I can see how and why opposition to retesting is needed. It doesn’t take to vivid an imagination to see how convicted persons could abuse it. What I don’t see is the state wanting to win for winning’s sake. An across the board ban on using DNA for retesting looks to me to be nothing more than that.
We are the state and I don’t see too many “we-s” wanting people serving time for crimes they didn’t commit.
Easy solution to cut down on nuisance testing: If you request the test, and the DNA matches yours, thereby proving your presence, it’s an instant life sentence. If you’re already doing life, it turns to death. If you’re already on death row, your execution is scheduled for the following week. Easy. Only those who honestly believe the DNA test will help them, as opposed to those who want to muck up the system or delay whatever is coming to them.
But it is proof that someone else was there. In many cases, that fact alone is conclusive proof that the accused did not commit the crime.
(fighting ignorance hat: ON!)
Of course it can prove innocence, as two seconds thought would make obvious to the meanest intelligence.
Example: woman scratches rapist, gets blood/hair sample under her fingernails (or sperm sample or whatever). Suspect is arrested by police, they test the suspect’s DNA, and it doesn’t match the DNA from the body fluid(s) of the rapist. The suspect is innocent qed.
Of course, if you’re a prosecutor banking your career on the number of people you’ve sent to the chair, it’s not in your best interest to let someone go free. Your career is more important than an innocent person’s life or allowing the investigation for the real criminal to continue.
Been a defense attorney, a prosecutor and a judge.
Known saints and crooks and in-betweens in each job.
It’s not about the job, it’s about the person.
WRONG, WRONG, WRONG!
A prosecutor’s duty is to see that justice is done. Period. If justice requires such testing – as it does when it may prove that the innocent have been wrongly convicted – it is a prosecutor’s ethical duty to support such a request.
From the annotations to the ABA’s model rule 3.8.
It is unethical for a prosecutor to oppose a DNA test that may offer conclusive proof of innocence. I’d like to see some of the prosecutors who opposed requests that ultimately exonerated the defendant be brought up on ethics charges. I have no realistic hope of it ever happening.
you just discovered that prosecutors are hateworthy? their job is to obtain as many serious convictions as they can from what i understand. Blocking DNA evidence seems like a rational extention of that mindset.
You might want to take your hat in for service.
Let’s try another example: a man and a woman have sex, without using protection. Later that day, she is attacked and killed by a rapist who uses a condom. The rapist is caught and put on trial, but DNA tests on the semen found in the victim do not match the DNA of the rapist.
Does the DNA test prove his innocence?
Did ZiggyB say that DNA can always prove innocence? Hmm? No. Merely that Mr. Moto’s blanket claim that it can never prove innocence is false. Obviously in some cases it cannot prove innocence. Just as obviously in some cases it can.
Max Torque, and would you be the type of individual to generally believe that OJ was innocent?
Yeah, it’s hpothetically possible, but wouldn’t the man that had consentual sex with the rape/murder victim generally be willing to provide a DNA sample to identify the semen as his own? Ziggy B’s point stands, in an enormous number of circumstances DNA evidence can successfully demonstrate that it is in the least, unlikely that a particular person committed a crime of which they are accused.
For Christ’s sake, people. My point was that just because the DNA present doesn’t match the person on trial, that doesn’t mean that the person on trial is necessarily innocent of wrongdoing. A non-matching DNA test should not instantly clear a defendant of wrongdoing any more than a movie ticket stub should necessarily provide a solid alibi for Jimmy The Weasel.
There ain’t no such thing as “proving innocence”. A non-matching DNA test sure “creates reasonable doubt”, but it doesn’t “prove innocence”.
Max
Here’s a hypothetical for you. An unknown assailant breaks into a convent and rapes a nun without a condom. During the struggle, she waps him with her crucifix and he bleeds all over a large statue of Our Lady of Northwest Texas as well as the nun’s habit. She immediately reports the attack and semen and blood samples are recovered. Suspect A is arrested and identified by the nun in a line-up. However, DNA testing demonstrates that the blood and semen samples while matching each other, did not come from Suspect A. Wouldn’t you say that DNA testing pretty much “proves” Suspect A’s innocence as much as it is ever possible to “prove” anything?
