G E N E R A L O R D E R 41 CRIMINAL OPERATIONS COMPONENT SUBJECT

Transcription

1

2

3

4 G E N E R A L O R D E R NUMBER 41 CRIMINAL OPERATIONS COMPONENT SUBJECT REVIEW DATE APPROVAL DATE 07/22/2010 CONDUCTING PHOTO LINEUPS ISSUE DATE 07/22/2010 EFFECTIVE DATE 07/22/ /2017 DISTRIBUTION Agency Personnel AMENDS: 05/08/2015: (B) noted as Folder System, Appendix renamed from A to F-1, B to F- 2, C to F-3, D to F-4 and (C) is all new. CANCELS: ISSUED BY: Sheriff Marty V. Donini INDEX AS: Criminal Investigation Procedures Preliminary Investigations Follow Up Investigations Investigative Check List Rank Titles and Salary Schedule Roll Call Investigative Task Forces Polygraph Examinations Use of Informants Conducting Photo Lineups Conducting Lineups Conducting Show-ups The General Orders developed here relate to the administration of the Criminal Operations Component. The Scioto County Sheriff's Office recognizes the importance of properly and professionally conducting photo lineups and lineups because of their potential for identifying or eliminating a person as a suspect in an offense.

5

6 41 CRIMINAL OPERATIONS COMPONENT 41.2 CRIMINAL INVESTIGATIONS Conducting Photo Lineups Effective July 6, 2010, O.R.C requires all law enforcement agencies, at a minimum, to adopt procedures relating to live or photo lineups. This policy is therefore being developed to comply with the Ohio Revised Code and shall be effective immediately. A. Definitions as used in this policy and as defined in O.R.C : 1. Administrator means the person conducting a photo lineup or live lineup. 2. Blind administrator means the administrator does not know the identity of the suspect. Blind administrator includes an administrator who conducts a photo lineup through the use of a folder system or a substantially similar system. 3. Blinded administrator means the administrator may know who the suspect is, but does not know which lineup member is being viewed by the eyewitness. Blinded administrator includes an administrator who conducts a photo lineup through the use of a folder system or a substantially similar system. 4. Eyewitness means a person who observes another person at or near the scene of an offense. 5. Filler means either a person or a photograph of a person who is not suspected of an offense and is included in an identification procedure. 6. Folder system means a system for conducting a photo lineup that satisfies all of the following: (a) (b) The investigating officer uses one suspect photograph that resembles the description of the suspected perpetrator of the offense provided by the eyewitness, five filler photographs of persons not suspected of the offense that match the description of the suspected perpetrator but do not cause the suspect photograph to unduly stand out, four blank photographs that contain no images of any person, and ten empty folders. The investigating officer places one filler photograph into one of the empty folders and numbers it as folder 1.

7 (c) (d) (e) (f) (g) The administrator places the suspect photograph and the other four filler photographs into five other empty folders, shuffles the five folders so that the administrator is unaware of which folder contains the suspect photograph, and numbers the five shuffled folders as folders 2 through 6. The administrator places the four blank photographs in the four remaining empty folders and numbers these folders as folders 7 through 10, and these folders serve as dummy folders. The administrator provides instructions to the eyewitness as to the lineup procedure and informs the eyewitness that a photograph of the alleged perpetrator of the offense may or may not be included in the photographs the eyewitness is about to see and that the administrator does not know which, if any, of the folders contains the photograph of the alleged perpetrator. The administrator also shall instruct the eyewitness that the administrator does not want to view any of the photographs and will not view any of the photographs and that the eyewitness may not show the administrator any of the photographs. The administrator shall inform the eyewitness that if the eyewitness identifies a photograph as being the person the eyewitness saw the eyewitness shall identify the photograph only by the number of the photograph s corresponding folder. The administrator hands each of the ten folders to the eyewitness individually without looking at the photograph in the folder. Each time the eyewitness has viewed a folder, the eyewitness indicates whether the photograph is of the person the eyewitness saw, indicates the degree of the eyewitness s confidence in this identification, and returns the folder and the photograph it contains to the administrator. The administrator follows the procedures specified in this division for a second viewing if the eyewitness requests to view each of the folders a second time, handing them to the eyewitness in the same order as during the first viewing; the eyewitness is not permitted to have more than two viewings of the folders; and the administrator preserves the order of the folders and the photographs they contain in a facedown position in order to document the steps specified in division (6)(h) of this section

