CHAPTER THREE LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS

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1 CHAPTER THREE LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS INTRODUCTION TO THE ISSUE Eyewitness misidentification and false confessions are two of the leading causes of wrongful convictions. Between 1989 and 2003, approximately 205 previously convicted murderers were exonerated nationwide.f1 In about 50 percent of these cases, there was 2 at least one eyewitness misidentification, and 20 percent involved false confessions.f Lineups and Showups Numerous studies have shown that the manner in which lineups and showups are conducted affects the accuracy of eyewitness identification. To avoid misidentification, the group should include foils chosen for their similarity to the witness description,f3 and the administering officer should be unaware of the suspect s identity and should tell the witness that the perpetrator may not be in the lineup. Caution in administering lineups and show-ups is especially important because flaws may easily taint later lineup and attrial 4 identifications.f Law enforcement agencies should consider using a sequential lineup or photospread, 5 rather than presenting everyone to the witness simultaneously.f In the sequential approach, the witness views one person at a time and is not told how many persons he/she will see.f6 As each person is presented, the eyewitness states whether or not it is the perpetrator.f7 Once an identification is made in a sequential procedure, the procedure stops.f8 The witness thus is encouraged to compare the features of each person viewed to the witness s recollection of the perpetrator rather than comparing the faces of the various people in the lineup or photospread to one another in a quest for the best match. Law enforcement agencies also should videotape or digitally record identification procedures, including the witness s statement regarding hihe/sher degree of confidence in 1 See Samuel R. Gross et al., Exonerations in the United States, 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, (2005), available at (last visited Sept. 13, 2007). 2 Id. at See C.E. Luus & G.L Wells, Eyewitness Identification and the Selection of Distracters for Lineups, 15 L. & HUM. BEHAVIOR (1991). 4 See BRYAN CUTLER, EYEWITNESS TESTIMONY: CHALLENGING YOUR OPPONENT S WITNESSES 13-17, (2002). 5 Id. at 39; see also THE REPORT TO THE LEGISLATURE OF THE STATE OF ILLINOIS: THE ILLINOIS PILOT PROGRAM ON SEQUENTIAL DOUBLE-BLIND IDENTIFICATION PROCEDURES (2006), available at (last visited Sept. 13, 2007) (calling into some doubt the benefits of sequential lineups over simultaneous lineups). 6 See CUTLER, supra note 4, at Id. Id. 77

2 the identification. In the absence of a videotape or digital recorder, law enforcement agencies should photograph and prepare a detailed report of the identification procedure. Audio or Videotaping of Custodial Interrogations Electronically recording interrogations from their outset not just from when the suspect has agreed to confess can help avoid erroneous convictions. Complete recording is on the increase in this country and around the world. Those law enforcement agencies that 9 make complete recordings have found the practice beneficial to law enforcement.f Complete recording may avert controversies about what occurred during an interrogation, deter law enforcement officers from using dangerous and/or prohibited interrogation tactics, and provide courts with the ability to review the interrogation and the confession. 9 See Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. & CRIMINOLOGY 1127 (2005). 78

3 I. FACTUAL DISCUSSION The Ohio Peace Officer Training Commission (OPOT Commission), under the control of the Ohio Attorney General, is the chief regulatory body of Ohio law enforcement and is charged with the development and enforcement of statewide law enforcement standards - - including those on training all peace officers in the State of Ohio.F10 Several Ohio law enforcement agencies have voluntarily obtained national accreditation through the Commission on Accreditation for Law Enforcement Agencies. Additionally, Ohio courts have created a body of law governing pre-trial identifications and interrogations conducted by law enforcement officers. A. Ohio Peace Officer Training Commission and Training 1. Ohio Peace Officer Training Commission The OPOT Commission was created by the Ohio General Assembly to recommend rules to the Ohio Attorney General about, among other things: (1) the approval or revocation of approval of peace officer training schools administered by the state and local authorities; (2) the minimum courses of study for peace officer training schools; (3) the minimum qualifications for instructors at approved peace officer training schools; and (4) the establishment of minimum qualifications and requirements for certification of correction 11 officers.f The Ohio Attorney General has the discretion to adopt and promulgate any rule or regulation recommended by the OPOT CommissionF12 and the executive director of the OPOT Commission must approve peace officer training schools in accordance with 13 rules adopted by the Attorney General.F Members of the OPOT Commission are appointed by the Governor and approved by the Ohio Senate.F14 The nine members must include: (1) Two incumbent sheriffs; (2) Two incumbent Chiefs of Police; (3) One representative from the general public; (4) One member from the Department of Education, Trade and Industrial Education services; (5) One representative from the Ohio Bureau of Criminal Identification and Investigation; (6) One representative from the Ohio State Highway patrol; and (7) The Special Agent in charge of an Ohio field office of the Federal 15 Bureau of Investigation.F 10 The numerous law enforcement positions in the State of Ohio requiring peace officer basic training may be found in section (A)(1)-(22) of the Ohio Revised Code. Investigators of the Ohio Bureau of Criminal Identification and Investigation who have been certified by the OPOT Commission also are considered peace officers. OHIO REV. CODE (A) (West 2007). 11 OHIO REV. CODE (A)(1)-(3), (11) (West 2007). 12 OHIO REV. CODE (West 2007). 13 OHIO REV. CODE (A) (West 2007). 14 OHIO REV. CODE (West 2007). 79

