does Ohio law say about how police interrogations and lineups are conducted?
A: Senate Bill 77
(SB 77), which became effective on July 6, 2010, is a comprehensive criminal
justice reform law. Its goal was to help prevent wrongful convictions and to
make it easier to obtain DNA testing when DNA testing could undermine
confidence in a “guilty” verdict. In addition to its DNA testing provisions,
the law reforms police interrogations and lineups in order to assist in
preventing wrongful convictions. This article addresses the parts of the law
pertaining to police interrogations and lineups.
Q: Why did SB 77 change how line-ups and
interrogations were done in criminal cases?
A: DNA testing does
not solve the problem of wrongful convictions. Biological evidence is found in less
than 10 percent of criminal cases. However, the same factors lead to wrongful
convictions, regardless of the presence of biological evidence. These factors can also confound
investigations from the earliest stages, and critical time is lost while police
are distracted from the real perpetrator, focusing instead on building the case
against an innocent person.
Mistaken eyewitness identifications
contributed to approximately 72 percent of the 317 wrongful convictions in the
United States that have been overturned by post-conviction DNA evidence. Many
variables affect the reliability of an eyewitness identification, including: the type of lineup used; the selection of
“fillers” (members of a lineup or photo array who are not the suspect); blind
administration; instructions to witnesses before identification procedures; administration
of lineups or photo arrays; and communication with witnesses after they make an
identification. Each of the above variables impacts the reliability of an
eyewitness identification. For example, a study of the first 250 DNA
exonerations showed that mistaken eyewitness identification was a factor in 160
of those cases, and that suggestive remarks to the witness by law enforcement
was a factor in 28 percent of the 160 cases. Such remarks are often made as a
result of the officer’s familiarity with the case.
In about 30 percent of DNA
exoneration cases, innocent defendants made incriminating statements, delivered
outright confessions, or pled guilty. These cases show that confessions are
sometimes motivated by external influences rather than internal knowledge or
actual guilt. Researchers have determined that these factors contribute to or
cause false confessions:
• real or perceived intimidation of the
suspect by law enforcement;
• use of force or perceived threat of
force by law enforcement during interrogation;
• compromised reasoning ability of the
suspect, due to exhaustion, stress, hunger, substance use, and, in some cases,
mental limitations, or limited education;
• devious interrogation techniques,
such as untrue statements about the presence of incriminating evidence;
• the suspect’s fear that failure to
confess will yield a harsher punishment.
Electronic recording helps provide
an objective record of what happened. The law does not specify how recording
should be done, but research suggests these “best practices”:
recording should show both the suspect and the interrogator or just the
interrogator, and should record the entire interrogation.
If the video only shows the suspect, the jury
should only be given the audio portion or the transcripts from the interview.
Research suggests that jurors tend
to disregard the interrogator’s appearance when the video camera is fixed upon
the suspect. This may lead jurors to conclude that the suspect confessed freely,
even when that confession is false. Recording can also help law enforcement
with the investigation and prevent disputes about what occurred during
has SB 77 affected identification lineups in criminal cases?
A: SB 77 outlines
a number of specific procedures for law enforcement agencies conducting live or
photo lineups to control the variables impacting the reliability of eyewitness
identifications. These procedures are designed to help the witness identify the
perpetrator rather than an innocent person in the line-up that looks most like
the perpetrator. SB 77 also says that the officer conducting the line-up must not
know the suspect’s identity or which lineup member the eyewitness is viewing,
unless the officer can give a good reason why this requirement is not practical
in the particular situation. The jury may consider whether an eyewitness
identification is reliable based on whether a lineup was conducted according to
the procedures described in SB 77.
does SB 77 say about interrogations of suspects?
A: SB 77 presumes that all recorded statements in criminal
cases are voluntary if they occur in a place of detention and are made by a
person suspected of aggravated murder, murder, voluntary manslaughter,
involuntary manslaughter, first- or second-degree felonious aggravated
vehicular homicide, rape or sexual battery. The law does not require
interrogations to be recorded, but law enforcement personnel must keep any audio
and audio-visual recordings until all appeals, and post-conviction relief
proceedings (both state and federal) are finished, or the time limit for
appeals has passed. The defendant can ask the court to keep the recordings longer.
This “Law You Can Use” column was
provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Carrie Wood of
the Ohio Public Defender’s Office. The column offers general information about
the law. Seek an attorney’s advice
before applying this information to a legal problem.
Labels: DNA evidence, DNA testing, Ohio's Innocence Protection Act, police interrogation