Q: What is Senate Bill 77?
A: Ohio Senate Bill 77 (SB77), effective July 6, 2010, is one of the nation’s most comprehensive criminal justice reform packages. Its ultimate goal is to make it easier to exonerate prisoners through DNA testing, and to help prevent wrongful convictions in the first instance. The major provisions that will be implemented through SB77 include: (1) a requirement that DNA evidence be preserved in all cases of “serious crime”; (2) police incentives for recording all interrogations from beginning to end in cases of “serious crime”; (3) a requirement for police lineups and photo identification procedures to be conducted in double-blind fashion; and (4) 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.
Q: What are “serious offenses?”
A: SB77 requires any person who is at least 18 years old and who is arrested on or after July 1, 2011 for a felony offense to submit to DNA collection. Individuals who are presently incarcerated or on community-control sanctions for a felony offense also must submit to DNA collection. DNA also must be collected from individuals who commit the following misdemeanor offenses: (1) an attempt to commit, or complicity in committing, unlawful sexual conduct with a minor; (2) a misdemeanor offense arising from the same facts, circumstances and act as 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 offense that is a misdemeanor if, in relation to that offense, the offender is a tier III sex offender.
Q: Who may request DNA testing to challenge a conviction?
A: An offender may request DNA testing if he/she was convicted by a judge or jury of a felony offense, and one of the following applies: (1) the offender was sentenced to prison or death for the felony and is serving that term of incarceration, the offender has been paroled, is on probation or post-release control, or has been released from prison under a term of community control sanction for that felony; (2) the offender was sentenced to and is under community control sanction for that felony; (3) the felony was a sexually oriented offense or child-victim oriented offense, and the law requires the offender to register as a sex offender. The offender is not eligible if he/she pleaded guilty or no contest, or has died before submitting a DNA testing application.
Q: What effect will SB77 have on criminal interrogations?
A: SB77 presumes that all recorded statements in criminal cases are voluntary if they occur in a place of detention and are made by a person who is suspected of aggravated murder, murder, voluntary manslaughter, involuntary manslaughter, aggravated vehicular homicide that is a first- or second-degree felony, Rape, or sexual battery. The person making the electronically-recorded statements has the burden of proving that they were not voluntary. The law now requires law enforcement personnel to keep both audio and audio-visual recordings until all appeals, post-conviction relief proceedings, and habeas corpus proceedings are finished, or the time limit for appeals has passed. The defendant can ask the court to keep the recordings beyond these periods of time.
Q: What effect will SB77 have on identification lineups in criminal cases?
A: SB77 says that law enforcement agencies conducting live or photo lineups for eyewitnesses must use specific procedures. When practicable, a “blind administrator” must conduct the lineups. This means that the officer who oversees the lineups does not know the identity of the suspect. If this is not practicable, the administrator must state the reason in writing. The administrator also must record, in writing: (1) all identification and non-identification results obtained during the lineup, signed by the eyewitnesses, including the eyewitnesses’ confidence statements made during identification; (2) the names of all persons present at the lineup; (3) the date and time of the lineup; (4) any eyewitness identification of someone other than the suspect in the lineup; and (5) the names of the lineup members and sources of all lineup photographs or persons. If a blind administrator conducts the lineup, he/she must tell the eyewitness that the suspect may or may not be in the lineup and that the administrator does not know who the suspect is. The trial court will consider any failure to comply with these requirements when deciding if the jury should hear eyewitness identification. Also, evidence of a failure to comply can be used to support any claim of eyewitness misidentification. Finally, the jury may consider whether an eyewitness identification is reliable based on whether a lineup was conducted according to the law.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Ian Friedman and Eric Nemecek of Ian N. Friedman and Associates, L.L.C., Cleveland.