4 2. Ohio Peace Officer Training Schools In order to be certified as a peace officer in the State of Ohio, a candidate must complete 558 hours of basic training at a school approved and monitored by the OPOT Commission and receive a certificate of completion from the executive director of the 16 OPOT Commission.F Officers who are appointed to a peace officer position in Ohio and have completed training in another state, or are certified by an entity other than the OPOT Commission, may apply to the OPOT Commission for prior equivalent training 17 analysis.f The basic training curriculum of every Ohio peace officer must include, among other requirements: (1) sixteen hours on the laws of arrest; (2) four hours on the legal aspects of interview and interrogation; (3) four hours on interview and interrogation techniques; (4) five hours on testifying in court and the rules of evidence; (5) two hours on observation, perception, and description during investigations; (6) two hours on lineups; and (7) three hours on ethics and professionalism.f18 There are eighty sites approved by the OPOT Commission to provide basic training to Ohio peace officers, including the 19 Ohio Peace Officer Training Academy operated by the OPOT Commission.F Additionally, the 2007 Course Catalog for the Ohio Peace Officer Training Academy, which describes courses for the continuing education of peace officers in Ohio, offers the following courses relevant to interrogations and identification of suspects: (1) Interview and Interrogation, including legal requirements and limitations of the Miranda and Escobedo decisions;f20 (2) Reid Techniques for Interview and Interrogation, including profiling suspects for interrogation, playing one suspect against the other, and 21 identifying the five facial expressions that indicate the emotional state of the suspect; F (3) Legal Ramifications of Miranda and supporting cases following Miranda;F22 and (4) 23 Legal Update, on recent legal decisions affecting the criminal justice system.f B. Law Enforcement Accreditation: The Commission on Accreditation for Law Enforcement Agencies, Inc. The Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA) is an independent accrediting authority established by the four major law enforcement OHIO REV. CODE (West 2007). OHIO REV. CODE (B)(1) (West 2007); see also OFFICE OF THE OHIO ATTORNEY GENERAL, OHIO PEACE OFFICER BASIC TRAINING REQUIREMENTS AND OPTIONS FOR ATTENDING 1 [hereinafter OPOT TRAINING REQUIREMENTS], available at (last visited Sept. 13, 2007). 17 OPOT TRAINING REQUIREMENTS, supra note 16, at Id. at 3. Id. at 1. Individual jurisdictions may sponsor a sworn peace officer to attend basic training or individuals who are not appointed a peace officer position may openly enroll in basic training at their own expense. Id. 20 OHIO PEACE OFFICER TRAINING ACADEMY, COURSE CATALOG 2007, at 114 [hereinafter OPOTA COURSE CATALOG 2007], available at (last visited Sept. 13, 2007). 21 Id. at Id. at 120. Id. 80

5 24 membership associations in the United States.F CALEA has accredited sixty law enforcement agencies in Ohio,F25 while another eighteen are in the process of obtaining accreditation.f 26 To obtain accreditation, a law enforcement agency must complete a comprehensive process consisting of (1) purchasing an application; (2) executing an Accreditation Agreement and submitting a completed application; (3) completing an Agency Profile Questionnaire; (4) completing a thorough self-assessment to determine whether the law enforcement agency complies with the accreditation standards and developing a plan to come into compliance; and (5) participating in an on-site assessment by a team selected by the Commission to determine compliance who will submit a compliance report to the 24 CALEA Online, About CALEA, available at (last visited Sept. 13, 2007) (noting that the Commission was established by the International Association of Chiefs of Police (IACP), National Organization of Black Law Enforcement Executives (NOBLE), National Sheriffs' Association (NSA), and Police Executive Research Forum (PERF)). 25 CALEA Online, Agency Search, available at (last visited Sept. 13, 2007) (using second search function designating US and OH as search criteria to determine the number of agencies that have earned or are in the process of earning accreditation from CALEA s Law Enforcement Accreditation Program). The following law enforcement agencies have received CALEA accreditation: Amberly Village Police Department, Beavercreek Police Department, Boardman Police Department, Bowling Green Police Department, Centerville Police Department, Cincinnati Police Department, Colerain Township Police Department, Columbus Police Department, Delhi Township Police Department, Dublin Division of Police, Evendale Police Department, Fairfield Police Department, German Township Police Department, Greenville Police Department, Grove City Division of Police, Hamilton Police Department, Harrison Police Department, Heath Police Department, Huber Heights Police Division, Indian Hill Rangers Police Department, Kettering Police Department, Lebanon Division of Police, Manisfield Division of Police, Marion Police Department, Mason Police Department, Mentor-onthe-Lake Police Department, Miami Township Police Department, Middletown Police Department, Milford Police Department, Piqua Police Department, Powell Police Department, Reynoldsburg Division of Police, Shaker Heights Police Department, Springdale (City of ) Police Department, Springfield Township Police Department, St. Bernard Police Department, Tiffin Police Department, Toledo Police Department, Trotwood Police Department, Troy Police Department, Union Township Police Department, Upper Arlington Division of Police, Vandalia Division of Police, West Carrollton Police Department, Xenia Police Division, Greene County Sheriff s Office, Licking County Sheriff s Office, Medina County Sheriff s Office, Montgomery County Sheriff s Office, Ohio State Highway Patrol, Ohio Bureau of Criminal Identification & Investigation, Kent State University Police Department, Ohio Department of Taxation Enforcement Division, Columbus Regional Airport Authority Division of Public Safety, Police Section, Cuyahoga Metro Housing Authority Police, Hamilton County Park District, Bexley Police Department, Forest Park Police Department, Hebron Police Department, and Ohio Peace Officer Training Academy. Id. 26 Id. The following law enforcement agencies are in the process of obtaining accreditation: Beachwood Police Department, Fairfield Township Police Department, Greenhills (Village of) Police Department, Miamisburg Police Department, Newark Division of Police, Knox County Sheriff s Office, Ohio Investigative Unit, Cleveland Clinic Police Department, Huber Heights Police Division, Archbold Police Deparment, Beaver Township Police Department, Clearcreek Township Police Department, Genoa Township Police Department, Grandview Heights Police Department, Highland Heights Police Department, Clark County Sheriff s Office, Mill Creek Metropark Police Department, Licking Memorial Hospital Police Department, and Metropolitan Park District of the Toledo Area. Id. 81

