Cold Case Lessons for Post-Conviction DNA

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Cold Case Lessons for Post-Conviction DNA

• Professor Jules Epstein
• NIJ 2009

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(No Transcript)
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Lesson I Corroborative Evidence Isnt The Test

• Exonerations have
• Confessions
• Forensics
• Eyewitnesses
• Informants

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Lesson I Decisional Law

• Just because the prosecution's evidence, if
  credited, would provide strong support for a
  guilty verdict, it does not follow that evidence
  of third-party guilt has only a weak logical
  connection to the central issues in the case.
• Holmes (trial standard)

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Lesson I Decisional Law

• The strength of the evidence against a
  defendant is not a relevant factor in determining
  whether his identity as the perpetrator was a
  significant issue. State v. Peterson, 836 A.2d
  821, 827 (App.Div. 2003)

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Lesson I Decisional Law

• The strength of the State's case was not a
  hurdle that he had to overcome in order to meet
  the statute's requirements for postconviction
  forensic testing. Illinois.

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Lesson I Science

• In a recent staged crime study, witnesses who
  viewed a lineup and picked person A or no one
  switched their identification to person B when
  told that B had confessed.

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Lesson I Investigation Errors
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Lesson I Investigation Errors

• Tunnel Vision has afflicted both
  prosecution/police and defense investigations.
• THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN
  CRIMINAL CASES, 2006 Wis. L. Rev. 291 ,

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Keep Investigating

• In 12 DNA exoneration cases, defendants were
  convicted when DNA evidence at trial made clear
  it was not the accused.
• The facts fit some theory.

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Keep Investigating

• In the 12 cases, when the crime scene DNA was run
  against the database or against a new suspect,
  the real more likely? perpetrator was found.

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Lesson II ConstitutionalityIsnt The Test
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Concerns Regarding Suppression Law - I

• Of the first 200 DNA exonerations, 158 involved
  eyewitness testimony
• 29 raised suggestive ID claims
• None received relief

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Concerns RegardingSuppression Law - II

• Of the first 200 DNA exonerations, 20 involved
  confessions
• 10 cases challenged constitutionality
• 13 cases challenged some aspect of confession
• None prevailed

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Lesson III Criminal PastIsnt The Test
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Exonerees Had a Past

• In 80 of the DNA exoneration cases, more than
  half of the exonerees had prior convictions.

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The Disconnect

• No DNA testing because defendant confessed and
  did not challenge confession as
  unconstitutionally obtained. Pennsylvania.

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The Disconnect

• If the allegation of the petitioner's innocence
  is recent and the evidence supports the
  petitioner as the offender, a prior confession
  may be enough to deny DNA testing. Tennessee

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Disconnect

• It is inconsistent to allow defendants who
  pleaded guilty to use post-conviction
  proceedingsin light of alleged new evidence

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Disconnect

• Both his confession and his new claims cannot be
  true. A defendant knows at the time of his plea
  whether he is guiltyand with the guilty plea
  waives the right to present evidence regarding
  guilt or innocence. Indiana, 2008 (not a DNA
  case).

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Disconnect

• November, 2008
• Washington State trial court denies
  post-conviction testing because the blood-spatter
  evidence was convincing and overwhelming.

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Disconnect

• Nine exonerees pleaded guilty and many more did
  not dispute identity at trial

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So, Whats A Reasonable Test?

• Ignore other evidence ask about the potential of
  the DNA?
• Remember the decision to agree to test is not
  the same as the decision of what to do with test
  results.

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Whats Reasonable

• Consider the converse DNA is sufficient to
  convict, even with bad description and no ID.
  People v. Soto, 981 P.2d 958 (Cal. 1999)
• Is this innocence or PBRD?

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Collateral Lessons - I

• Familial DNA and Darryl Hunt
• If its good enough for exonerations, isnt it
  good enough for investigations?
• Is this a database expansion issue?

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Collateral Lessons - II

• Statutes of Limitations for Prosecutions
• Eliminate
• Expand
• Toll (John Doe)
• Defense Due Process (loss of witnesses)

• Statutes of Limitations for Post-Conviction DNA
• Strict (5 states have a 1-3 year post-conviction
  limit)
• Prosecution Loss of witnesses?

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Collateral Issues - III

• Defense Access to CODIS
• Jeffrey Deskovic (database checked 16 years
  later)
• Query Is this a right under Brady v. Maryland?
  Is the federal database part of the local/state
  prosecutorial team? Kyles v. Whitley.
• 2 states allow post-conviction access to NDIS

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Collateral Issues - IV

• Should we have statutes for other types of
  post-conviction testing?
• Six states and Washington, D.C. do.

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Reliability, Not Adversariness

• Findley, TOWARD A NEW PARADIGM OF CRIMINAL
  JUSTICE HOW THE INNOCENCE MOVEMENT MERGES CRIME
  CONTROL AND DUE PROCESS, University of Wisconsin
  Law School 2009

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References

• THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN
  CRIMINAL CASES, 2006 Wis. L. Rev. 291
• John Blume, The Dilemma of the Criminal Defendant
  With a Prior Record - Lessons from the Wrongfully
  Convicted (2008)
• Brandon Garrett, Claiming Innocence, 92 Minn. L.
  Rev. 1629 (June, 2008)

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References

• Brandon L. Garrett, Judging Innocence, 108 Colum.
  L. Rev. 55 (2008)
• Risinger, INNOCENTS CONVICTED AN EMPIRICALLY
  JUSTIFIED FACTUAL WRONGFUL CONVICTION RATE, 97 J.
  Crim. L. Criminology 761 (Spring, 2007)

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References

• Epstein, Genetic Surveillance - The Bogeyman
  Response to Familial DNA Investigations
  (forthcoming, Journal of Law, Technology and
  Policy)
• Samuel Gross, Convicting the Innocent, Annu. Rev.
  Law Soc. Sci. 2008. 417392.

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References

• House v. Bell, 126 S. Ct. 2064 (U.S. 2006)
• United States v. Risha, 445 F.3d 298 (3rd Cir.
  2006)