8 (h) (i) The administrator documents and records the results of the procedure described in divisions (6)(a) to (f) of this section before the eyewitness views each of the folders a second time and before the administrator views any photograph that the eyewitness identifies as being of the person the eyewitness saw. The documentation and record includes the date, time, and location of the lineup procedure; the name of the administrator; the names of all of the individuals present during the lineup; the number of photographs shown to the eyewitness; copies of each photograph shown to the eyewitness; the order in which the folders were presented to the witness; the source of each photograph that was used in the procedure; a statement of the eyewitness s confidence in the eyewitness s own words as to the certainty of the eyewitness s identification of the photographs as being of the person the eyewitness saw that is taken immediately upon the reaction of the eyewitness to viewing the photograph; and any additional information the administrator considers pertinent to the lineup procedure. If the eyewitness views each of the folders a second time, the administrator shall document and record the statement of the eyewitness s confidence in the eyewitness s own words as to the certainty of the eyewitness s identification of a photograph as being of the person the eyewitness saw and document that the identification was made during a second viewing of each of the folders by the eyewitness. The administrator shall not say anything to the eyewitness or give any oral or nonverbal cues as to whether or not the eyewitness identified the suspect photograph until the administrator documents and records the results of the procedure described in divisions (6)(a) to (g) of this section and the photo lineup has concluded. 7. Live lineup means an identification procedure in which a group of persons, including the suspected perpetrator of an offense and other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator of the offense. 8. Photo lineup means an identification procedure in which an array of photographs, including a photograph of the suspected perpetrator of an offense and additional photographs of other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining 41-28

9 whether the eyewitness identifies the suspect as the perpetrator of the offense. 9. Perpetrator means the person who committed the offense. 10. Suspect means the person believed by law enforcement to be the possible perpetrator of the offense. B. Photo Lineup Procedures (Folder System) 1. Detectives/Deputy Sheriffs must select six photographs (suspect and five filler photographs along with four blank filler photographs ) for photo lineups that have similar backgrounds and styles. The photographs must be either all black and white or all color. Persons in the photographs must have similar physical characteristics, i.e., beards, moustaches, long hair, short hair, etc. Detectives/Deputy Sheriffs must select a suspect photograph that resembles the description of the suspect, as provided by the witness, and five filler (non-suspect) photographs that match the description of the suspect but do not cause the suspect photograph to unduly stand out. 2. Once the Detective/Deputy Sheriff has obtained the six photos, the Detective/Deputy Sheriff shall then make copies of all six photographs and record the names, identifying information and the source of each photograph directly on the copy of each photograph. The copies of the six photographs shall be set aside and retained by the Detective/Deputy Sheriff for future reference. In lieu of making copies of the originals photographs, the Detective/Deputy Sheriff may retain a computerize one page sheet with all of the photographs containing the names, identifying information and the source of each photographs. The Detective/Deputy Sheriff shall then place one filler photograph ( original not copy) in a folder and label the folder on the outside as Folder #1. The Detective/Deputy Sheriff shall then select an individual who can conduct the photo lineup and who meets the qualifications of a Blind Administrator. The Detective/Deputy Sheriff shall then give the Administrator the six photographs (including the one already placed in the folder labeled as Folder #1 along with the four blank filler photographs and nine empty folders of the same type as used for Folder #1. 3. The Administrator may be any sworn law enforcement officer who does not know the identity of the suspect and does not have to be a Detective/Deputy Sheriff or an employee of the Sheriff s Office. The Administrator places the suspect photograph and the other four filler 41-29