6 Commission.F27 After these steps have been completed, a hearing is held to make a final 28 decision on accreditation.f The CALEA standards are used to certify various functional components within a law enforcement agency Communications, Court Security, Internal Affairs, Office Administration, Property and Evidence, and Training. F29 Specifically, CALEA Standard requires an accredited law enforcement agency to create a written directive that establishes procedures to be used in criminal investigation including interviews and interrogation, CALEA Standard requires law enforcement agencies to create a written directive that establishes steps to be followed in conducting preliminary investigations, including interviewing the complainant, witnesses and suspects, and CALEA Standard requires the creation of a written directive that establishes steps to be followed in conducting follow-up investigations... [including] identifying and 30 apprehending suspects, F which means that the sixty CALEA-accredited law enforcement agencies throughout the State of Ohio should have adopted such written directives. C. Constitutional Standards and State Law Relevant to Identifications Pre-trial witness identifications, such as those that take place during lineups, showups, and photo arrays, are governed by the constitutional due process guarantee of a fair trial.f31 A due process violation occurs when the trial court allows testimony concerning pre-trial identification of the defendant where (1) the identification procedure used by law enforcement was impermissibly suggestive, and (2) under the totality of the circumstances, the suggestiveness gave rise to a very substantial likelihood of irreparable 32 misidentification.f In making the determination of whether, under the totality of the circumstances, the use of an impermissibly suggestive pre-trial identification procedure would lead to a very substantial likelihood of irreparable misidentification, Ohio courts consider the following factors: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness s degree of attention, (3) the accuracy of the witness s prior description of the criminal, and (4) the level of certainty demonstrated by the witness at the confrontation. F33 It is well established that there is a "great potential" 27 CALEA Online, The Law Enforcement Accreditation Process, available at (last visited Sept. 13, 2007). 28 Id. 29 COMM N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, INC., STANDARDS FOR LAW ENFORCEMENT AGENCIES, THE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY ACCREDITATION PROGRAM, at v (4th ed. 2001) [hereinafter CALEA STANDARDS]. 30 Id. at 42-3 (standard ). 31 See Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers, 409 U.S. 188, (1972); see also State v. Broom, 533 N.E.2d 682, 692 (Ohio 1988) (following Manson); State v. Waddy, 588 N.E.2d 819, (Ohio 1992) (superseded on other grounds by state constitutional amendment as stated in State v. Smith, 684 N.E.2d 668 (Ohio 1997)) (stating that due process requirement in pre-trial identifications applies to voice, as well as visual, identifications). 32 Biggers, 409 U.S. at ; Simmons v. United States, 390 U.S. 377, 384 (1968); see also Waddy, 588 N.E.2d at Waddy, 588 N.E.2d at 831 (finding that two factors indicated that voice identification was not likely to lead to a misidentification and that two factors indicated that the identification could lead to a 82

7 for misidentification when a witness identifies a stranger based upon a single, brief 34 observation in a stressful situation.f 1. Lineups Post-indictment lineups are considered a critical part of proceedings, and consequently trigger the right to counsel.f35 However, a defendant is not entitled to counsel at a police lineup conducted before formal proceedings have been initiated.f36 Ohio courts have held that a permissible lineup does not require a defendant to be surrounded by people nearly 37 identical in appearance. F 2. Photo Lineups It must be recognized that improper employment of photographs by police may 38 sometimes cause witnesses to err in identifying criminals. F Photo identification 39 procedures should not be unduly suggestive.f That is, a photo lineup should not be conducted in such a way as to highlight and elicit an identification of the suspect. A criminal defendant does not have the right to have an attorney present at a photographic lineup until after he or she is indicted or formally charged.f40 However, a defendant does have the right to show to the judge and jury any photographic evidence used in the case, to challenge the witnesses on cross-examination, and to argue to the judge or jury that the photo identification procedure was unduly suggestive and that any identification from it 41 should be disregarded.f When a motion to suppress concerns photo identification procedures, the court must determine whether the photos or procedures used were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable [mis]identification. F Single Choice Identification Procedures misidentification, thus, on balance, there was not a very substantial likelihood of misidentification); see also State v. Jells, 559 N.E.2d 464, 469 (Ohio 1990) (finding that witness had an independent opportunity to identify defendant to make a reliable identification other than in photo array in which photo of defendant was taken outdoors, obscuring defendant s features, while photos of other men contained in photo array were taken indoors) (citing Biggers, 409 U.S. at ). 34 United States v. Russell, 532 F.2d 1063, 1066 (6th Cir. 1976). 35 United States v. Wade, 388 U.S. 218 (1967), Gilbert v. California, 388 U.S. 263 (1967) 36 United States v. Ash, 413 U.S. 300 (1973), State v. Martin, 483 N.E.2d 1157, 1163 (Ohio 1985) State v. Murphy, 747 N.E.2d 765, 790 (Ohio 2001). Simmons v. United States, 390 U.S. 377, 383 (1968); State v. Jells, 559 N.E.2d 464, 469 (Ohio 1990) (citing State v. Perryman, 358 N.E.2d 1040, 1046 (Ohio 1976), cert granted, vacated on other grounds by 438 U.S. 911 (1978)). 39 Manson v. Brathwaite, 432 U.S. 98 (1977). 40 Ash, 413 U.S. at Id. 42 State v. Lott, 555 N.E.2d 293, 308 (Ohio 1990) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). 83

