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.