10 photographs into five other empty folders, shuffles the five folders so that the administrator is unaware of which folder contains the suspect photograph, and numbers the five shuffled folders as folders 2 through The Administrator places the four blank photographs in the four remaining empty folders and numbers these folders as folders 7 through 10, and these folders serve as dummy folders. 5. The Administrator must read the photo spread instructions (Appendix F-1) verbatim to the witness and have the witness acknowledge that he/she understands the instructions before viewing the photographs. 6. The Administrator shall then initiate the completion of the Administrator Documentation and Record form (Appendix F-2) by completing the top portion only noting the date, time, and location of the lineup procedure; the name of the administrator; type of administrator; name of the witness and the names of all of the individuals present during the lineup. The Administrator hands each of the ten folders to the eyewitness individually in numeric order without looking at the photograph in the folder. Each time the eyewitness has viewed a folder, the eyewitness indicates whether the photograph is of the person the eyewitness saw, indicates the degree of the eyewitness s confidence in this identification, and returns the folder and the photograph it contains to the Administrator. The Administrator shall immediately document and record the witness s response (using eyewtiness s own words) for each folder/photograph on the Witness Confidence Statement (Appendix F-3). The Administrator must not provide feedback to the witness until the Administrator documents and records the results of and concludes the photographic lineup. 7. The Administrator follows the exact same procedures specified above for a second viewing if the eyewitness requests to view each of the folders a second time. The Administrator shall hand each of the ten folders to the eyewitness individually in the same order as the first viewing. The eyewitness is not permitted to have more than two viewings of the folders.the Administrator must preserve the order of the folders and the photographs they contain in a facedown position in order to document the witness s response for each folder/photograph viewed for a second time on the Witness Confidence Statement (Appendix F-3 Second Viewing). 8. If the eyewitness views each of the folders a second time, the Administrator shall document and record the statement of the eyewitness s confidence in the eyewitness s own words as to the certainty of the eyewitness s identification and/or nonidentification of a photograph as 41-30

11 being of the person the eyewitness saw and document that the identification and/or nonidentification was made during a second viewing of each of the folders by the eyewitness. 9. Once the witness has completed the photo lineup the Administrator shall then have the eyewitness sign and date the completed Witness Confidence Statement form (Appendix F-3) which contains the results of the identification for each folder/photo as yes or no along with the degree of the eyewitness s confidence in each identification and/or nonidentification using the eyewitness s own words. 10. If a witness is unable to make a positive identification but is willing to indicate that he/she is reasonably certain or a percentage certain, the Administrator must document the witness s response and include the level of confidence next to the number of the folder/photograph. 11. When there is more than one witness, detectives must ensure the witnesses remain separated during and after the viewing of the photo spread to eliminate the opportunity to discuss the photo spread. 12. Once the witness has completed the photo lineup and signed the Witness Confidence Statement (Appendix F-3) noting the results of the identification and/or nonidentification, the Administrator shall then complete the bottom portion of the Administrator Documentation and Record form (Appendix B) by using the information written directly on the copied photos (being retained by the Detective/Deputy Sheriff or the computerized one page sheet containing all six photos) to identify the name of the subject depicted in the photos of each of the folders, their identifiers and the source of each photo. This shall be done to assure that the identities of the photos viewed by the eyewitness in each of the first six folders are documented accurately. 13. The Administrator shall then return all ten folders and the completed forms to the Detective/Deputy Sheriff who is conducting the investigation. The Detective/Deputy Sheriff shall then complete and evidence routing form for the ten folders and the completed forms and deliver them to the Scioto County Sheriff s Office employee responsible for logging evidence into the evidence room in the event they are needed later for trial. However, the Detective/Deputy Sheriff should photocopy the forms and place the photocopy of the forms and the copies of the photos (copies made prior to giving the originals to the Administrator) in the case file