8 The Ohio Supreme Court has condemned single choice identifications as suggestive. We... agree that [t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. F43 However, the ultimate focus in determining whether reversible error exists is not just on whether the practice was used, but on whether it was so suggestive as to create a very substantial 44 likelihood of misidentification. F The United States Court of Appeals for the Sixth Circuit has permitted a witness to make an initial identification of a defendant at trial, holding that while the in-court identification was impermissibly suggestive, the witness did not hesitate in identifying [the defendant] as the man who robbed her and the witness had ample opportunity to view the defendant during the offense.f The court found the in-court identification reliable even though the offense took place five years prior to this initial identification.f46 Also, if the suggestiveness of an identification is the result of non-state action, such as the witness being exposed to media reports and prior viewings of the defendant in court, it goes to the credibility of the witness s testimony 47 and the weight to be given to the identification, not its admissibility.f D. Constitutional Standards and State Law Relevant to Interrogations The State of Ohio does not require law enforcement officers to record police interrogations or any confession resulting from an interrogation,f48 although a review of case law suggests that several law enforcement agencies may voluntarily record interrogations.f 49 As with eyewitness identifications, Ohio courts determine the voluntariness of a confession by considering the totality of the circumstances, F50 surrounding it, including: (1) the age, mentality, and prior criminal experience of the accused; (2) the length, intensity, and frequency of the interrogation; (3) the existence of physical deprivation or 51 mistreatment; and (4) the existence of threat or inducement.f There are no statutory State v. Broom, 533 N.E.2d 682, 692 (Ohio 1998). State v. Gross, 776 N.E.2d 1061, 1077 (Ohio 2002). United States v. Hill, 967 F.2d 226, (6 th Cir. 1992). Id. Gross, 776 N.E.2d at As long as the state shows that there were some factors apparent that would mitigate a very substantial likelihood of misidentification, the identification may be admitted into evidence and defense counsel is then free to attack the reliability and credibility of the witness s identification. Id.; Hill, 967 F.2d at State v. Smith, 684 N.E.2d 668, 686 (Ohio 1997) ( Neither the Ohio Constitution nor the United States Constitution requires that police interviews, or any ensuing confessions, be recorded by audio or video machines. ). 49 State v. Benner, 533 N.E.2d 701, 711 (Ohio 1988); State v. Raglin, 699 N.E.2d 482, 491 (Ohio 1998); State v. Wassil, 2005 WL , *2-3 (Ohio Ct. App. 11th Dist. Dec. 29, 2005) (unreported opinion); State v. Salvatore, 2003 WL , *6-7 (Ohio Ct. App. 10th Dist. Mar. 4, 2003) (unreported opinion); State v. Johnson, 2002 WL , *2 (Ohio Ct. App. 6th Dist. Sept. 30, 2002) (unreported opinion); State v. Slaughter, 2000 WL , *3 (Ohio Ct. App. 1st Dist. Apr. 28, 2000) (unreported opinion); State v. Whitaker, 2000 WL , *2 (Ohio Ct. App. 3d Dist. Feb. 22, 2000) (unreported opinion). 50 State v. Treesh, 739 N.E.2d 749, 765 (Ohio 2001). 51 State v. Edwards, 358 N.E.2d 1051, 1059 (Ohio 1976) (death sentence vacated by Edwards v. Ohio, 438 U.S. 911 (1978)). 84

9 limits on the length of a permissible interrogation in Ohio,F52 and while deceptive police practices do bear on the voluntariness of a statement, standing alone, [deception] is not 53 dispositive of the issue. F 52 See, e.g., State v. Johnston, 580 N.E.2d 1162, (Ohio Ct. App. 10th Dist. 1990) (holding that an eight and one-half hour interrogation, combined with evidence that the interrogation was conducted in an excessively rough and intimidating manner, invalidated confession obtained during interrogation). But see State v. Green, 738 N.E.2d 1208, 1226 (Ohio 2000) (finding that statements made after 12 hours of interrogation were voluntary where [n]o evidence suggests that police physically abused [the defendant], threatened him, or made any promises during questioning, appellant was eighteen years old, [i]nterviews were sporadic, not continuous, [appellant] was given food and breaks, appellant never refused to answer questions, never asked for questioning to stop, and never asked for medical attention or a lawyer, and did not complain that he was tired, nor does any evidence indicate that he was tired ). 53 State v. Lynch, 787 N.E.2d 1185, 1200 (Ohio 2003). 85

