Virginia suggestive identification – 2 of 3 appellate judges allow such an ID where attempted robber wore a bandana

Virginia suggestive identification police procedures should never happen. As a Fairfax criminal lawyer, I know that human nature alone means that we will continue to see suggestive police procedures to identify criminal perpetrators. The best that can be done is to severely reduce the frequency of such suggestive procedures, and for police to be looking over their shoulder about possible court suppression of such identification of such procedures. Particularly disturbing is this past week’s Virginia Court of Appeals affirmance of the trial court’s refusal to suppress a police-suggestive identification procedure where the perpetrator wore a bandana covering “his mouth, nose, and lower face”, and where the police officer described the suspect as “like mixed, so he looks almost Hispanic. He’s not a white guy” after the victim “incorrectly said that he thought the perpetrator was white.” Sample v. Virginia, Record No. 0161-21-1 (Va. App., June 28, 2022) (unpublished).

Beware misidentification with a fully uncovered face let alone with a covered face

The victim in the Sample Virginia suggestive identification case was with his son loading granite onto a trailer at a warehouse, when a man approached him with a BB gun, and told him to hand over his wallet. Instead, the victim told his son that the perpetrator had a BB gun, struggled to disarm the perpetrator, and the perpetrator ran away. The victim declared to the investigating police officer that “I will never forget those eyes directly above the barrel of the weapon.” This is a variation on the theme of robbery victims insisting that they will never forget the perpetrator’s face. However, so often a crime victim only gets a split second view of the perpetrator, when so often we ourselves mistakenly think we recognize someone on the street for someone we know well. Add to that the increased risk of misidentification from cross-racial identification, and we repeatedly have the makings of reasonable doubt when a conviction hinges on witness identification of a person the witness only sees for a split second.

Here is what makes Sample a very disturbing Virginia suggestive identification criminal case

In Sample: “While the officer was taking the victim’s report, the victim wondered aloud whether the
perpetrator lived in one of the nearby residences. In response, the officer stated, ‘There’s a guy that lives up there. He’s like mixed, so he looks almost Hispanic. He’s not a white guy, but he’s a skinny build.’ The victim replied, ‘He didn’t look mixed to me, you know, he looked white to me.'” Sample. Around 30 minutes later, the investigating police officer returned to the victim and said: “’I have a pretty good idea of who it may be because of the direction he ran… I have a picture of somebody that I was thinking about but I don’t know if—you said you just saw their eyes.’ The officer then showed the victim a mugshot of Mr. Sample on his cell phone. The victim looked at the photo and immediately said, ‘Yep.’ The officer
inquired, ‘That’s him?’ The victim repeated, ‘Yep.'” Id. 

Why does the Virginia Court of Appeals in Sample okay the non-suppression of the ID procedure?

As usual, Sample Virginia suggestive identification case was decided by a three-judge panel, and here the two-judge majority sharply differs from the dissent. Both sets of judges apply the Supreme Court’s Neil v. Biggers five-factor approach for determining the admissibility of an out of court identification. Biggers, 409 U.S. 188 (1972), when the “‘identification procedure [] is both suggestive and unnecessary.’” Biggers (quoted by Sample). The five-factor approach considers “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Biggers (quoted by Sample). In affirming Sample’s conviction, the majority is not bothered that a bandana covered the perpetrator’s face from the nose down, but that plus the limited lighting bothered the dissent (whom the majority describes describes as characterizing “the facts in the light most favorable to appellant” when on appeal the facts are supposed to be viewed in the light most favorable to the the prosecution). Perhaps if this had been a jury trial rather than bench trial, and if DNA found on the BB gun was not identified by a DFS DNA expert as connecting to Sample, the majority may have not been as resolute to sustain Sample’s conviction for attempted robbery.

What should I do if I am falsely accused of a crime?

Whether you are falsely or correctly accused of a crime (whether from a Virginia suggestive identification process or otherwise), you are facing a potentially harsh Virginia criminal justice system where a conviction can scar your reputation for the rest of your life and can result in a stinging sentence. Do not take any criminal accusation lying down. Many of Fairfax criminal lawyer Jonathan Katz’s acquittals are for those who have in fact committed crimes. Acquittals do not only happen for innocent people, and your chances of victory in Virginia criminal court can be enhanced by your obtaining the right lawyer.

Fairfax criminal lawyer Jon Katz thoroughly delights in fully and spiritedly defending those accused of Virginia DUI, felony and misdemeanor offenses, never satisfied before finding and pursuing the best possible defense. Call 703-383-1100 for your free in-person initial confidential consultation with Jon about your court-pending case.