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DNA testing, and more

Last year, in District Attorney's Office v. Osborne, the US Supreme Court confronted the question of whether the Due Process Clause required Alaska to provide DNA testing to an inmate claiming actual innocence.  Despite the somewhat tenuous nature of Alaska's case -- it had fought Osborne's requests for DNA testing for a decade, and at oral argument before the 9th Circuit, when pressed for their reasons for opposition, told the judges that they were not "willing or able" to answer that question "at this time" -- the Court by a 5-4 vote rejected Osborne's argument, holding that it was up to the individual states to provide such a remedy if they chose.

The State of Ohio does provide such a remedy, and has since 2003.  Indeed, last week Ohio took another big step in the direction of allowing DNA evidence to provide an answer to lingering questions of guilt or innocence:  SB 77, which extends the right to DNA testing to parolees and those on the sex offender registry, passed the Ohio House by an 85-7 vote.  It goes back to the Senate, where it will very probably be passed this week, and then on to the governor for his anticipated signature.

Interestingly, while the provisions concerning DNA testing have garnered most of the headlines, the other provisions of the bill will probably have a far more pronounced effect on criminal law in this state.

I've mentioned repeatedly what most criminal practitioners know:  that mistaken eyewitness identifications play a huge role in wrongful convictions, and that many "confessions" are the result of police manipulation and coercion.  SB 77 takes aim at both of those. 

Confessions are governed by new section 2933.81, which require that certain custodial interrogations be electronically recorded.  "Certain" is pretty limited at this juncture:  only aggravated murder, murder, voluntary manslaughter, rape, attempted rape, sexual battery, and involuntary manslaughter or aggravated vehicular homicide that's a first or second degree felony  make the grade.  What's more, the covered interrogations must take place in a "place of detention" -- a jail, police or sheriff's station, holding cell, and the like.  A "law enforcement vehicle" is specifically excluded.  On the plus side, "electronically recorded" means an audio and visual recording. 

If the cops make the recording, the defendant's statements are presumed to be voluntary, and he has the burden of proving they weren't.  It's not clear exactly how big a change this is.  There are a number of Ohio cases from the 1970's that indicate that while the State has the burden of proving that Miranda warnings were given, the defendant has the burden of proving that his statements were involuntary, at least to the extent of showing they were coerced or otherwise improperly obtained.  There's some much more recent Federal case law to the contrary, but nothing dispositive.  It might be argued that if the police don't record the interrogation, they not only lose the effect of the presumption, but assume the burden of proving that the statement was voluntary. 

Other than that, though, there's not much consequence for failure to record the statement:  the statute specifically holds that there's no penalty for the agency if the officer fails to make the recording, that the failure to record doesn't create a private cause of action against the officer, and that it doesn't provide a basis for excluding or suppressing the statement.

The provisions regarding identification procedures, which are found in new section 2933.83, are much more extensive and demanding.  The big change here is the implementation of a "double-blind" method of performing lineups and photo arrays.  The concept is borrowed from science.  For example, in tests comparing the effectiveness of a particular medication, neither the person giving the pill nor the person taking it know whether it's the real deal or merely a placebo; this prevents the dispensing person from giving conscious or unconscious cues.  Same thing here:  there's a "blind administrator" who displays the photographs or conducts the lineup, but doesn't know who the suspect actually is.  The procedure for achieving this is set out in the statute, in detail that's extremely uncommon to see in a piece of legislation.  I'm not even going to begin to describe it here, but the procedure just for photographic arrays goes on for nine subsections.  What's more, the statute specifically requires law enforcement agencies to adopt specific procedures for live and photo lineups, and imposes minimum requirements for those procedures.

And, unlike the provision regarding recording confessions, there are some real teeth here.  Failure to conduct lineup or photo arrays according to the new statutory requirements "shall be considered by trial courts in adjudicating motions to suppress eyewitness identification resulting from or related to the lineup," and "shall be admissible in support of any claim of eyewitness misidentification resulting from or related to the lineup as long as that evidence otherwise is admissible."  What's more, "the jury shall be instructed that it may consider credible evidence of noncompliance in determining the reliability of any eyewitness identification resulting from or related to the lineup."  The statute also requests the Ohio Judicial Conference to review and revise jury instructions regarding eyewitness identification.

Oddly enough, the new provisions regarding confessions will probably have more of an effect on reducing wrongful convictions than the the much more extensive provisions on eyewitness identifications.  While the problem with false confessions is directly traceable to interrogation techniques that might be curbed if the interrogations were videotaped, false identifications are usually not the result of faulty procedures, but of the inherent inaccuracy of eyewitness identifications, especially of strangers.  (The one police technique which probably does aid in producing false identifications, the showup or "cold stand" -- when a single suspect is shown to the witness -- isn't affected by the new statute.)  Indeed, the focus on procedure rather than the real problem could have the unintended effect of giving unwarranted enhancement to the credibility of identifications:  judges and jurors will be led to believe that if the procedures were followed, the identification was accurate.

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