I’m aware of several cases in which people convicted of murder in the U.S. claim actual innocence. In such a case, the lawyers may seek to have the conviction overturned on the basis of DNA evidence found at the scene of the crime. For example, no physical evidence ties the convicted person to the scene, and DNA evidence is found at the scene that does not match the victims nor the person convicted.
Under U.S. law what are the practical or procedural hurdles in using DNA evidence as part of an effort to have a convicted murderer exonerated?
Must the DNA evidence be new evidence, not considered at the first trial, to warrant a re-examination of a case? If not, is lack of physical evidence connecting the accused to the scene, plus DNA evidence at the scene from an unidentified person, sufficient grounds to reopen a case? Does the same judge that heard the first trial hear any appeal based on DNA evidence?
Amazingly enough, many DA’s are hostile to the idea of opening a case just because the accused could be innocent. I recall reading of some states seeking to block any testing of old evidence. I suspect that (a) they are lawyers and (b) the liability of wrongful convictions are factors.
Usually, the accused was convicted based on a set of evidence. IIRC, you can often get blood type from samples of hair, semen or tissue (i.e. unde finger nails) as well as blood smears. before DNA, this was corroborating but not definitive evidence; however, if the evidence was entered in trial, then the logical argument from the convicts’ lawyer is - “let us retest the evidence that supported the conviction and see if it really is the convicted person’s.” This would be considered new discovered facts, I assume, and (IANAL) grounds to re-open the case.
If for example the accused was convicted of rape or murder; they may have a the original clothing with blood or semen samples, and it was never tested - but because every shred of evidence was collected, it is still filed away.
In one case I am aware of, a young guy was arrested, cahrged, and the case thrown out of court for a horrific murder. The accused was basically run out of town by the girl’s friends, but the judge essentially told the police “you have no case”; dismissed after the opening statements. When DNA testing was possible a few years later, the police announced they were testing the evidence. Never heard anything more from the police.
The main evidence was a bloodstained shirt -turned out to be the accused’s father’s blood, he cut himself in the yard and wrapped the shirt around his hand; and a large stain on the car seat which turned out to be animal blood. The father had no hesitation telling everyone in town about the test results…
There was a series of convictions overturned in Canada from the 1980’s; at that time police “experts” would testify that hair found at the crime scene was “a match” for the accused. When DNA came along, most of this testimony was proven to be bullshit to support the police case. There was a re-enactment of one trial on “Scales of Justice” on CBC, where the defence lawyer and the expert went in circles forever -
“Are the hair samples identical?”
“No, but they are a match. they are similar”
“How do they differ?”
“They don’t. They are a match.”
“So then, are they identical?”
“No, not identical. They are a match.” and so on…
No wonder something exact and precise and not subjective is nice evidence to have. Especially considering the FBI themselves arrested and charged an Oregon man in the Madrid train bombings based on a fingerprint that allegedly matched but did not actually. If the FBI can’t even match fingerprints correctly, what hope is there for reliable forensic evidence?
While I can’t speak for all prosecutors, the central reasons prosecutors are sometimes resistant to retesting are finality, resources and accuracy. DNA testing is not monolithic, in the sense that the test, having been invented, is the same once and for ever. It constantly improves in small and not so small increments. Prisons are full of people who claim to be innocent (whoda thunkit?) and who are motivated to constantly ask for retesting every time some new wrinkle in DNA testing improves the process.
A consequence of too ready a willingness to retest is massive exponential growth in the performance of tests - every new improvement stimulates all who have been convicted before to be retested, even if they have been retested before several times. Retesting of old cases would rapidly come to choke out the capacity to test new ones.
The idea that, whenever somebody gets the media to publish his claims they are innocent and wants a retest, we should do it because “what harm can it do?” is flawed for at least that reason. The number of media articles about such things creates the impression that there are relatively few such cases. The cost and effort in any individual case is quite expensive but not prohibitively so. The problem is that the systemic cost because of all the other cases that would have to be treated in the same way as the high profile ones is prohibitive.
Moreover, one of the more important values of a criminal justice system is finality. That is why generally only evidence that was unobtainable at the time of trial counts for re-opening convictions, otherwise defendants could hold evidence back and then get a retrial at will. The point is that any criminal justice system that does not highly value finality is just a debating society. Constantly re-opening old cases just on the invitation of the defendants is soul destroying for victims, families, etc. They are entitled to put the matter behind them.
