I agree with the point you are making. However, we don’t have all of the evidence that the prosecution considered in reaching its decision in this case. It’s my understanding that in some cases in the US, at least, the conviction is not vacated despite the identification of potentially exculpatory DNA evidence.
True. I would really really want to see how the defence would explain away the victim’s identification. That’s a massive obstacle. If someone is determined to railroad you and convincing, there’s a limit to what you can do.
OTOH, if the victim claimed (under oath?) that she was alone, that nobody else had been near her or her bed, and evidence was found that she lied - that would sow doubt in the jury’s minds. Plus, maybe on principle acquit the guy under the discovered evidence. What, “we didn’t check the rest of the sheet…???” That sounds suspiciously like the Duke Lacrosse team case, “we won’t mention that we found semen because it doesn’t belong to the suspects so I don’t think it’s important”! All facts are relevant. It’s up to the jury to sort them out.
This isn’t a rant about “she slept with someone else, so he must be innocent”. the question is why the evidence was important. Did she claim nobody else had been near her? If so, she lies. Was her full story questionable? Without the full facts, we can only speculate; and note that someone(s) who heard the full facts found the person not guilty on second go-round.
Thanks very much for taking the time to respond. The information is definitely helpful. I do have a couple of questions. I understand that the answers to my questions would probably vary depending on what US state law applies. I’m not asking for legal advice - these questions are based on reading I’ve done about multiple cases rather than on a specific case.
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Can you make any generalizations about whether an appeal based on post-conviction DNA testing is typically based on the DNA alone, or whether there are typically multiple factors at issue in the appeal? I understand that these cases are very fact-specific, so it may be hard to generalize. The small number of cases I looked at on the Innocence Project website, though, seemed to suggest that in those exonerations, the defense was able to present new evidence to prove or at least cast doubt that multiple aspects of the original trial were flawed, in addition to providing the new DNA evidence.
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In Pennsylvania, does the judge from the original trial hear the motion for access to post-conviction DNA testing? I thought that could be the case because the convict is seeking access to physical materials that were at issue in the original trial. Then again it might not be the same judge, as it is an appeal (?)
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In a case where the results of post-conviction DNA testing do not prove actual innocence to a certainty on its own, but the DNA evidence might be a factor that a jury would consider as important with respect to reasonable doubt, if the prosecutor does not agree to vacate the conviction, what happens next procedurally?
I read an article in which the author asserted this may not be the case. His reasoning is that of the 211 post-conviction DNA exonerations in the US from 1989 through the end of 2007, more than one-fourth, fifty-five individuals, were convicted even though DNA testing was available at the time of their trials. He classified the 55 cases into categories, although there was some overlap in the categories: DNA technology had advanced beyond that available at the time of trial; DNA evidence available at time of trial was never tested; forensic evidence was concealed or misrepresented; trial counsel failed to request DNA testing; court denied DNA testing request. Garrett. DNA fingerprinting technology continues to improve (I saw a reference to something called Y- STR testing becoming available in 2003, which permits testing on the Y chromosome, but I don’t know if this method has really made a difference in any particular case yet). So is this issue really going to go away?
I thought of one more question, if you have time. When a defendant makes a motion requesting post-conviction DNA testing, does the state invest substantial resources in presenting evidence or arguments to contest the motion? Or are such hearings a matter of the court deciding based on the prior record or other factors? I am trying to understand how much of the cost to the state is based on the cost of forensic testing, and how much is based on manpower and resources in responding to motions. In some cases the defendant will pay for the forensic testing (or a public interest group pays or gets access to pro bono testing). If the defendant pays for testing, are there still substantial costs to the state?
I would frame it as why would the prosecution agree to drop their case based on solely this evidence, if that is in fact what happened. It’s an obvious point to make, and you’ve suggested as much yourself, but I wanted make it more explicit that there are other possible scenarios beyond the DNA evidence indicating that the victim was lying.
Any post-conviction DNA testing regime will depend on state law. As an example, here’s Illinois’ statute:
[SPOILER](725 ILCS 5/116‑3)
Sec. 116‑3. Motion for fingerprint, Integrated Ballistic Identification System, or forensic testing not available at trial regarding actual innocence.
(a) A defendant may make a motion before the trial court that entered the judgment of conviction in his or her case for the performance of fingerprint, Integrated Ballistic Identification System, or forensic DNA testing, including comparison analysis of genetic marker groupings of the evidence collected by criminal justice agencies pursuant to the alleged offense, to those of the defendant, to those of other forensic evidence, and to those maintained under subsection (f) of Section 5‑4‑3 of the Unified Code of Corrections, on evidence that was secured in relation to the trial which resulted in his or her conviction, and:
(1) was not subject to the testing which is now
requested at the time of trial; or
(2) although previously subjected to testing, can be
subjected to additional testing utilizing a method that was not scientifically available at the time of trial that provides a reasonable likelihood of more probative results. Reasonable notice of the motion shall be served upon the State.
