Virginia delegate aims to ban suggestive show-up identifications by police

Delegate Cliff Hayes seeks to ban suggestive show up identifications by Virginia police officers
Posted at 1:42 PM, Jan 31, 2022
and last updated 2022-01-31 18:18:13-05

CHESAPEAKE, Va. – A state delegate wants to ban suggestive show up identifications by police departments in Virginia.

“Certainly, in any instance, we want to make sure that we [bring criminals] to justice, but at the same time we want to make sure we have the correct persons,” said Del. Cliff Hayes.

While the Virginia Department of Criminal Justice Services urged police departments to eliminate the use of suggestive show ups in 2011, Del. Hayes’ bill seeks to ban “the use of a show-up identification by any law-enforcement officer,” and makes certain that “no evidence discovered or obtained as the result of a show-up identification shall be admissible in any trial, hearing, or other proceeding.”

Hayes introduced HB 1209 during the legislative session after pushing for the release of Brian Faulcon, a former Chesapeake basketball coach convicted of robbing a pizza delivery woman in Chesapeake. Former Gov. Ralph Northam pardoned Faulcon days before leaving office earlier this month following a News 3 investigation. The News 3 team of investigators learned DNA evidence did not connect Faulcon to the crime and phone records suggest Faulcon was texting at the time of the robbery. Faulcon served nearly five years in prison before his release.

“It just goes to show that there are people that listen and saw my case and saw the injustice that has been done,” said Faulcon moments after his release from prison. “It's just a great feeling to be here free.”

Faulcon has maintained his innocence ever since his arrest in 2012, when police apprehended Faulcon and his friend Branden Smith moments after a pizza delivery woman was robbed in a nearby neighborhood. Police presented the men in handcuffs to the distressed victim for identification.

“I got handcuffs behind my back. I’m surrounded by police. I look guilty,” Faulcon said.

Memory experts told News 3 it was a textbook example of a suggestive show-up identification, which is when an officer brings a witness to see someone they've already apprehended.

"When you're saying is this the person, it's really easy to say yes," said Dr. Jeffery Gibbons, a memory and cognition expert and professor at Christopher Newport University.

According to the Innocence Project, mistaken identifications are the leading cause of wrongful convictions. Gibbons said show up identifications can lead an already traumatized victim to believe they have the right person. However, he said there is a better way to be more certain the victim is identifying the right person.

"You would want to bring in several people and not have them in handcuffs, or have all of them in handcuffs," said Dr. Gibbons. "They should look relatively equal. [Then you say] can you pick the person out here?"

Faulcon’s attorneys later argued the show-up identification of Faulcon was suggestive and should have been thrown out. However, a judge ruled against their request.

“I think in her heart she firmly believes Brian committed the offense, but that doesn't mean he did it,” said one of Faulcon’s former attorneys, James Broccoletti, who represented Faulcon during the first trial in 2013. “These two poor guys just happen to be smoking marijuana in a car close by. It was a perfect storm. The moon the stars and the sun aligned, but aligned in the wrong way.”

The victim never wavered about her identification of Faulcon – not at the first trial that ended in a hung jury in 2013, or the mistrial in 2016 due to an issue with a juror, or at the trial that ended in his conviction in 2018. A judge sentenced Faulcon to serve more than five years in prison before his release in 2022.

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