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On April 5, 2010 Senate Bill 77, a comprehensive criminal justice reform package, was signed into law. SB 77 stemmed from a joint project between the Ohio Innocence Project and the Columbus Dispatch and the passage thereof was the culmination of the efforts of many individuals, too numerous to list here. Among other changes, SB77 creates:

• Expansion of DNA testing and technology

• Establishment of statewide standards of biological evidence retention

• Establishment of police incentives for the recording of all interrogations from beginning to end in certain specified instances

• A requirement for live lineups and eyewitness photo identification procedures to be conducted in double-blind fashion

• An expansion of Ohio’s post-conviction DNA testing law to allow for DNA testing to be done during the parole phase of the justice cycle

Because of the significant impact that SB 77 will undoubtedly have on Ohio’s criminal justice system, practitioners must have a thorough understanding of how the new law actually operates. What follows is an outline of some of SB77’s most important provisions, including:

DNA testing; retention of biological evidence; live and photo lineup procedures; and the recording of custodial interrogations.

1. EXPANSION OF DNA TESTING: SB 77 makes several important changes regarding the availability of DNA testing. First, SB 77 greatly expands the categories of convicted felons for whom DNA testing is available. Under prior law, Ohio, like many states, provided those convicted of a crime with limited access to DNA testing. Before the new law, a convicted felon could only submit an application for DNA testing if the felon was an “eligible inmate”. With the passage of SB 77, however, access to DNA testing is no longer reserved solely for those convicted felons who are considered to be “eligible inmates”. The new law replaces the term ‘eligible inmate” with the term “eligible offender”, thereby broadening the categories of convicted felons for whom DNA testing is available. Under the new law, DNA testing is now available to post-conviction offenders who (1) are on probation or parole, (2) are under supervised judicial release, (3) are under post-release control or community control, or (4) are on the sex offender registry.

Second, the new law includes a sweeping provision that requires anyone 18 years of age or older who is arrested for a felony offense after July 1, 2011 to submit to a DNA collection procedure administered by the head of the arresting law enforcement agency. Previously, Ohio law only allowed for DNA collection from those actually convicted of a crime. Not surprisingly, many civil liberties groups are reportedly opposed to this provision of the new law. Similarly, some civil liberties groups are opposed to the provision in the law that eliminates access to post-conviction DNA testing for felons who plead guilty or no contest.

Despite these concerns, the expansion of DNA testing is significant step towards reducing wrongful convictions and exonerating the innocent in the State of Ohio.

2. RETENTION OF BIOLOGICAL EVIDENCE: With the passage of SB 77, members of law enforcement must now follow several highly specific and uniform procedures when collecting and preserving biological evidence. First, SB 77 requires law enforcement to collect and preserve biological evidence not only at a crime scene, but also whenever a suspect who has been arrested on a felony charge is processed at a jail. Specifically, the head of the arresting law enforcement agency must cause the DNA specimen to be collected from the person during the intake process at the jail, community-based correctional facility, detention facility, or law enforcement agency office or station to which the arrested person is taken after the arrest.

Second, with regard to the types of biological evidence that must be retained, SB 77 requires that, for certain specified offenses, “governmental evidence-retention entities” must preserve sexual assault kits and any item that contains (1)blood, (2)semen, (3)hair, (4)saliva, (5)skin tissue, (6)fingernail scrapings, (7)bone, (8)bodily fluids, or (9)any other identifiable biological material that was collected as part of an investigation and might reasonably incriminate or exonerate a suspect for certain specified periods of time.

Third, under the new bill, the “specified offense” for which biological evidence must be retained include the crimes of aggravated murder, murder, voluntary manslaughter, first and second degree felony, involuntary manslaughter, first and second degree felony aggravated vehicular manslaughter, rape, attemptted rape, sexual battery and certain gross sexual imposition offenses.