These suggestions seek to maximize opportunities for the truly innocent to obtain redress without forfeiting the legal system’s need for finality. For while we realize that claims of factual innocence must be taken seriously, and that we cannot tolerate the incarceration of those not guilty, we must also recognize the desirability of definitive determinations. In an era in which courts are hard put to handle their current dockets and judicial budgets are strained, proceedings should be reopened only in the rare instance when justice so demands. Consequently, Statefunded postconviction DNA testing should be granted only when there is a strong probability that the results that can be anticipated from DNA testing would have changed the prior verdict.
Furthermore, even aside from concerns of efficiency and economy, closure is essential for victims and their families, for witnesses, and for judicial officers and prosecutors. Finality is a fundamental value that can properly be ignored only in the extraordinary case. Fortunately, DNA analysis now provides us with the ability to do justice in the exceptional situation. (Bolding mine)
As to the accuracy point I mentioned above, there is no reason to believe private defence-centric experts are somehow paragons of independence and virtue compared with the evil minions of the state. My experience is to the contrary, and I have dealt with re-opening cases at a high level. The experts hired by the defence are often (but not always) cranks (albeit cranks with impressive paper qualifications), partisan advocates for whoever will pay them, or True Believers who think everyone is a nice guy and the polite chap they met in prison couldn’t possibly have killed someone so they will do their best to help.
It is also optimistic of you to think of DNA testing as “exact, precise and not subjective”. This is an illusion promoted by CSI type shows. It is true that it is much better than anything which has gone before, and it is also true that scientists are constantly working on ways to reduce the subjectivity. But there are all sorts of points where questions of interpretation emerge. For example, at what point does one determine that a peak height is a genuine allele and not background noise? One almost never gets perfectly clean results from field samples. And mixtures can be very difficult to interpret. Real DNA fights tend to be about those sorts of questions.
Given the exceptional nature of the remedy of retesting, and the requirement that there be a strong probability that the results will change the prior verdict, it is not surprising that DAs often (but not always) resist retesting.
Finally your last paragraph tends to contradict the first. If there is little hope for reliable forensic evidence (a conclusion that is something of a stretch, given that it is based on one anecdote), what reason is there to rely on DNA evidence as a corrective?
But once again the argument against testing comes down to
Money
Time
Thus you have to ask yourself, how much money is too much to prevent one man from giving his one single time on Earth up. Time and lack of facilities is a weak excuse 'cause you can always hire people and train more. The more competition the lower the price will be eventually.
So once again, it’s the same old story, those with money can get the tests done, if not by the government then by paying for it themselves.
Finality is not just “money and time”. And thinking money and time are irrelevant considerations when too ready a willingness to grant re-testing will result, as a mathematical consequence of the exponential growth in retesting, of the choking of the capacity to test no matter how much money and time are spent, is sloganeering, not thinking. The idea that we can just employ more people is flawed - forensic DNA specialists are a scarce resource. There are relatively few people with the necessary aptitude, attitude and interest in doing it. Contrary to TV depictions, it is not sexy work, and it is very challenging.
The point that merely throwing money at the problem won’t help is amplified when too ready a willingness to retest results in the system being swamped by people with nothing better to do, nothing to lose and no real prospect of changing the result thereby blocking out the signal for genuine cases, making things worse for the genuinely innocent.
Of course no-one should spend a day in prison if they are innocent, let alone be put to death (and I am an opponent of the death penalty in any event).
Wrongful convictions are an evil, but they are a complicated problem. Thinking “just retest” is a solution is an example of the famous saying that for every complex problem there is a simple solution. And it’s wrong.
Arguments about specific topics that just default to knee-jerk cynical generalities about the privileges of wealth are unhelpful at the best of times, let alone in the present case. Do you really think that the people central to the operation of the system are not acutely alert to issues of inequity of access?
But in your example, how would such DNA evidence lead to exoneration of the convicted murderer?
All it shows is that someone else was at the scene, at some time. That doesn’t prove much. There have been many guests in my home over the years, and no doubt a CSI specialist could obtain many DNA samples from the house. And many of them would be from some unknown/unremembered person.
This ‘fact’ would certainly not overturn the evidence that convinced a jury of 12 peers to convict this person of murder. So why should we waste a lot of our tax money on DNA tests of irrelevant samples? And also overload the labs, so that test that might be important in current unsolved crimes are backlogged?
Thank you for the thoughtful answers. I would like to keep this thread in GQ if possible, but I appreciate the complicated and sensitive nature of the subject matter. I wanted to respond to t-bonham’s questions first, so that the thread doesn’t get derailed.
I respect the judicial system. There have been instances of wrongful convictions, though, so I believe it’s reasonable to ask questions about the circumstances under which re-testing of DNA evidence is warranted.