10 II. ANALYSIS A. Recommendation #1 Law enforcement agencies should adopt guidelines for conducting lineups and photospreads in a manner that maximizes their likely accuracy. Every set of guidelines should address at least the subjects, and should incorporate at least the social scientific teachings and best practices, set forth in the American Bar Association Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures (which has been reproduced below, in relevant part and with slight modifications). Sixty Ohio law enforcement agencies have obtained certification by the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA), an independent accrediting authority.f54 The CALEA standards, however, do not require certified agencies to adopt specific guidelines for conducting lineups and photospreads in a manner that maximizes their likely accuracy. Instead, the standards allow the agencies latitude in determining how they will achieve compliance with each applicable CALEA standard. For example, CALEA Standard requires law enforcement agencies to create a written directive that establishes steps to be followed in conducting follow-up investigations, including identifying suspects,f55 but provides no guidance as to what the contents of the directive should be. Certainly individual law enforcement agencies could create specific guidelines that mirror the requirements of the American Bar Association Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures (ABA Best Practices) in order to comply with the CALEA standards, but information sufficient to determine whether any Ohio law enforcement agencies, certified or otherwise, are in compliance with 56 the ABA Best Practices was not available.f Regardless of whether a law enforcement agency has obtained certification or has adopted relevant standard operating procedures, all pre-trial identification procedures administered by law enforcement agencies ultimately are subject to constitutional due process limitations. Thus, in assessing compliance with each ABA Best Practice, it is necessary to discuss the relevant treatment by Ohio courts of certain actions by law enforcement officials in administering pre-trial identification procedures. 1. General Guidelines for Administering Lineups and Photospreads a. The guidelines should require, whenever practicable, the person who conducts a lineup or photospread and all others present (except for defense counsel, when his or her presence is constitutionally 54 CALEA Online, Agency Search, available at (last visited Sept. 13, 2007) (using second search function and designating US ; OH ; Law Enforcement Accreditation as search criteria). 55 CALEA STANDARDS, supra note 29 (Standard ). 56 Information on law enforcement investigative techniques is not considered public record. OHIO REV. CODE (A)(1)(h) (West 2007). 86

11 required) should be unaware of which of the participants is the suspect. Numerous law enforcement agencies in Ohio are certified by CALEA, which require these agencies to create a written directive that establishes steps to be followed in 57 conducting follow-up investigations, including identifying suspects.f Although the CALEA standards do not specifically require that all those present at a pre-trial identification be unaware of which participant is the suspect, a law enforcement agency complying with the CALEA standards could create a guideline to require that, when practicable, the person who conducts a lineup or photospread should be unaware of which of the participants is the suspect. A review of relevant case law in Ohio reveals that a variety of lineup protocols are administered by law enforcement agencies across the State. At least one Ohio Court has permitted admission of an identification from a cattle call lineup in which several witnesses are present to make an identification of a single perpetrator.f58 The court held that while there was a greater risk of misidentification during this sort of lineup, a later in-court identification of the defendant was reliable independent of the lineup.f59 Courts also have admitted identifications in which witnesses were shown the same six-person photo array two or three times until the witnesses made an identification.f An Ohio court also has admitted an identification in which police presented a photo array to a witness two months after the same photo array was previously presented to the witness; however, in the second array, the suspect s photo had been updated to a more recent 61 photo while all other foils remained the same.f While Ohio courts do not require that the person who conducts a lineup or photospread be unaware of which of the participants is the suspect, and Ohio courts have allowed identifications into evidence when the police clearly knew who the suspect was during the lineup or photospread in question, the written guidelines of Ohio law enforcement agencies are not generally available,f62 and therefore it was not possible to ascertain whether most law enforcement agencies in Ohio, certified or otherwise, have guidelines complying with this particular ABA Best Practice. 60 b. The guidelines should require that eyewitnesses be instructed that the perpetrator may or may not be in the lineup; that they should not assume that the person administering the lineup knows who is the suspect; and that they need not identify anyone, but, if they do so, they will be expected to state in their own words how certain they are of any identification they make CALEA STANDARDS, supra note 29, (Standard 42-3). State v. Norman, 738 N.E.2d 403, 415 (Ohio Ct. App. 1st Dist. 1999). Id. State v. Aldridge, 1986 WL 5431, *1 (Ohio Ct. App. 2d Dist. May 6, 1986) (unreported opinion). State v. Sanders, 1985 WL 9689, *1-2 (Ohio Ct. App. 11th Dist. Oct. 11, 1985) (unreported opinion). Information on law enforcement investigative techniques is not considered public record. OHIO REV. CODE (A)(1)(h) (West 2007). 87

