Modern science instructs that memory is not the concrete vault that an average person would believe, but instead, it is a fluid process that is easily manipulated. The works of Dr. Elizabeth Loftus and her studies in repressed memory and implanting false memories are so very instructional on the issue. Unfortunately, mistaken eyewitness identification is a leading cause of wrongful convictions. The Innocence Project reports that “Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.” http://www.innocenceproject.org/fix/Eyewitness-Identification.php Even the National Institute for Justice of the U.S. Justice Department has recognized the need for eyewitness identification reform. http://www.nij.gov/nij/topics/law-enforcement/investigations/eyewitness-identification/welcome.htm
In large part because of the work of the University of Cincinnati College of Law, the Ohio General Assembly enacted S.B. 77 which became effective on July 6, 2010. Now found in R.C. 2933.81 to .831, Ohio mandates specific procedures for recording interrogations, and conducting photo arrays and lineups. The statutes require that photo lineups be conducted by a “blind administrator.” The administrator will read a set of instructions and distribute certain folders to the witness. Five of the folders will contain photographs of non-suspects, one of the suspect, and four blank photographs. All of the photographs are placed in folders and numbered specifically according to R.C. 2933.83(A)(6)(c) and (d). R.C. 2933.83(A)(6)(i) specifically instructs that the officer “shall not say anything to the eyewitness or give any oral or nonverbal cues.”
Unfortunately, the statute does not go far enough for protecting the trial from evidence gathered not in compliance with the statute. Instead of mandating that such evidence be excluded, R.C. 2933.83(C) goes only so far as to instruct that the evidence of a failure to comply with the statute is admissible at trial. One would think, that if the danger of wrongful convictions from mis-identification is important enough to legislate specific protections, the danger of mis-identification should also require exclusion from evidence of any identification that does not comply with the statute’s mandates.
That said, the statutes do also serve to emphasize to everyone involved in such identifications of the inherent unreliability of eyewitness identification. This includes defense counsel who must take extra effort to ensure such identifications are reliable.