I am a layperson, but based on my understanding, I disagree with your assertion that DNA testing could never provide any relevant evidence regarding what happened during the actual murder. It is my understanding that DNA evidence isn’t binary, rather there is variability in the quality and/or quantity of DNA evidence, and the specifics of a particular case would determine how much weight the DNA evidence should reasonably be given in relation to the totality of the evidence available in the case. Certain features of the DNA evidence might suggest that it is consistent with a scenario in which the unidentified person was in fact present at the time the murder was committed. For example, if the unidentified DNA is found at several different locations near the dead body and/or is mixed with the victim’s DNA, it is reasonable to accord more weight to that evidence, as opposed to a different scenario in which the unidentified DNA is found at a single location far away from the dead body.
Your question about whether/when taxpayer dollars should be spent to re-examine evidence is an important one. I need to spend some more time looking at the information Noel Prosequi has provided, including the linked criteria, before I weigh in on the issue. In addition, I’d like to look at the timeline of improvements in DNA testing, which might include increased sensitivity in detecting small amounts of DNA, and better methods for typing or identifying the DNA (e.g., RFLPs or SNPs versus high-throughput sequencing). I’ll come back after I’ve had a chance to read and think about the issues more.
Setting aside the issue of costs, which I’ll come back to later, I have a better answer to t-bonham’s question of how DNA evidence would lead to the exoneration of a murderer. I looked at eight of the case studies on the Innocence Project website. In each of the eight cases, an individual was exonerated by DNA evidence many years after being wrongly convicted of murder that did not include a concurrent rape or sexual assault.
In these cases, the crime took place between 1980 and 1997, and in each case conviction followed about a year after the crime. DNA testing was not done at the time of the original trial. The post-conviction DNA testing was performed between 2002-2008, on samples/items tightly linked to the actual crime, e.g., blood or hair evidence that had been used to convict the defendant, fingernail scrapings from the victim’s body, blood or saliva on the victim’s clothing, or items left behind at the crime scene – gun, knife, mask, glove (seriously), towel, hat, shirt. In several cases, witnesses saw the perpetrator getting rid of these items before fleeing the scene.
In four of the cases, the DNA analysis demonstrated that blood or hair evidence used to convict the defendant, via older forensic techniques such as A/B/O blood typing or hair “match” analysis, did not in fact belong to the person who was convicted. In a fifth case, the DNA evidence led the District Attorney to re-analyze a fingerprint previously deemed a “match” to the defendant; the fingerprint was shown not to match when analyzed by current technology. In one case, a forensic method used in the original trial (dog scent “matching”) was later deemed unreliable by the court. In other cases, there were recanted or incorrect eyewitness identifications, among other problems demonstrated in the original trials.
In 3 of the 8 cases, the post-conviction DNA analysis lead to the positive identification of the actual murderer, who confessed in two cases and committed suicide in the other.
I realize that eight cases is a really small number. Showing positive results in eight cases doesn’t say anything about the economic or overall policy issues. However, I thought the cases were useful at least to show how DNA evidence can be useful in overturning a wrongful murder conviction.
Thank you for the long and in-depth answer. Without minimizing the explantion, it still boils down to “we don’t want to admit we were wrong” and “it costs money”.
Really, it’s a judgement call. How important was the (now) DNA testable evidence in the overall conviction?
The point that bothered me about an article on a State DA seeking an order preventing DNA re-testing was that it did not seem to be (like your explanation) a reasoned argument against wholesale testing, but rather a blanket prohibition on all retesting. Like most bureaucratic procedures, what starts off with the best of intentions - don’t bog down the system with the frivolous - converts into an exercise in avoiding serious re-examination of past performance quality.
If the state’s case as so tenuous that a difference in DNA would erase it, then one has to wonder how reliable the evidence was that convicted the person. In the hair case I mention above, a neighbour heard a noise down the hall, went to investigate, and then called police. The only specific tie other than place and time was alleged body hair found on the victim that “matched” his. So that was the key evidence to convict him. no indication the two even knew each other or other ties; no proof he had a grude or stalked her or whatever; no dripping weapon in his hand…
So I agree - unless the evidence is key and likely to result in a reversal -why test? Also, yes, results can be difficult to interpret - but usually DNA is pretty definitive one way or another, unless your brother did it. Also, each test consumes some of the evidence, and if you allow private testing, the lab still needs to be certified to carry out forensic-quality testing. (Plus the whole chain-of-custody issue).
So the issue is not as simple as it should be, for good reason.