Finally, with regard to how long the biological evidence must be preserved, in cases involving aggravated murder or murder, evidence retention entities must secure the evidence “for the period of time that the offense or act remains unsolved”. For other offenses where the case remains unsolved, however, the biological evidence must be maintained for thirty (30) years from the time of collection. Similarly, in cases resulting in a conviction, the evidence must be secured until the earlier of either the date on which the offender fully completes his sentence or thirty years. However, if after the period of thirty years, the offender remains incarcerated, the evidence retention entity must secure the biological evidence, until the person is released from incarceration or dies.

3. LINEUPS: According to a study conducted by the Innocence Project, eyewitness misidentification testimony was a factor in 75% of the cases that resulted in wrongful convictions. In an effort to reduce the risk of misidentification, SB 77 established procedures that law enforcement agencies must follow when conducting live or photo lineups. Specifically, the new law requires that, unless impracticable, police departments must now use a “blind” or “blinded” administrator to conduct the lineup. This means that the person conducting the lineup does not know the identity of the suspect (“blind”) or that he or she knows who the suspect is but does not know which lineup member is being viewed by the eyewitness (“blinded”)

ORC 2933.83 also provides that, when it is “impracticable” to use a “blind” or “blinded” administrator, the administrator must state, in writing, the reason for that impracticability. In addition, “[t]he administrator conducting the lineup must make a written record that includes (a) All identification and nonidentification results obtained during the lineup, signed by the eyewitnesses, including the eyewitnesses’ confidence statements made immediately at the time of the identification; (b) The names of all the persons present at the lineup; ( c) The date and time of the lineup; (d) Any eyewitness identification of one or more fillers in the lineup; (e) The names of the lineup members and other relevant identifying information, and the sources of all photographs or persons used in the lineup.

Further, ORC 2933.83(B)(5) requires the administrator to “inform the eyewitness that the suspect may or may not be in the lineup and that the administrator does not know who the suspect is.” ORC 2933.83( C) sets forth consequences in the event that members of law enforcement fail to comply with the procedures discussed above. Evidence of failure to comply with any of the provisions of ORC 2933.83 or with any procedure for conducting lineups that has been adopted by the law enforcement agency that conforms to ORC 2933.83(B)(1) to (5) results in the following consequences:

• Such evidence shall be considered by the trial court in adjudicating motions to suppress eyewitness identification resulting from or related to the lineup;

• Such evidence 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; and/or

• Whenever such evidence is introduced at trial, 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.

4. CUSTODIAL INTERROGATIONS With regard to “custodial interrogations”, the new Ohio law encourages, but does not require, law enforcement agencies to electronically record the interrogations of persons who are suspected of the following criminal offenses:

ORC 2903.01 Aggravated Murder

ORC 2903.02: Murder

ORC 2903.03: Voluntary Manslaughter

ORC 2903.04: Involuntary Manslaughter (if a Felony 1 or 2 )

ORC 2903.06: Aggravated Vehicular Homicide (if a Felony 1 or 2)

ORC 2907.02: Rape and Attempted Rape

ORC 2907.03: Sexual Battery

The “encouragement” built into ORC 2933.81 is that all statements made during a custodial interrogation in a place of detention of persons suspected of the above-listed criminal offenses are “presumed to be voluntary if the statements made” are electronically recorded. In such circumstances, the suspect “has the burden of proving that the statements made during the custodial interrogation were not voluntary.”

However, violations of ORC 2933.81, in the form of unrecorded custodial interrogations in a place of detention of persons suspected of committing the above-listed offenses do not, statutorily, result in a corresponding presumption of involuntariness. ORC 2933.81( C) states that “A failure to electronically record a statement as required by this section shall not provide the basis to exclude or suppress the statement in any criminal proceeding, delinquent child proceeding, or other legal proceeding”.

The passage of SB 77 is certainly cause for celebration by the defense bar, as well as by citizens of the State of Ohio. The broad changes contained within SB 77 may serve as a national model for criminal justice in other jurisdictions. As always, it will be up to the defense bar to remain ever vigilant of these changes and the enforcement thereof, and to continue to lead the charge for further legislative changes.

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