Q:       What 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”:

·       The 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 interrogation.

Q:       How 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.

Q:       What 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.

Q:       What does Ohio law say about DNA testing?

A:        Senate Bill 77 became effective on July 6, 2010, and was hailed as one of the nation’s most comprehensive criminal justice reform packages. Its goal was to help prevent wrongful convictions and make it easier to obtain DNA testing when testing might undermine confidence in a “guilty” verdict. The provisions related to post-conviction DNA testing are as follows: 1) a requirement that DNA evidence be preserved for all “serious crimes”; and 2) expansion of Ohio’s post-conviction DNA testing law to include those released from prison but still under state supervision. The legislature also re-defined “definitive DNA test” to allow applicants to request post-conviction DNA testing, even if testing was already done, in case new DNA technology might reveal new information. This article addresses only the provisions of the law regarding DNA evidence.

Q:       How might DNA testing help expose a wrongful conviction?
A:        A wrongful conviction might be exposed if, for example, DNA evidence is certain or highly likely to contain biological evidence from the perpetrator(s) of the crime.   

            Or, if the prosecutor linked evidence to a defendant at trial and DNA testing can disprove the purported link, and it may also undermine the reliability of other evidence in the original case. DNA testing in such cases may not only exclude the defendant, but also identify another individual as the source.  In other cases, even an alternate suspect’s DNA found on any item from the crime scene may help exonerate the defendant and point to the alternate suspect as the perpetrator.

            Finally, a wrongful conviction might also be exposed in a case where the perpetrator left biological material on several different items. If DNA testing can show that the perpetrator likely touched items from the crime scene, and  that they all have the same profile, which does not match the defendant’s, then the defendant's innocence may be established and  the perpetrator’s guilt revealed. 

              

Q:       What “serious crimes” qualify for preservation of DNA evidence?

A:        “Serious crimes” such as murders or aggravated murder require that biological evidence be kept as long as the crime remains unsolved. Biological evidence must be kept for 30 years in unsolved cases involving: voluntary manslaughter; involuntary manslaughter; aggravated vehicular homicide, vehicular homicide, and vehicular manslaughter when they are felonies of the first or second degree; rape; attempted rape; sexual battery; and gross sexual imposition where the victim is underage.

            Biological evidence must be kept for 30 years or until incarceration or supervision expires (whichever is shorter) for someone who has been convicted of or pleads guilty to a “serious crime,” or is adjudicated a delinquent child. If, after 30 years, the person remains incarcerated, the biological evidence is kept until the person is released or dies. If someone pleads guilty or no contest and appeals have been exhausted, the state may destroy the evidence five years after the plea unless the person who pled asks the court to keep the evidence and the court agrees. These requirements apply to evidence the state possessed when Senate Bill 77 was enacted, and to evidence gathered since.

 Q:      Who must submit DNA to the state?

A:        Anyone who is at least 18 years old and was arrested on or after July 1, 2011 for a felony offense, and anyone presently incarcerated or under community control sanctions for a felony offense, must submit to DNA collection. DNA also must be collected from individuals who commit these misdemeanor offenses: 1) attempt to commit, or complicity in committing, unlawful sexual conduct with a minor; 2) a misdemeanor offense arising from a charge of aggravated murder, murder, kidnapping, rape, sexual battery, unlawful sexual conduct with a minor, gross sexual imposition, aggravated burglary; 3) a misdemeanor offense of interference with child custody that would have been considered kidnapping or extortion before July 1, 1996; and/or 4) a sexually oriented or child-victim misdemeanor offense.

Q:       I was convicted of a felony offense. Can I request DNA testing to challenge my conviction?

A:        You, as an offender, may request state-funded DNA testing if a judge or jury convicted you of a felony offense, and one of the following applies: 1) you are serving a prison term, have been paroled, are on probation or post-release control, or you have been released from prison under a term of community control sanction for that felony; 2) you were sentenced to and are under community control sanction for that felony; 3) the felony was a sexually oriented offense or child-victim oriented offense, and you must register as a sex offender. You are not eligible to apply for state-funded DNA testing if you pled guilty or no contest, but if you do not qualify for state-funded testing, you can seek post-conviction DNA testing through other means.

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.

Q:       What is post-conviction relief?

A:        Post-conviction relief allows a person who has been convicted of a criminal offense or who a court has determined to be a delinquent child to challenge the conviction with off-the-record evidence.  Ohio’s law (Ohio Revised Code, Section 2953.21) requires that the person filing a petition for post-conviction relief must: 1) have been either convicted of a criminal offense or must be a child who the court has determined to be delinquent; 2) claim in the petition that a denial of his/her constitutional rights under either the Ohio or United States constitutions occurred  before trial, at trial, or during the pleading process; 3)  have attached to the petition documentary, off-the-record, support to prove that his or her rights were violated; and 4) raise all claims that may apply in the petition; any claim not raised in the petition will not be considered either then or in the future, assuming it could have been raised at that time.