12 The CALEA standards do not specifically require that certified agencies conducting pretrial identification procedures instruct eyewitnesses that the perpetrator may or may not be in the lineup, that they should not assume the official administering the lineup knows who is the suspect, or that, although they need not identify anyone, any identification must be in their own words. A law enforcement agency complying with the CALEA standards, requiring the agency to establish steps for identifying suspects, could create a guideline that complies with this ABA Best Practice. A review of Ohio case law indicates that some jurisdictions perform identifications by instructing the witness that the suspect may or may not be in the lineup or photo array presented. In one instance, a detective informed the witness prior to presenting her a photo array that: [t]he photo array you are about view consists of six photographs in no particular order of importance. The subject of the investigation may or may not be included in the photographs. Look carefully at the photographs of all six, then advise the detective whether or not you recognize anyone. You are not required to select any of the photographs.f 63 While the Ohio Supreme Court has held that a statement by law enforcement personnel telling the witness that the suspect is in the line-up or photospread, in conjunction with other factors, can render the lineup procedure impermissibly suggestive,f64 in some instances, the witness has been told that the suspect was in the lineup or photo array and a 65 lower court has found this permissible.f Furthermore, even when a witness has participated in an improper pre-trial identification procedure a subsequent in-court identification is admissible if the totality of the circumstances demonstrates that the 66 witness had an independent basis for making the in-court identification.f The Ohio Supreme Court s holding that a statement by law enforcement personnel to the witness that the suspect is in the line-up or photospread can render the lineup procedure 63 State v. Albert, 2006 WL , *2 (Ohio App. Ct. 10th Dist. Dec. 26, 2006) (unreported opinion) (illustrating that the identification procedure was administered by a Columbus, Ohio Police Detective in Franklin County); see also State v. Blakely, 2006 WL , *1 (Ohio Ct. App. 6th Dist. Jan. 20, 2006) (The [witness] was told that the array may or may not contain a photo of the shooter. ). 64 State v. Moody, 377 N.E2d 1008, (Ohio 1978). 65 See, e.g., State v. Broadnax, 1995 WL , *3 (Ohio Ct. App. 8th Dist. Dec. 14, 1995) ( [K]nowledge that the suspect is in the line-up, however, does not render a line-up unnecessarily suggestive. ); see also State v. Artis, 1994 WL , *2 (Ohio Ct. App. 8th Dist. May 26, 1994) ( That the suspects arrested for the crime would be in the lineup is inherent in the situation and not impermissibly suggestive. ). 66 State v. Waddy, 588 N.E.2d 819, 831 (Ohio 1992) (superseded on other grounds by state constitutional amendment as stated in State v. Smith, 684 N.E.2d 668 (Ohio 1997)); State v. Jells, 559 N.E.2d 464, 470 (Ohio 1990) (finding that witness had an independent opportunity to identify defendant to make a reliable identification other than in photo array in which photo of defendant was taken outdoors, obscuring defendant s features, while photos of other men contained in photo array were taken indoors) (citing Neil v. Biggers, 409 U.S. 188, (1972)). 88

13 impermissibly suggestive is commendable. Despite this ruling however, trial courts have allowed at least two identifications into evidence when the law enforcement officer told the witness that the suspect was in the lineup or photospread. Because the written guidelines of Ohio law enforcement agencies are generally unavailable,f67 it was not possible to determine whether these two cases indicate official law enforcement policy or are aberrations and it could not be determined whether Ohio law enforcement agencies generally, certified or not, have adopted written guidelines in compliance with all aspects of this ABA Best Practice. 2. Foil Selection, Number, and Presentation Methods a. The guidelines should require that lineups and photospreads should use a sufficient number of foils to reasonably reduce the risk of an eyewitness selecting a suspect by guessing rather than by recognition. b. The guidelines should require that foils should be chosen for their similarity to the witness's description of the perpetrator, without the suspect's standing out in any way from the foils and without other factors drawing undue attention to the suspect. A law enforcement agency complying with the CALEA standards, requiring the agency to establish steps for identifying suspects, could create a guideline that complies with this ABA Best Practice. A review of relevant case law in Ohio demonstrates that law enforcement officials across the State sometimes prepare lineups or photo arrays containing five to six people,f68 although there is no minimum number of foils required by case law or statute to present a lineup or photo array to a witness. Additionally, the United States Supreme Court and Ohio courts have recognized that the practice of showing a suspect singly for the purposes of identification a showup has been widely condemned as being unnecessarily suggestive and conducive to irreparable 69 mistaken identifications that constitute a denial of due process of law.f However, the Ohio Supreme Court has held that the overriding concern is on the reliability of the 67 Information on law enforcement investigative techniques is not considered public record. OHIO REV. CODE (A)(1)(h) (West 2007). 68 See, e.g., State v. Murphy, 747 N.E.2d 765, 790 (Ohio 2001) (using six-person photo array for identification of a capital suspect); State v. Wogenstahl, 662 N.E.2d 311, 327 (Ohio 1996) (using sixperson photo array for identification of a capital suspect); State v. Watson, 572 N.E.2d 97, 102 (Ohio 1991) (presenting to witnesses a photo array containing twelve pictures when there were two suspects for capital murder); Broadnax, 1995 WL , at *2 (placing photograph of defendant in array with four other men); State v. Webster, 1992 WL , *1 (Ohio Ct. App. 12th Dist. June 8, 1992) (unreported opinion) (using six-person photo array); State v. Nix, 2004 WL , *5 (Ohio Ct. App. 1st Dist. Oct. 15, 2004) (unreported opinion) (upholding trial court s finding that three or four lineup pictures sitting on a table while witness waited alone in a squad room at the police station was probably even better than the typical six-photograph lineup sheet ); State v. Pruitt, 2003 WL , *6 (Ohio Ct. App. 11th Dist. Apr. 14, 2003) (using six-person photo). 69 Manson v. Brathwaite, 432 U.S. 98, 104 (1977); Stovall v. Denno, 388 U.S. 293, 302 (1967); State v. Gross, 776 N.E.2d 1061, 1077 (Ohio 2002); State v. Bunce, 1980 WL , *2 (Ohio Ct. App. 10th Dist. Aug. 7, 1980) (unreported opinion). 89