So back to the original question - what is the process for petitioning for a new trial or re-opening when new evidence is found? What criteria are used to determine if a new trial will be held? After all, if a new witness is found or a key wintness claims later to have lied, it is possible to appeal for a re-opening. Why should DNA be different?
And you’ll over and over again on TV the bad cop show or CSI episodes about “if we admit this cop is crooked / this lab is unreliable then all previous cases are in jepaordy” - so obviously the finality argument is obviously not as final as you make it out to be.
I’m sure when the issue of compensation is included, there’s an added motive for prosecutors to try to stifle claims of wrongful conviction.
That’s not the first time such a mistake has been made. I remember hearing about a British police officer who was wrongfully convicted of a crime because fingerprints were misidentified as his. The mistake only came to light because the real criminal eventually confessed. That’s the scary part: how many cases have there been where the real criminal didn’t confess?
A Florida state DA stated that he didn’t care if he received absolute proof that the condemned was innocent; it was his job to see him executed. This was in a particularly blatant case. As long as the rules were followed, actual guilt or innocence mattered not all.
It would seem that md2000 and I are in furious agreement after all.
On the issue of the propriety of prosecutors, in my jurisdiction, judges and prosecutors are not elected, and accordingly I cannot imagine anyone ever saying anything as facile as “It’s my job to get them executed, innocent or not”, assuming that the DA in question was correctly quoted and in context. Thus it may be that on the issue of prosecutor resistance to retesting, we are working from different data sets.
Of course there are cases where DNA can prove innocence. Without wishing to speak for t-bonham, I think the point being made was that in the initial example given, DNA evidence might be expected to be inconclusive. But it is quite easy to imagine cases where it is as definitive as anything in this world of tears ever is.
I recall a case where a girl said she was raped by the accused. No DNA foreign to her was found in her underpants or such bed-linen as was tested, so that evidence went to the jury as neutral, and the jury was left with her indication that the offender was the person she named (whom she knew well and could not be honestly mistaken about). There was no reason to think anyone else had ever been involved with her sexually. After the conviction, and at the insistence of the defence, other parts of the bed linen were tested, and male DNA belonging to someone else entirely came up. In context, that meant that the accused was not guilty and the prosecution agreed with his release and acquittal.
The point is well made that this issue can be expected to die down in coming years. Most of the high profile innocence cases involve matters where someone was convicted before the advent of DNA evidence, and the possibility now exists to confirm or disconfirm that evidence. As time passes the number of cases in that mould will diminish, and DNA will have been part of the evidence base from the outset. There will be very few cases where a repeat DNA test (even with tweaked technology) will provide the thunderclap of innocence, although the example I gave above is one.
As to the detail of the procedure for re-opening, I imagine that in the US, it will vary on a state-by-state basis. Since I do not come from there, the procedure in my jurisdiction is unlikely to be helpful.
Noel Prosequi - Your point about the thunderclap of innocence in the rape case you detailed is well taken.
In the few (US) case studies that I have looked at, it appears that in addition to post-conviction DNA testing, the appeal process may also include other new evidence (e.g., evidence that a trial witness has recanted testimony, or evidence that a forensic technique used at trial has since been shown to be unreliable, or evidence that the prosecution withheld some exculpatory evidence, etc).
I understand that you are not in the US, but I am wondering whether it would be typical according to your country/local procedure for the new DNA evidence to be the sole issue comprising the appeal?
Sidney, it seems like you’ve done a fair bit of research about this stuff already, so I apologize if I’m retreading old ground for you. District Attorney’s Office v. Osborne is a case that presents a barrier to DNA access post-conviction in a scenario like the one you’ve described. The court found that a convict has no constitutional right to have DNA evidence considered by the court, even if there’s reason to believe that the DNA evidence might establish the convict’s innocence.
I won’t bother anybody with opinions, but as has been discussed already, there are several cost and efficiency-type reasons for the court to take this position, and there’s also the broader philosophical point that says that these kinds of issues are for the states to handle and shouldn’t be made into federal issues without good reason. Most states, as you probably know, already have legislation in place setting up the parameters for DNA access after a conviction, and that legislation is what determines a convict’s access in the US. I’m in Pennsylvania, where a convict does have statutory access to testing. In order to get a motion for testing, he or she has to meet the following requirements:
Sorry for the format there. I separated out that last part because it most directly answers your question, I think. Basically you have to demonstrate that the DNA evidence you’re trying to get access to, if you get the result you want, has a reasonable chance to exculpate you to some real extent.
I hope that helps. I’d be happy to try to answer any other questions if I can.