Q:       How do I know if my constitutional rights have been denied?

A:        If you want to petition for post-conviction relief, you must show that you were denied rights the Constitution guarantees. For instance, you have the right to be effectively represented by counsel at trial, as well as the right to a fair trial and fair process surrounding any plea, the right to an unbiased jury, and the right to defend yourself. 

Q:       Where would I get off-the-record documentary support to put in my petition?

A:        Off-the-record documentary evidence is found outside of the trial court record (what happened inside the courtroom and all trial court filings) that helps to show that your constitutional rights were violated. For instance, if you are claiming that your lawyer failed to call an important witness in your defense, then you could attach an affidavit of that witness to support your allegation. Or, if you are alleging that the prosecutor failed to turn over documents to the defense at trial that would have helped you, then you could attach the relevant documents or records that should have been turned over. To uncover this evidence, you must investigate the case, which may include looking back to the record of the case, talking to witnesses, collecting relevant records, and/or hiring relevant experts. It is wise to request “discovery” and an evidentiary hearing so the court can consider additional information you may have that would help your case.

Q:       How do I file a post-conviction relief petition?

A:        You must file the petition in the trial court that sentenced you. The petition is due no later than 180 days after your trial transcript is filed in the court of appeals in the direct appeal case. If neither you nor your attorney filed a direct appeal of your conviction, then you must file your petition no later than 180 days after a direct appeal notice would have been due. That typically means that your post-conviction relief petition would be due 210 days (180 days + 30 days) after the trial court has sentenced you. The claims may not be more than three pages long, but that page limit does not include the documentary support you will be attaching. 

Q:       How long does the prosecutor have to respond to the allegations in the petition? Can a petition be amended after it’s filed?

A:        The prosecuting attorney must respond to the petition within 10 days of its filing unless he or she can show a good reason for extending that time period. You may amend a petition at any time before the prosecutor files a response. This means you can supplement your previously-filed petition with anything new you discover. Once the prosecutor has filed a response, you can only amend if you first ask the trial court and the court gives you permission.

Q:       What will the court look at in considering the petition?

A:        The court must consider the entire record of the case in deciding whether to grant the post-conviction appeal. The law also says that, unless the contents of the petition and the files and records of the case make it obvious that the person is not entitled to relief, the court must hold a prompt hearing on the issues before granting or denying relief.  

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Kimberly Rigby at the Office of the Ohio Public Defender. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.

Q:       I want to build a house near a small lake, but a friend said the property might be a wetland. What is that, exactly?

A:        Wetlands are areas “inundated or saturated” enough by surface or groundwater that they can and generally do support vegetation adapted for living in saturated soil conditions. As such, wetlands are valuable because they improve water quality, help control flood waters, provide a habitat for fish and wildlife, and are aesthetically beautiful. For these reasons, state and federal agencies like the U.S. Environmental Protection Agency (U.S. EPA), the U.S. Army Corps of Engineers (Army Corps), and the Ohio Environmental Protection Agency (Ohio EPA) impose and enforce regulations meant to preserve and protect wetlands. If you are planning to build a home or start any project that could impact wetlands, you should be aware of these regulations. 

            U.S. EPA and a few state agencies have enforced wetlands regulations against individual homeowners for failing to obtain proper permits before undertaking activities that impact wetlands. For example, in 2012, the U.S. Supreme Court decided the case of Sackett v. U.S. EPA., which involved a 2/3-acre residential lot near Priest Lake in Idaho. The couple purchasing the lot filled part of it with dirt and rock in preparation for constructing their dream home. Shortly thereafter, U.S. EPA issued a compliance order informing them that the lot contained jurisdictional wetlands, and that filling the lot with dirt and rock without a permit violated the Clean Water Act. The order directed the couple to restore the property to its original condition or risk being fined up to $75,000 per day in penalties. The couple prevailed in the issue before the Supreme Court, which involved their right to appeal the order in an administrative proceeding, but they have yet to reach resolution with U.S. EPA or to resume construction of their home. 

Q:       What should I know about wetlands regulations before building or adding on to a home?

A:        Whether you are building your dream home, or merely adding a room, swimming pool, patio, or deck to your home, you should determine if there is a wetland on or near your property that your project might impact. It is not always easy to tell if an area is a wetland, especially if it is only “wet” for part of the year. You may need to consult with a wetlands delineation expert who will examine the vegetation, soils, and hydrology to determine if your property contains a wetland, and if so, its location, size and quality. 