14 identification, not the identification procedures. F70 Consequently, showup identifications have been admitted into evidence as reliable identifications in more than one capital case.f71 The Ohio Supreme Court also has held that [a] defendant in a lineup need not be surrounded by people nearly identical in appearance and that [e]ven significant 72 dissimilarities of appearance or dress will not necessarily deny due process. F Furthermore, while some courts may evaluate the level of similarity between foil participants physical features, a review of relevant case law from varying jurisdictions in Ohio reveals that these evaluations generally fall in favor of the police officer s choice of participants for the lineup or photo array, often citing that while the procedure may have 73 been impermissibly suggestive, it was not unreliable.f While Ohio courts impose no requirement that lineups and photospreads use a sufficient number of foils or that foils be chosen for their similarity to the witness s description of the perpetrator, the written guidelines of Ohio law enforcement agencies are not publicf74, and therefore it could not be ascertained whether law enforcement agencies in Ohio, certified or otherwise, have guidelines complying with this particular ABA Best Practice. 3. Recording Procedures a. The guidelines should require that, whenever practicable, the police should videotape or digitally video record lineup procedures, including the witness s confidence statements and any statements made to the witness by the police. 70 State v. Williams, 652 N.E. 2d 721, (Ohio 995) (presenting photo arrays to three witnesses, one array contained six pictures while the other two contained only three pictures). 71 See, e.g., Gross, 776 N.E.2d at 1061 (agreeing that the show-up identification was suggestive, but concluding that there was not a very substantial likelihood of irreparable misidentification due to the totality of the circumstances of the witnesses opportunity to view the suspect, the degree of attention of the witness at the time of the crime, and the witnesses level of certainty at the confrontation); see also State v. Broom, 533 N.E.2d 682, 692 (Ohio 1998). 72 State v. Davis, 666 N.E.2d 1099, (Ohio 1996) (finding that the lineup of suspects in a capital case was not impermissibly suggestive where all six individuals in the lineup were black males with facial hair but the complexions of the men varied and none had a bushy, curly hairstyle like [the defendant s] ). 73 See, e.g., State v. Carroll, 2003 WL , *6 (Ohio Ct. App. 1st Dist. Oct. 3, 2003) (unreported opinion) (finding that in the three photographs shown to the witness in Hamilton County, the photo of the defendant was substantially larger than [the other two individuals], and did not even remotely resemble either of them ); Broadnax, 1995 WL , at *2 (unreported opinion) (finding that pre-trial identification in Cuyahoga County was not so unduly suggestive so as to violate due process although some of the photos featured foils wearing 1970s-style clothing, foils wore different styles of mustaches, had different skin tones, and only two suspect photographs, including defendant s, had height charts displayed); State v. Broom, 1987 WL 11398, *4-5 (Ohio Ct. App. 8th Dist. May 21, 1987) (finding lineup procedure in Cuyahoga County not unduly suggestive although defendant was tallest participant and was dressed in orange prison uniform while other participants wore gold uniforms); State v. Wright, 1987 WL 11672, *4 (Ohio Ct. App. 8th Dist. Apr. 28, 1987) (finding that age difference of over twenty years between foils in lineup and defendant did not create substantial risk of misidentification). 74 Information on law enforcement investigative techniques is not considered public record. OHIO REV. CODE (A)(1)(h) (West 2007). 90

15 b. The guidelines should require that, absent videotaping or digital video recording, a photograph should be taken of each lineup and a detailed record made describing with specificity how the entire procedure (from start to finish) was administered, also noting the appearance of the foils and of the suspect and the identities of all persons present. The CALEA standards do not specifically require that certified agencies conducting pretrial identification procedures video or digitally record the witness s confidence statement and any law enforcement statements made to witnesses or, in the absence of video recording, photograph the lineup. A law enforcement agency complying with the CALEA standards, which require the agency to establish steps for identifying suspects, could create guidelines that comply with this ABA Best Practice. Although a number of Ohio cases note that a videotape was entered into evidence and examined by the court to determine whether the procedure was impermissibly suggestive or that the witness identified a suspect via a videotaped lineup,f75 the State of Ohio does not require law enforcement agencies to record lineup procedures. Nor does it appear that the State of Ohio requires law enforcement agencies, in the absence of a video or digital recording, to take a photograph of the lineup procedure and record in detail how the entire procedure was administered. While Ohio courts impose no requirement that police videotape or digitally video record lineup procedures, or that a photograph should be taken or each lineup and a detailed record made, we did not inspect the written guidelines of Ohio law enforcement agencies, and therefore were unable to ascertain whether law enforcement agencies in Ohio, certified or otherwise, have guidelines complying with this particular ABA Best Practice. c. The guidelines should require that, regardless of the fashion in which a lineup is memorialized, and for all other identification procedures, including photospreads, the police shall, immediately after completing the identification procedure and in a non-suggestive manner, request witnesses to indicate their level of confidence in any identification and ensure that the response is accurately documented. The CALEA standards do not specifically require that certified agencies conducting pretrial identification procedures request, in a non-suggestive manner, that the witness indicate his/her level of confidence in any identification and document that statement accurately. A law enforcement agency complying with the CALEA standards, requiring 75 See, e.g., State v. Wogenstahl, 662 N.E. 2d 311, 363 (Ohio 1996) ( Moreover, a videotape of the lineup reveals that it was conducted in an appropriate manner. ); State v. Cook, 1992 WL 74199, *2 (Ohio Ct. App. 1st Dist. Apr. 8, 1992) (unreported opinion) (identifying defendant from a videotape of a previous police lineup); see also State v. Robertson, 1990 WL 65658, *2 (Ohio Ct. App. 2d Dist. May 18, 1990) (unreported opinion). 91

