New law will prompt changes for law enforcement agencies
Law enforcement agencies are required to implement or change a number of procedures as a result of the recent enactment of Senate Bill 77.
Most provisions of SB 77 take effect July 6, 2010, including those requiring law enforcement to:
Record custodial interrogations of suspects
Collect and preserve biological evidence in a uniform manner
Follow a specific protocol for conducting photo lineups
Beginning July 1, 2011, SB 77 also will require the collection of a DNA sample from any adult arrested on a felony charge.
Frequently asked questions about SB77
Recording custodial interrogations
Collecting and preserving biological evidence
Recording custodial interrogations
When and how do interrogations need to be recorded?
All custodial interrogations of a suspect for aggravated murder, murder, voluntary manslaughter, first- or second-degree involuntary manslaughter or vehicular homicide, rape, attempted rape or sexual battery that occur in a place of detention and are recorded are presumed voluntary. Therefore, when possible, you should record interrogations. Recordings must be videotaped with audio.
How does SB 77 define “custodial interrogation?”
SB 77 uses a definition of custodial interrogation that is functionally equivalent to “custody” for Miranda purposes.
What does SB 77 consider to be a place of detention?
Places of detention include a jail, police or sheriff’s station, holding cell, state correctional institution, local correctional facility, detention facility or Department of Youth Services facility. A law enforcement vehicle is not a place of detention for the purpose of SB 77.
How are the recordings to be used?
While SB 77 does not state how a recording can be used, existing law suggests it must be provided if requested by a defendant’s attorney during discovery.
Collecting and preserving biological evidence
What does SB 77 require concerning the collection of biological evidence?
SB 77 requires law enforcement to collect and preserve biological evidence two different ways. First, any biological evidence collected from a crime scene at which certain crimes are specified must be preserved. Second, any adult arrested on a felony charge must submit to DNA collection.
When does this go into effect?
The requirement to preserve biological evidence is effective July 6, 2010. The requirement that adult offenders submit to DNA collection goes into effect July 1, 2011.
Who is responsible for collecting DNA samples from adults arrested on felony charges?
SB 77 states that the head of the arresting agency must arrange for the DNA specimen to be collected from the suspect during the intake process at the jail, community-based correctional facility, detention facility or law enforcement agency the suspect is transported to after the arrest.
What sort of biological evidence do I have to preserve?
SB 77 requires the preservation of sexual assault kits and any item, such as clothing, that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids or any other identifiable biological material that was collected as part of an investigation and might reasonably incriminate or exonerate a suspect.
How do I request DNA collection kits?
Free DNA collection kits are available by e-mailing BCI’s CODIS Unit at CODIS@OhioAttorneyGeneral.gov.
Do I have to maintain biological evidence for every crime?
No. You must retain evidence for crimes of aggravated murder, murder, voluntary manslaughter, first- and second-degree involuntary manslaughter, first- and second-degree aggravated vehicular manslaughter, rape, attempted rape, sexual battery or underage gross sexual imposition.
How long do I have to preserve the biological evidence?
In the case of aggravated murder or murder, you must secure the evidence for as long as the crime remains unsolved. In unsolved cases involving other offenses, you must maintain the evidence for 30 years from the time of collection.
If a person is convicted of the crime but did not plead guilty, the evidence must be maintained for 30 years or until the expiration of the latest period of time (whichever comes first) that the person is:
Under community control sanction
Under any order of disposition for the offense
Under judicial or supervised release for the offense
On probation or parole for the offense
Under post-release control for the offense
Involved in civil litigation or subject to registration
If the offender is still incarcerated after 30 years, the evidence must be kept until the offender is released from incarceration or dies.
In other words, the offender must have fully completed his sentence, including probation. The offender must not be subject to any registration requirements, such as sex offender registration. And there must be no pending civil litigation stemming from the offense. If all of these criteria are met, you may dispose of the biological evidence. Otherwise, you must wait 30 years.
Can I ever dispose of the evidence before those time periods expire?
Yes, there are two circumstances under which you can dispose of the evidence. Which one applies depends on whether the offender was found guilty or pleaded guilty.
What if the offender is found guilty?
To dispose of the evidence, you must provide written notice of your intent by certified mail to all of the following:
The attorney of record for the offender
The Ohio public defender
The county prosecutor
The Ohio attorney general
If you receive no responses after one year, you can dispose of the evidence. If any of those parties request that the evidence be retained, you must comply.
What if the offender pleads guilty?
If the offender pleads guilty or no contest, you can destroy the evidence five years after the plea and any appeals from the plea have been exhausted unless the offender requests retention and a court finds good cause to retain the evidence.
What if I have something like a car? Do I have to keep that?
No. SB 77 allows disposal of items that are too large to retain. However, you must remove and preserve portions of the evidence that are likely to contain biological evidence.
Do I have any other obligations?
Yes, any “governmental evidence-retention entity” must provide an inventory of the biological evidence it possesses in connection with a case if requested to do so in writing by the defendant.
Also, you must maintain the biological evidence in a manner and amount sufficient to develop a DNA profile.
Are lineups permitted under SB 77?
Yes, but law enforcement agencies must follow specific procedures for them.
What forms of lineups are permitted?
The law does not state a preference for any particular form of lineup. The decision on which type of lineup to use is left to individual agencies, and you should determine which system works best for your agency.
However, regardless of whether you are using a traditional photo array, folder system or live lineup, you should always use a “blind” administrator. If that is not possible, you should use a “blinded” administrator.
A “blind” administrator is one who does not know the identity of the suspect. A “blinded” administrator is one who knows the identity of the suspect, but does not know which lineup member the eyewitness is looking at because a folder system or a substantially similar system is used.
The law addresses lineups in three sections; Section A defines the terms contained in the law; Section B requires law enforcement agencies to adopt procedures for conducting live or photo lineups; and Section C states the consequences for failing to comply with the requirements of the statute.
Using a “blind” administrator ensures the highest level of compliance and greatly reduces the risk of non-compliance under Section C. Failure to use a “blind” administrator likely will be subjected to judicial scrutiny.
If you do not use a “blind” administrator, you must document the reasons why you were unable to do so in writing at the time of the lineup. You may then use a “blinded” administrator. Likewise, if you cannot use a blinded administrator, you must document the reasons why in writing at the time of the lineup.
What is a folder system for conducting a photo lineup?
This system uses individual photographs divided into folders for eyewitness identification. The statute provides a detailed procedure for conducting a folder-based photo lineup.
The Ohio Law Enforcement Gateway’s Electronic Photo Lineup can be used to obtain photographs for a photo lineup.
What are the administrator’s duties?
Administrators must record all of the following:
All identification or non-identification results (signed by the eyewitnesses), including eyewitnesses’ confidence statements and the results of any subsequent viewings.
The names of all people present.
The date and time of the lineup.
Eyewitness identification of any of the individuals in the lineup.
Names of the lineup members and the source of the photographs or people in the lineup.
A blind administrator also must 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.
What happens if I don’t follow these rules?
Any failure to comply with the rules may affect the admissibility of the evidence, and the failure may be presented to the jury to attack the credibility of the identification.
SB 77 says the Attorney General can establish additional lineup rules. Has the Attorney General done this?
As of this time, the Attorney General has not established additional rules regarding lineups.