Last month in State v. Hill, 2015-Ohio-1456, the Ohio Supreme Court had the opportunity to review Ohio’s photo lineup procedure. R.C. 2933.83, effective July 2010, governs the administration of photo and live lineups and is aimed at preventing the use of unnecessarily suggestive procedures. If you have not reviewed R.C. 2933.83, you should. R.C. requires any law enforcement agency that conducts photo lineups to adopt specific procedures for conducting the lineups. Such procedures must provide, at a minimum, the use of a “blind” or “blinded” administrator and a folder system. That is, someone who: does not know the identity of the suspect; uses folders, dummy folders, the suspect’s photo, filler photos, and blank photos; and makes a written record of the lineup proceedings. R.C. 2933.83 also provides guidance on what the blind administrator must do, and cannot do, during the lineup. Most importantly, evidence of non-compliance is admissible at trial. In fact, the judge will instruct the jury that such noncompliance may be considered in determining the credibility of the witness identification. So, if your agency may ever conduct a photo or live lineup, it’s time to review R.C. 2933.83 and make certain you have a legally sound policy in place.