(b) The defendant must present a prima facie case that:
(1) identity was the issue in the trial which
resulted in his or her conviction; and
(2) the evidence to be tested has been subject to a
chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.
© The trial court shall allow the testing under reasonable conditions designed to protect the State’s interests in the integrity of the evidence and the testing process upon a determination that:
(1) the result of the testing has the scientific
potential to produce new, noncumulative evidence materially relevant to the defendant’s assertion of actual innocence even though the results may not completely exonerate the defendant;
(2) the testing requested employs a scientific method
generally accepted within the relevant scientific community.
(d) If evidence previously tested pursuant to this Section reveals an unknown fingerprint from the crime scene that does not match the defendant or the victim, the order of the Court shall direct the prosecuting authority to request the Illinois State Police Bureau of Forensic Science to submit the unknown fingerprint evidence into the FBI’s Integrated Automated Fingerprint Identification System (AIFIS) for identification.
(Source: P.A. 95‑688, eff. 10‑23‑07.)[/SPOILER]
Key features:
-Must be new evidence or previously tested evidence subject to better testing method.
-Defendant must show that identity was the issue in the trial that resulted in his conviction.
-Judge must serve a gatekeeper role by determining if the evidence will produce new, noncumulative evidence that supports defendant’s assertion of innocence (even if it doesn’t totally exonerate him) and the testing utilizes generally accepted scientific methods.
Generally, I’m inclined to say that when a convict applies for post-conviction DNA relief, it’s because new or more advanced DNA testing has become available, and the other defenses have more or less been exhausted at that point. In other words, even though there may have been problems with witness identification, confessions, or what have you, those issues should have been disposed with at trial and with prior appeals, and they can’t be raised again without something new coming to light. If it’s already been raised, it’s out, so by the time you’re moving to get DNA relief, that might be all you’ve got left. Of course, if we’re assuming a wrongful conviction, those earlier defects will become very clear when exculpatory DNA evidence is revealed, and will maybe informally come up to explain why the DNA evidence is merited at all, but as far as affecting the actual outcome, I’d say yeah, generally, it would just be the DNA evidence.
One reason that I think that to be the case is that post-conviction relief statutes are pretty strict about what can and can not be raised: prosecutorial misconduct, coercion, obstruction, some other constitutional violation, no jurisdiction, and that kind of thing is mostly what they’re looking for. And one of the available avenues is the availability of new evidence, thus the DNA option. So without the facts and generally speaking, it seems to me like if your man is rotting away in jail and one of those issues still hasn’t been litigated at the time the DNA becomes an option, somebody screwed up. Which isn’t to say it never happens.
Yeah, technically it is not an appeal. It gets filed in the court where the conviction took place. Here’s Indiana’s rules for the procedure. I picked Indiana because it’s freely available and was the first google result, and decidedly not because I know anything at all about Indiana.
Great question. The judge orders whatever relief is most appropriate under the circumstances, including a possible retrial.
In many cases, of course, it’s the DA’s office which is responsible for discovering the evidence and petitioning for relief in the first place. I’ve never been accused of excessive sanguinity toward the motives of the state, but I feel obligated to point out that it isn’t always standing in the way in such cases. When the state does contest an action like this, though, I’d call it something like an even split between concerns over efficiency and waste, and just somebody somewhere being a dick.
The costs involved, from a government perspective, are a problem of a little here, a little there. Efficiency is rightly a huge goal of criminal procedure (eliminating “unjustifiable expense and delay”), so the manpower and time invested in these things is the key cost, I’d say. It would be quite a hassle to be forced to spend time every day pointing out that 20 jailhouse requests for DNA testing need not be granted because the convicts were on video or were caught by the police leaving the scene or whatever.
DNA testing has improved, and almost certainly will continue to do so, and as long as more advanced technology becomes available post-conviction, the issue will exist. So go away, no. Still, I think it’s fair to say that here in the intermediate stages where some defendants were convicted with no DNA evidence available at all and the technology is rapidly becoming commonplace, it’s a bigger issue than it will be when every beat cop has an iPhone/tricorder in his pocket that can capture DNA evidence at the press of a button.
t-bonham@scc.net said:
Sidney Evgeni Jordan said:
That was not t-bonham’s assertion. t-bonham was responding to the specific situation that you presented, that no physical evidence connected the accused to the crime scene, and subsequent to the conviction, something was DNA tested and did not match the accused. Certainly other situations exist where the DNA test could clear the conviction. But in this situation, there had to have been some other evidence that linked the accused to the crime even though there wasn’t physical evidence. You’re asking to overturn that other evidence because something from the crime scene proves someone else was there at some point prior to the crime.
