
Richard Gilbert, co-chair of the legislative committee of the local criminal defense lawyers' association, called it an "excellent bill," but recommended modifying the remedies for non-compliance to put more of a burden on prosecutors to show that eyewitness evidence was still reliable even if police didn't follow required procedures.
In opposing the bill, Assistant U.S. Attorney Patricia Riley argued that it wouldn't improve on procedures already in place or that the Metropolitan Police Department was working to implement, and could pose risks to public safety. She noted that the department was finalizing changes to a general order governing eyewitness identification procedures that would incorporate almost all of the proposed bill's provisions, with the exception of the sanctions.
Riley said that prosecutors had just as much of an interest in avoiding misidentifications. "This is not something we take lightly or do only because we want to close a case. That is not our objective," she said.
Metropolitan Police Department Assistant Chief Peter Newsham noted that the number of known wrongful convictions for eyewitness misidentification was very small and, in most cases, took place before 1990. The bill is an "unnecessary effort to micromanage the complex processes involved in criminal investigations," he said. Kristopher Baumann, head of the local police union, warned that passing the bill could make it harder for police to adjust if best practices for eyewitness identifications changed in the future.
Committee Chair Tommy Wells (D-Ward 6) asked witnesses about whether it mattered if police showed photos to witnesses in groups or one at a time, a distinction the bill doesn't make at the moment. Karen Amendola of the Police Foundation, a nonprofit that researches law enforcement practices and policy, said there was a growing body of research that has found that showing photos one at a time reduced the likelihood of misidentification.
Riley countered that she thought the research was unresolved. She added that the same body of research cited by Amendola also indicated that showing photos one at a time reduced the number of correct identifications, along with misidentifications.
The bill was introduced by Council Chair Phil Mendelson (D) and Councilmember Mary Cheh (D-Ward 3), both of whom also attended today's hearing. Similar legislation was proposed in 2004, 2008 and 2009, but did not go to a vote, according to legislative records.