12 14. When it is impracticable for a Blind Administrator to conduct a photo lineup, the Detective/Deputy Sheriff must contact the Captain of the Detective Division for guidance and assistance. In the event, after consulting with the Captain of the Detective Division, it is determined that it is in fact impracticable for a Blind Administrator to conduct the photo lineup, the Captain and the Detective/Deputy Sheriff will then decide who can serve as a Blinded Administrator. If a Blinded Administrator is used as opposed to a Blind Administrator, the Blinded Administrator selected to conduct the photo lineup shall be required to state in writing the reason for the impracticability on the Administrator Statement of Impracticability form (Appendix F-4). In the event that it is determined to be impracticable to use neither, a Blind Administrator nor a Blinded Administrator, then the Administrator selected to conduct the photo lineup shall be required state in writing the reason for the impracticability for using neither, a Blind Administrator nor a Blinded Administrator on the Administrator Statement of Impracticability form (Appendix F-4). After concluding the photo lineup, the Administrator shall also return this completed form to the Detective/Deputy Sheriff who is conducting the investigation. The administration of photographic lineups must be in accordance with Ohio Revised Code If the Detective/Deputy Sheriff makes a video or audio recording of the photographic lineup, the Detective/Deputy Sheriff shall complete an evidence routing form for the video or audio recording and deliver them to the Scioto County Sheriff s Office employee responsible for logging evidence into the evidence room in the event they are needed later for trial. C. Photo Lineup Procedures (Photo Array Method - Preferred) 1. Detectives/Deputy Sheriffs must select six photographs (suspect and five filler photographs ) for photo lineups that have similar backgrounds and styles. The photographs must be either all black and white or all color. Persons in the photographs must have similar physical characteristics, i.e., beards, moustaches, long hair, short hair, etc. Detectives/Deputy Sheriffs must select a suspect photograph that resembles the description of the suspect, as provided by the witness, and five filler (non-suspect) photographs that also resemble the description of the suspect but do not cause the suspect photograph to unduly stand out. 2. Once the Detective/Deputy Sheriff has selected the six photos, the Detective/Deputy Sheriff shall print/place all six photos on a single sheet of paper (hereafter referred to as photo lineup array ) which shall also 41-32

13 include a unique lineup identification number directly beneath each photo. This photo lineup array which includes the unique lineup identification number directly beneath the photo shall then be placed in a standard office file folder. All photo lineup arrays shall be assembled using six photos placed in two lines with three photos in each line. The Detective/Deputy Sheriff shall then generate a photo lineup key which shall include the exact same photos as those in the photo lineup array along with the unique lineup identification number corresponding to the same photos as in the photo lineup array. In addition, the photo lineup key shall also include the names, identifying information and the source of each photograph being used in the photo lineup array. The photo lineup key containing copies of the photos included in the photo lineup array shall be set aside and retained by the Detective/Deputy Sheriff for future reference and shall be made part of the case investigation. After printing out the suspect photo and five filler photos, do not allow the witness or lineup administrator to view the key. Detective/Deputy Sheriff may retain a computerized one page lineup key sheet with all of the photographs containing the names, identifying information and the source of each photograph. The Detective/Deputy Sheriff shall then select an individual who can conduct the photo lineup and who meets the qualifications of a Blind Administrator. The Detective/Deputy Sheriff shall then give the Administrator the single folder containing the photo lineup array along with the Administrator Lineup instructions and Photo Lineup results form. 3. The Administrator may be any sworn law enforcement officer who does not know the identity of the suspect and does not have to be a Detective /Deputy Sheriff or an employee of the Sheriff s Office. 4. The Administrator must read the photo lineup array instructions (Appendix PA-1) verbatim to the witness and have the witness acknowledge that he/she understands the instructions before viewing the photographs. 5. The Administrator shall then initiate the completion of the Administrator Documentation and Record form (Appendix PA-2) by completing the top portion only noting the date, time, and location of the lineup procedure; the name of the administrator; type of administrator; name of the witness and the names of all of the individuals present during the lineup. The Administrator then hands the single folder containing the photo lineup array which includes a unique lineup identification number directly beneath each photo to the eyewitness. The eyewitness shall thoroughly and without haste view all six photos. Once the eyewitness concludes viewing all six photos, he/she shall indicate verbally to the Administrator whether 41-33

