New Law To Improve Eyewitness Identification Overlooked By Some Police Departments


UPDATED: Thursday August 29, 2013 11:50 PM

A man who was wrongfully convicted expressed concern over findings by 10 Investigates that some law enforcement agencies are not following a law meant to make eyewitness identification convictions more reliable.  

"Doing time for something you didn't do is the worst time," Robert McClendon said.

McClendon's problems started when police used a photo lineup to prove their case against him. McClendon says it was just a few pictures side- by-side.

McClendon says police put his photo in the middle.

"It was like three or four photos. I think it was three. My attorney told me it was three and mine was in the middle," McClendon said during an interview.  "We all know how that goes."

How it went was McClendon served 18 years in prison because he was falsely identified. Pressure from the Columbus Dispatch and a DNA technology finally proved he was innocent.

After he got out of jail, McClendon turned his eyes to the statehouse. He wanted lawmakers to change how police do photo lineups. Instead of the old way of putting them side-by-side, he wanted something like was shown in a police training video from Massachusetts.

Experts say the technique known as the folder system minimizes false identifications.

The Ohio legislature passed a law back in 2010 adopting that approach.

"We lobbied real hard for that bill," McClendon said. "We thought it was a good bill."

In one appeals court opinion identified by 10 Investigates, the court stated there is now a "clear preference" for the folder system.

But 10 Investigates has learned instead of going with that folder system that the law suggests, some local law enforcement agencies are still using the old system; one agency apparently did not even know about the law.

Wellston Police Detective John Robinson admitted his department did not know about the law in a recent court hearing.

The failure to use the new law led to a dramatic moment during that court hearing.

An eyewitness, who had picked the defendant of the old style side-by-side method, did not recognize the same suspect's picture while on the stand.

When the defense attorney handed victim John Queen the pictures he had previously used to identify the suspect, Queen denied seeing them.

"Those were not the identifying pictures. They may be the man, I am not saying that," Queen said. "But they were not the ones I was so sure was the man."

The case was later resolved by a plea agreement and the Wellston Police Chief says his department now has a policy that conforms to the new law.

Defense attorney Adam Nemann says departments that do photo lineups the old way and don't use that folder system not only run the risk of convicting the wrong person, but also gives him a tactical advantage as he tries to get the identification thrown out, or as attorneys say, "suppressed."  

"Without a doubt that will strengthen my case," said Nemann. "It gives us a lot to argue in suppression issues."

10 Investigates checked and found that neither the Franklin County Sheriff's Office nor the Columbus Police Department require detectives to use the folder system. Both stated the reason is because the law does not require them to use it.

McClendon said the information disappoints him.

"Eyewitness identification is so strong and so powerful that we need to do everything we can to make sure that we safeguard people from being wrongfully convicted," McClendon said.

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