I guess it depends upon what the DNA came from. If it’s fingernail scrapings from the victim or a blood stain or epithelials on the murder weapon, that is one thing. If it’s a stray smear of snot on rag in the wastebin?
Johnny Cochrane: “Ladies and gentlemen of the jury, if the snot isn’t green, my client is clean.”
All you’ve shown is someone blew their nose at some time prior to the crime. How do you connect that to the perpetrator?
True enough, it is going to depend upon the specifics. Epithelials (skin cells) on a murder weapon springs to my mind because prior to DNA I’m not sure there was much cause to look for it, but after DNA testing became common, it is something to strongly attach to the perpetrator. That strikes me as something that meets the original condition (evidence present that wasn’t available due to technology and that wouldn’t connect the accused at the time of trial but could be strongly indicative of the perpetrator’s identity).
Bolding mine. You are correct. I think I already addressed this point in some detail, though, in the post you quoted from and the post following it. Later on in the thread I also asked
And **Jimmy Chitwood **replied
If you think I was not polite enough in responding to t-bonham’s post, that’s fine. But please don’t cherrypick sentences out of my posts without reading the whole thread.
Thanks again for the detailed answers.
I had to google tricorder. I guess I’ll have to get an iPhone instead. 
My pleasure.
I googled, too. I knew there was a thing but it wasn’t a phaser. I figured I was playing the right side of the odds in terms of which literary reference to use on this board.
Sole issue? The answer (and it is a typical lawyer’s answer) is - it depends. To what extent was there much other evidence outside DNA in the case originally? Evidence of opportunity, motive, lies by the accused as to his whearabouts, etc which will typically accompany DNA evidence but which might not by itself make a case don’t really need to be attacked if new DNA evidence shows that they got the wrong guy.
On the other hand, if DNA evidence now contrasts with other direct evidence implicating the accused (like evidence of an eyewitness identification) the defence will want to have as many strings to its bow as it can, so they are likely to re-interview the identification witness, show him the DNA result, and see if they can get him to acknowledge the possibility of error or have him water down his evidence in some way.
On the third hand, suppose a case against a man accused of raping a prostitute ran this way - accused is questioned by the police and denies it was him. They show him evidence (such as they had at the time) and he then admits it was him and now claims it was consensual. A vaginal swab taken from the complainant was not able to be tested for DNA at the time, but now is, and DNA evidence apparently not his is found. That DNA then has a lot of work to do.
The complainant might have had consensual sex with someone else unknown at an earlier time. The accused might not have ejaculated (this is not uncommon), or his DNA might have been “swamped” by that of the earlier man. (There are plenty of scenarios where this could happen.)
In such a case, the accused is probably going to have to do better than merely produce a new DNA result, because the issue at trial was lack of consent.
For this reason, I would say that the cases where DNA is even considered self-select for those where new DNA would actually work to exclude the accused from guilt. There are plenty of cases where a finding of the presence or absence of DNA on an item belonging to an accused or not belonging to an accused won’t take things anywhere. A little girl says she was beaten by Dad with Dad’s belt. Test the belt for DNA, and given that the girl lives with Dad, the finding of the girl’s DNA on the belt, or by contrast not finding it is no particular surprise. And finding Dad’s DNA is not surprise either. So where does it take anyone?
In those cases where DNA can in principle actually demonstrate innocence, DNA evidence is likely by itself to overcome the relatively weaker eyewitness identification evidence. DNA evidence can, beyond reasonable doubt, overcome an accused’s assertion that he was not there. Thus it can in many cases overcome, to a much lower standard, assertions by witnesses that he was. But the accused is only going to get one shot at this, and so may well throw other bibs and bobs into the mix.
In short, cases are too varied to generalise about this. There is no doubt a statistical answer, but that answer will hide the variability among cases.
I summarised the case I wrote about by using the expression “in context”. It was in 2001. I just re-read the court of appeal decision and it doesn’t set out the detail of why the DNA exonerated him because the prosecution agreed, so there is no point posting it, nor do I have ready access to the source material any more. Suffice to say it came down to the detail of the complainant’s account. If I recall (and my memory is imperfect) there was evidence about the sheets being newly washed, evidence of no other sexual partners and evidence that no-one else but the complainant used the bed. I can’t recall if there was also a motive on the part of the complainant later found to falsely exonerate the person whose DNA was eventually found.
DNA has vastly improved even since 1989. I haven’t read the article, but bear in mind that the availability of DNA testing does not mean it was done (witness the case I mentioned above). Bear in mind also that the vast majority of the cases he cited (ie the balance of the 211 minus the 55) seem to have been in the category where DNA was not available. If they go away, that is a dramatic reduction in numbers.