Q:       What must I do if I want to build in a wetland? 

A:        If your project will impact a wetland that adjoins or is close to a navigable waterbody, you must get a Clean Water Act Section 404 (individual or nationwide) jurisdictional permit from the Army Corps. If the wetland is isolated from navigable waters, you must get an Isolated Wetlands permit from the Ohio EPA. Most single-family residential construction projects are eligible for a streamlined Nationwide Permit 29 (as long as less than half an acre of wetlands will be disturbed). If you are eligible, you will be able to avoid the more burdensome process of getting an individual permit. Overall, the location, size, and quality of the wetlands to be impacted will determine the type of permit required, and where to obtain it. Individual permits from the Army Corps require a separate state Section 401 water quality certification from Ohio EPA. You must comply with the requirements of your permit. 

            In addition to the cost and time associated with preparing and filing these applications, you can expect to wait at least 30 days for a nationwide permit and as many as 60 days for an isolated permit before the Ohio EPA or the Army Corp approves your permit, and you may wait up to 180 days or longer for an individual permit.

Q:       Can I avoid getting a permit? 

A:        If only part of your property is a wetland, you may be able to plan the construction and design of your project in a way that avoids impacting the wetland.

Q:       What if I receive a notice from the government that I have violated a wetlands requirement? 

A:        If you get a notice of violation, you may have to pay a fine, and you will probably have to eliminate the violation by restoring the property to its original state or obtain an after-the-fact permit to make it legal. Depending on the circumstances, you may need to consult with an environmental attorney and possibly a wetland delineation expert. 

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association.  This article was prepared by Chris Kim Kahn, an attorney with Frost Brown Todd LLC.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       I was watching the Big Bang Theory on TV, and Sheldon was sent to jail for contempt of court because he insulted the judge. Can a person really be jailed for insulting a judge?

A:        Yes. Courts have inherent power to penalize a person for “contempt of court,” and even send that person to jail. The intent of the “contempt” law is to uphold and ensure the effective administration of justice, secure the dignity of the court and affirm the supremacy of law. A court without contempt powers would be unable to perform its proper functions.    

Q:       Before being jailed for contempt, would Sheldon (or anyone) have a right to know the charges against him, or to have an attorney or a trial?

A:        No. When Sheldon insulted the judge, the court could not continue with its business, which interfered with the administration of justice. Because the judge directly experienced Sheldon’s contemptuous conduct, he could find Sheldon in “direct summary contempt.” The rationale behind summary contempt is that a trial is not needed because the court has directly experienced the contemptuous act and because the court must be able to act immediately to prevent a person from disrupting the court’s business.

Q:       The judge would only release Sheldon from jail if he apologized to the court. Can a court really force a person to apologize by holding him in jail?

A:        Yes. When a judge sentences a person to jail until he or she performs an act ordered by the court, that person is said to “have the key to the jailhouse door.” This means that the jailed person can be released once he or she has followed the court’s order. 

Q:       Could the judge have ordered Sheldon to pay a fine instead of sentencing him to jail?

A:        Yes. Many courts punish contempt of court by ordering the person to pay a fine for contemptuous conduct.

Q:           What is the difference between criminal and civil contempt?

A:            In criminal contempt cases, the court imposes a fine or jail time to penalize a person for something he or she has already done and to uphold the court’s rightful authority. In civil contempt cases, the court is trying to make a person comply with a court order, and the person can always avoid punishment by complying with the court’s order. In Sheldon’s case, the court imposed a criminal sanction by ordering Sheldon to go to jail for insulting the court, but then imposed a civil type remedy where Sheldon could get out of jail by apologizing to the court.

Q:       Would Sheldon have had the right to appeal the court’s contempt order to a higher court?

A:        Yes. Sheldon could have appealed the contempt of court order. If the trial court does not follow the correct procedures, a contempt order can be reversed on appeal. For example, the court can only impose a summary contempt order if the judge witnessed the contemptuous act and it interfered with the administration of justice. Further, the punishment for contempt must fit the contemptuous conduct and cannot be vindictive. Finally, if the contemptuous act was committed outside the court’s presence, the contempt would be “indirect” and the person found in contempt would have a right to a hearing. In that hearing, evidence of the contemptuous conduct must be presented.

Q:       If I am ever in a situation like Sheldon’s, how can I make sure I’m not charged with contempt?

A:        Always be respectful to a judge when entering a courtroom. A judge has contempt powers over everyone who enters the courtroom including witnesses, parties, attorneys and even spectators. Silence your cellphone before entering a courtroom and never make any gestures or create any type of disturbance when a witness is testifying. Nobody, not even Sheldon, wants to be found in contempt of court.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Copley attorney Philip Bogdanoff. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.