16 the agency to establish steps for identifying suspects, could create a guideline that complies with this ABA Best Practice. While Ohio courts emphasize a witness s level of certainty in determining whether an impermissibly suggestive identification may nonetheless be reliable and thus admissible into evidence,f76 there is no requirement that law enforcement require witness to indicate their level of confidence in any identification and to document these statements. Because the written guidelines of Ohio law enforcement agencies are not public,f77 it was not possible to ascertain whether law enforcement agencies in Ohio, certified or otherwise, 78 have guidelines complying with this particular ABA Best Practice.F 4. Immediate Post-Lineup or Photospread Procedures a. The guidelines should require that police and prosecutors avoid at any time giving the witness feedback on whether he or she selected the "right man" the person believed by law enforcement to be the culprit. The CALEA standards do not specifically require that certified agencies conducting pretrial identification procedures avoid giving the witness feedback on whether he/she selected the proper suspect. A law enforcement agency complying with the CALEA standards, requiring the agency to establish steps for identifying suspects, could create a guideline that complies with this ABA Best Practice. While no reported instances in which law enforcement or prosecutors gave feedback to a witness on whether he/she selected the right man were found, in at least one instance, an Ohio court has disapproved of a cattle call lineup where several witnesses are asked to view a lineup simultaneously, possibly permitting witnesses to confer with one another to verify their 79 identification of a suspect.f 80 However, Ohio law enforcement agency policies addressing this issue are not publicf and therefore it was not possible to ascertain whether any law enforcement agencies in the State of Ohio have adopted policies or procedures which meet this ABA Best Practice. Conclusion 76 See supra note 33 and accompanying text (discussing the independent variables a court will consider under the totality of the circumstances to determine whether an impermissibly suggestive identification would lead to a very substantial likelihood of irreparable misidentification ). 77 Information on law enforcement investigative techniques is not considered public record. OHIO REV. CODE (A)(1)(h) (West 2007). 78 The Ohio Assessment Team addressed questions concerning the lineup procedures described above to the Hamilton, Butler, Franklin, Cuyahoga, Allen, and Trumbull Sheriffs Offices, however only the Butler County Sheriff s Office responded. See Notes on Answers to Ohio Law Enforcement Survey Questions (on file with author). In its response, it indicated that it did require witnesses to vocalize the certainty of the witness s identification. Id. 79 State v. Norman, 738 N.E.2d 403, 415 (Ohio Ct. App. 1st Dist. 1999). 80 Information on law enforcement investigative techniques is not considered public record. OHIO REV. CODE (A)(1)(h) (West 2007). 92

17 Even though numerous law enforcement agencies should have adopted written directives to comply with the requirements of CALEA, the CALEA standards do not require agencies to adopt written directives as specific as the ABA Best Practices contained in Recommendation #1. Furthermore, the written directives adopted by Ohio law enforcement agencies are not publicf81 and thus it was not possible to assess whether they comply with Recommendation #1. Based on this information, the Ohio Death Penalty Assessment Team recommends that the State of Ohio implement mandatory lineup procedures, utilizing national best practices, to protect against incorrect eyewitness identifications. B. Recommendation #2 Law enforcement officers and prosecutors should receive periodic training on how to implement the guidelines for conducting lineups and photospreads, as well as training on non-suggestive techniques for interviewing witnesses. The CALEA standards do not specifically require that certified law enforcement agencies conducting pre-trial identification procedures receive periodic training on how to implement guidelines for such procedures, including training on non-suggestive techniques for interviewing witnesses. A law enforcement agency complying with the CALEA standards that require the agency to establish a written directive that requires each sworn officer [to] receive annual training on legal updates, could create a training 82 program that complies with Recommendation #2.F For example, any peace officer candidate attending basic training in the State of Ohio will receive two hours of 83 instruction on conducting lineups.f Additionally, the Ohio Peace Officer Training Academy s Course Catalog for 2007, available to all peace officers in Ohio, offers a course entitled Legal Update on recent legal decisions affecting the criminal justice system F84 which may include training on conducting lineups and photospreads. However, it was not possible to determine whether Ohio law enforcement agencies, certified or otherwise, are complying with Recommendation #2, or whether prosecutors are receiving periodic training in compliance with Recommendation #2. C. Recommendation #3 Law enforcement agencies and prosecutors offices should periodically update the guidelines for conducting lineups and photospreads to incorporate advances in social scientific research and in the continuing lessons of practical experience Id. CALEA STANDARDS, supra note 29, at 33-4 (Standard ). OPOT TRAINING REQUIREMENTS, supra note 16, at 3. OPOTA COURSE CATALOG 2007, supra note 20, at