The polymerase chain reaction technique was not invented till 1983, and was not really commercialised until some years later - my memory is that the hla DQ-alpha tests became available in the early 90s. That test had relatively low discriminating power, and relied on a method of measurement which involved comparing by eye the intensity of blots on a piece of paper. And this was only one locus. Later techniques (used as late as the late 90s) involved again eyeball reading of electrophoresis gels, with increasing but still relatively low discrimination power (in the hundreds of thousands to millions).
Now, most jurisdictions test at 16 loci, with discrimination power well into the tens or hundreds of billions at the least (I have seen cases where 10^21 turned up even using less than 16). The allele strengths are measured objectively by fluorescent tags or similar systems, and the handling of samples is becoming increasingly automated to reduce human clerical error. And aside from improvements in the process once the DNA is obtained, much of the improvement is coming from improved techniques to get marginal stains to produce results, so that stains too weak to give reportable results even using a 16-plex system might well be treated sufficiently to give reportable results in that system in due course.
But there is limit to this. New technology like this tends to improve rapidly following its invention but stabilise in time. The rate of improvement slows down.
While we can continue to expect improvements, I think it is fair to say that even on the figures you have cited, the vast bulk of the issue will go away. Of course it will never disappear entirely. There will always be cases of dishonest or lazy technicians (as has occurred) or tests of the wrong thing (as occurred in the case I mentioned). I cannot quantify my sense of these things, but a very radical reduction indeed in cases successfully demonstrating innocence after retesting coming before the courts is my very strong expectation.
I’m surprised nobody has brought this issue up.
Most of the Innocence Projects are located at law schools, but Northwestern University’s Medill School of Journalism, always recognized as one of the best J-schools in the country, is also one of them. And this issue http://archives.chicagotribune.com/2009/oct/19/health/chi-nu-subpoena-19-oct19 demonstrates that some prosecutors are not taking things calmly. Clearly the Cook County prosecutors are more interested in demeaning the Innocence Project than the pursuit of justice.
'Nuff said about prosecutors, time, and resources, in my view.
In the early 1990’s Paul Bernardo and his girlfriend kidnapped raped and murdered 2 girls near Toronto. They were a fairly horrific crimes, the girls were videotaped during the sexual assaults and the police failed to find the tapes; the defence retreived them after the police search and they didn’t appear until not long before the trial…
During the trial it emerged that Bernardo was one of several dozen suspects who was asked to give DNA evidence for the Scarborough Rapist case. That DNA then sat on a shelf for a year or more (hopefully a refrigerator shelf?) since the lab was so backed up with samples to test. This meant that if things had gone better, he would have been arrested instead of killing people.
The point being, just because DNA testing was possible in the early 1990’s does not mean it was the easy, cheap assembly-line process we have today. IIRC, a normal test took 6 weeks or more. Even cases that could have been DNA tested possibly weren’t, if the other evidence was deemed sufficient for a conviction. I would also bet there were not many private labs capable of doing legal-quality DNA testing and not many defendants who could afford that test anyway.
So “available” does not mean it got done. However, yes, as time goes on, the retesting emands will be less.
After all, so what if there are more precise test methods? the odds of matching two random people are astronomical; if the DNA test said the person was 99.999% match, what will closer examination of the Y-chromosome tell you? “It’s the other identical twin?” or “He’s had exposure to radiation since the crime”?
More likely the argument is poor test procedures or mixups at the lab, or evidence tampering; in which case the independent testing capability has been there and affordable for years. If so, I imagine this does not qualify as “new evidence” if the test should have been done by the defence at the time?
I assume the argument for current reopening of cases is “this evidence could NOT have been presented at the time” since the technology wasn’t available; or “only the prosecution could have arranged for this testing, and they failed to do so” since cost and facilities were not available to the defence?
These scenarios make a lot of sense even though it’s not really possible to generalize. Thank you for the detailed answers, and for taking the time to look up the rationale in the rape case.
The main thing I can think of for the Y chromosome testing is that in a rape case, it would in theory allow you to exclude any signal from the woman’s DNA, in cases where a mixture might be hard to analyze. That’s pure speculation, though.
DNA testing is routine now, so I am guessing that it is done in all or nearly all rape cases in the US, as it can exclude as well as include suspects as part of an investigation. I do wonder how routinely it is used today in murder cases in which the identity of the perpetrator is at issue. For example, I wonder if DNA testing is routine in murder cases where the facts are such that DNA would not be exculpatory on its own, but might be a factor that a jury might consider relevant in determining reasonable doubt. I am curious if there is a due process type argument that DNA testing should be done.
Missed the edit window. To clarify, in my second paragraph above I was speculating about the extent to which DNA testing is used today in the original trial, not post-conviction DNA testing.