14 any of the photographs are of the person the eyewitness saw. He/she shall also verbally indicate the degree of the eyewitness s confidence in this identification. The eyewitness shall then place their initials along with the date directly underneath the unique lineup identification number corresponding to the photo the eyewitness indicated as being the person involved in the crime being investigated. The witness shall then return the single folder containing the photo lineup array back to the Administrator. The Administrator shall immediately document and record the witness s response (using eyewitnesses own words) for the photograph identified on the Witness Confidence Statement (Appendix PA-3). Photos one, two and three shall be those in the first line starting from left to right while photos four, five and six shall be those in the second line starting from left to right. The Administrator must not provide feedback to the witness until the Administrator documents and records the results of and concludes the photographic lineup. 6. The Administrator follows the exact same procedures specified above for a second viewing if the eyewitness requests to view the photo lineup array a second time. The eyewitness is not permitted to have more than two viewings of the photo lineup array. The Administrator shall immediately document and record the witness s response (using eyewitnesses own words) for each photograph viewed for the second time on the Witness Confidence Statement (Appendix PA-3 - Second Viewing). 7. If the eyewitness views the photo lineup array a second time, the Administrator shall document and record the statement of the eyewitness s confidence in the eyewitness s own words as to the certainty of the eyewitness s identification and/or non-identification of a photograph as being of the person the eyewitness saw and document that the identification and/or non-identification was made during a second viewing of the photo lineup array by the eyewitness. 8. Once the witness has completed the photo lineup array, the Administrator shall then have the eyewitness sign and date the completed Witness Confidence Statement form (Appendix PA-3) which contains the results of the identification for each photo as yes or no along with the degree of the eyewitness s confidence in the identification and/or nonidentification using the eyewitness s own words. 9. If a witness is unable to make a positive identification but is willing to indicate that he/she is reasonably certain or a percentage certain, the Administrator must document the witness s response and include the level 41-34

15 of confidence next to the number of the photograph noted in the Witness Confidence Statement. 10. When there is more than one witness, detectives must ensure the witnesses remain separated during and after the viewing of the photo lineup array to eliminate the opportunity to discuss the photo lineup array. In the event there are multiple witnesses, the Detective/Deputy Sheriff shall provide multiple single folders to the Administrator, each containing their own individual photo lineup array for each eyewitness. The purpose of this procedure is to assure that multiple witnesses do not see the initials and date placed under the photo by the other witness. 11. Once the witness has completed the photo lineup and signed the Witness Confidence Statement (Appendix PA-3) noting the results of the identification and/or non-identification, the Administrator shall then complete the bottom portion of the Administrator Documentation and Record form (Appendix PA-2) by using the information noted in the photo lineup key (being retained by the Detective/Deputy Sheriff or the computerized one page sheet containing all six photos) to identify the name of the subject depicted in the photos of each of the photos, their identifiers and the source of each photo. This shall be done to assure that the identities of the photos viewed by the eyewitness in photo lineup array are documented accurately. Photos one, two and three shall be those in the first line starting from left to right while photos four, five and six shall be those in the second line starting from left to right. 12. The Administrator shall then return the single folder containing the photo lineup array and the completed forms to the Detective/Deputy Sheriff who is conducting the investigation. The Detective/Deputy Sheriff shall then complete the evidence routing form for the single folder containing the photo lineup array and the completed forms and deliver them to the Scioto County Sheriff s Office employee responsible for logging evidence into the evidence room in the event they are needed later for trial. However, the Detective/Deputy Sheriff should photocopy the forms and place the photocopy of the forms and the copies of the photos (copies made prior to giving the originals to the Administrator) in the case file. 13. When it is impracticable for a Blind Administrator to conduct a photo lineup, the Detective/Deputy Sheriff must contact the Captain of the Detective Division for guidance and assistance. In the event, after consulting with the Captain of the Detective Division, it is determined that it is in fact impracticable for a Blind Administrator to conduct the photo lineup, the Captain and the Detective/Deputy Sheriff will then decide who 41-35

16 can serve as a Blinded Administrator. If a Blinded Administrator is used as opposed to a Blind Administrator, the Blinded Administrator selected to conduct the photo lineup shall be required to state in writing the reason for the impracticability on the Administrator Statement of Impracticability form (Appendix PA-4). In the event that it is determined to be impracticable to use neither, a Blind Administrator nor a Blinded Administrator, then the Administrator selected to conduct the photo lineup shall be required state in writing the reason for the impracticability for using neither, a Blind Administrator nor a Blinded Administrator on the Administrator Statement of Impracticability form (Appendix PA-4). After concluding the photo lineup, the Administrator shall also return this completed form to the Detective/Deputy Sheriff who is conducting the investigation. The administration of photographic lineups must be in accordance with Ohio Revised Code If the Detective/Deputy Sheriff makes a video or audio recording of the photographic lineup, the Detective/Deputy Sheriff shall complete an evidence routing form for the video or audio recording and deliver them to the Scioto County Sheriff s Office employee responsible for logging evidence into the evidence room in the event they are needed later for trial