With your qualification that “as much as it is ever possible to prove anything”, sure, why not. Note, however, that in your example the DNA evidence is, apart from the nun’s ID, the only evidence offered against the defendant.
Let’s suppose further that the nun’s bloody crucifix were found at Suspect A’s residence, that several other nuns saw him fleeing the scene, that Suspect A was photographed full-face by the convent security cameras, that the fleeing person dropped Suspect A’s wallet on the way out, and that Suspect A has bragged about the rape to several of his friends. Do you still feel that the DNA test should exonerate Suspect A? Or do you think that perhaps the nun had rough, whip-laden sex with Father O’Malley by the statue of Our Lady Of North Texas earlier in the day, before the attack, and didn’t want to mention it to the prosecutors?
Anyway, we can give examples and counter-examples all day. The fact is, a DNA test can only determine that someone was there, but it can’t prove that someone wasn’t.
Why does it have to be nuns, anyway? snicker…
Ok so my jab at defense attorneys was relatively thoughtless but focusing on that over the point of the article is a little like placing finality over justice. Point taken nonetheless.
I asked a question in GQ a while back about why prosecutors so often seemed to take the same “win at any cost attitude” that defense attorneys are usually accused of, but no one really had an answer. I can understand fudging evidence if the prosecutor really believes that the defendant is guilty but I’ve seen a lot of cases where the prosecutor just seems dead set on winning, i.e, they would rather get new exculpating evidence suppressed than just drop the charges. Do they pick judges based on win/loss records? Is it just ego? Do they believe that winning at all costs will further their political career ? Perhaps they feel that since defense attorneys get to be “win at all costs” then they should too? I want the people representing me to seek justice not wins.
Hey, if it works. I happen to like the idea.
If a DNA test can’t “prove innocence” then it can’t “prove guilt” either.
Say what? 
Case A lone rapist attacks woman and leaves DNA residue.
Suspect is picked up and DNA matches. Any jury except OJ’s convicts. DNA has proved guilt.
Case B two individuals mug a victim. Victim fights back, and gets skin and blood of one of his attackers under his fingernails. Later on the second attacker gets arrested (based on other evidence) DNA does not match (natch). DNA in this case does not prove innocence. All the DNA test shows is if the person tested left any DNA at the scene that was recovered.
Case C Single attacker leaves DNA. Suspect arrested. DNA does not match. You got the wrong guy.
DNA can prove guilt, it may or may not prove innocence.
DNA may or may not prove guilt; it may or may not prove innocence. It makes no sense to assert that it can only prove one, but not the other. It depends on the circumstances of the case.
DNA can prove innocence or guilt: A woman is raped by one man; he doesn’t use a condom, and she hadn’t recently had sex with anyone else. A semen sample was recovered. A DNA match with the defendant proves guilt; no match proves innocence.
DNA can only prove guilt: A woman is gang raped by several men, at least one of whom (but not all of whom) uses a condom. She hadn’t recently had consensual sex with anyone. Samples show DNA from multiple individuals. A DNA match proves guilt; failure to match doesn’t necessarily prove innocence.
DNA can only prove innocence: A woman has consensual intercourse with a man (a stranger she can’t readily identify). Shortly thereafter, she is forcibly raped by another man. Neither uses a condom. The sample shows DNA from two individuals. Failure to match either DNA sample proves innocence; matching one of the DNA samples doesn’t necessarily prove guilt.
Of course in some philosophical sense, you could argue you can’t “prove” anything, only prove something “beyond a reasonable doubt”. At any rate, barring a guilty plea, DNA evidence, while potentially very compelling, is still evidence, and will have to be weighed by a jury.
Try this DNA can prove guilt.
A house is entered and valuable contents are stolen.
During the course of investigation, one window is found to have DNA on it, alongside a greasy smear mark.
The substance is DNA tested, it turns out to belong to a known person on the national DNA register, he is therefore previously convicted and also a prison term served person.
It turns out that the criminal’s method is to place an ear to an external window of the property to hear if anybody is within and moving around.
This is a standard modus operandi for burglars.
The person apprehend has no reason to be upon the premises, and does not live anywhere nearby.
The DNA proves the presence of a known criminal using a standard technique of burglars prior to illegal entry and theft.
There are at least two such prisoners work in my shop in jail right now.
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Err, ahh, Casdave, where are you, ahh, posting from?