Not All Ohio Police Photo Line-Ups Follow New ‘Preferred’ Method


UPDATED: Tuesday October 22, 2013 10:44 AM

Tim Young is Ohio's top public defender, and he is bothered by what is going on with the way suspects get picked out of line-ups.

“We now know a better way with almost no cost involvement at all,” said Young.

Some Ohio police departments still use a method called a "six-pack." That's where suspect photos are shown side-by-side.

“The evidence shows that when you don't have the perpetrator in one of those six-packs, about 25 percent of the time you still get false identifications,” he added.

Robert McClendon is just the kind of guy Young is talking about.

He spent 18 years in prison based on a false conviction. The conviction came because police put his mug shot side-by-side with some others.

A DNA test finally cleared McClendon. He says he then went to the statehouse to make eyewitness identification more reliable.

“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 wrongly convicted,” said McClendon.

Lawmakers at the statehouse changed the law. The new law goes on for pages explaining how police should use a new system called the “folder method.”

There is a training video that demonstrates the “folder method.” Experts say it makes police less likely to taint eyewitness identification.

“The folders are handed to the witness one folder at a time. The witness views the folder for a short period of time and then hands it back,” the video explains.

Some agencies, such as Columbus and the Franklin County Sheriff ,don't require the “folder method.” They say that's because the law doesn't make them.

CPD also points to Ohio's Attorney General, Mike DeWine's website. It says: "the law does not state a preference for any particular form of line-up."

Young does not see that as correct.

“I sat at the tables with the law enforcement officers. It was clearly the legislative intent that the folder system be adopted,” explained Young.

“I think we have come a long way. I think we have a good system,” said  Ohio Attorney General Mike DeWine.

DeWine disputes the public defender's view of the law.

“The state legislature did not say that the ‘folder method is preferred.’ There is nowhere in the statute does it say that,” argues DeWine.

Literally speaking, DeWine is right. The law does not say the folder system should be used. It just explains how it's supposed to work.

But at least one appeals court has interpreted that as meaning there is "a clear preference" for the folder method. However, that declaration was “dicta,” said an attorney for the Attorney General’s Office. The term applies to statements in court opinions by judges that do not have binding authority in future cases.

The Attorney General also sent other cases that the folder method is not required. However, those cases said nothing about the folder method was Ohio’s preferred approach.

Young says police that ignore the folder system will keep throwing the wrong people in prison.

“I think it's a big mistake. I think over the years, they're going to realize that mistake.”    
 

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