cold case lessons for post-conviction dna professor jules epstein nij 2009

Cold Case Lessons for Cold Case Lessons for

Post-Conviction DNAPost-Conviction DNA

Professor Jules EpsteinProfessor Jules Epstein

NIJ 2009NIJ 2009

Lesson I: Corroborative Lesson I: Corroborative Evidence Evidence Isn’tIsn’t The Test The Test

Exonerations Exonerations have:have:

ConfessionsConfessions ForensicsForensics EyewitnessesEyewitnesses InformantsInformants

Lesson I: Decisional LawLesson I: Decisional Law

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

HolmesHolmes (trial standard) (trial standard)


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


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

Lesson I: ScienceLesson I: Science

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

Lesson I: Investigation Lesson I: Investigation ErrorsErrors

Lesson I: Investigation Lesson I: Investigation ErrorsErrors

Tunnel Vision has afflicted both Tunnel Vision has afflicted both prosecution/police prosecution/police andand defense defense investigations.investigations.

THE MULTIPLE DIMENSIONS OF THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN CRIMINAL CASES, TUNNEL VISION IN CRIMINAL CASES, 2006 Wis. L. Rev. 291 , 2006 Wis. L. Rev. 291 ,

Keep InvestigatingKeep Investigating

In 12 DNA exoneration In 12 DNA exoneration cases, defendants were cases, defendants were convicted when DNA convicted when DNA evidence evidence at trialat trial made made clear it was not the clear it was not the accused.accused.

The facts fit The facts fit somesome theory. theory.

Keep InvestigatingKeep Investigating

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

Lesson II: ConstitutionalityLesson II: ConstitutionalityIsn’tIsn’t The Test The Test

Concerns Regarding Concerns Regarding Suppression Law - ISuppression Law - I

Of the first 200 DNA Of the first 200 DNA exonerations, 158 exonerations, 158 involved eyewitness involved eyewitness testimonytestimony

29 raised “suggestive ID” 29 raised “suggestive ID” claimsclaims

None received reliefNone received relief

Concerns RegardingConcerns RegardingSuppression Law - IISuppression Law - II

Of the first 200 DNA Of the first 200 DNA exonerations, 20 involved exonerations, 20 involved confessionsconfessions

10 cases challenged 10 cases challenged constitutionalityconstitutionality

13 cases challenged 13 cases challenged somesome aspect of confessionaspect of confession

None prevailedNone prevailed

Lesson III: Criminal PastLesson III: Criminal PastIsn’tIsn’t The Test The Test

Exonerees Had a “Past”Exonerees Had a “Past”

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

The “Disconnect”The “Disconnect”

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

The “Disconnect”The “Disconnect”

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

DisconnectDisconnect It is inconsistent to allow It is inconsistent to allow

defendants who pleaded defendants who pleaded guilty to use post-conviction guilty to use post-conviction proceedings…in light of proceedings…in light of alleged new evidence…alleged new evidence…

DisconnectDisconnect

Both his confession and his new Both his confession and his new claims cannot be true. A claims cannot be true. A defendant knows at the time of defendant knows at the time of his plea whether he is guilty…his plea whether he is guilty…[and with the guilty plea] waives [and with the guilty plea] waives the right to present evidence the right to present evidence regarding guilt or innocence.regarding guilt or innocence.

Indiana, Indiana, 2008 (2008 (notnot a DNA case). a DNA case).


November, 2008:November, 2008:

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


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

So, What’s A Reasonable So, What’s A Reasonable Test?Test?

Ignore other evidence; ask Ignore other evidence; ask about the potential of the about the potential of the DNA?DNA?

Remember – the decision to Remember – the decision to agree to test is not the same agree to test is not the same as the decision of what to do as the decision of what to do with test results.with test results.

What’s ReasonableWhat’s Reasonable

Consider the converse: DNA Consider the converse: DNA is sufficient to convict, even is sufficient to convict, even with bad description and no with bad description and no ID. ID. People v. SotoPeople v. Soto, 981 P.2d 958 , 981 P.2d 958 (Cal. 1999)(Cal. 1999)

Is this “innocence” or Is this “innocence” or “PBRD?”“PBRD?”

Collateral Lessons - ICollateral Lessons - I

Familial DNA and Darryl HuntFamilial DNA and Darryl Hunt If it’s good enough for If it’s good enough for

exonerations, isn’t it good exonerations, isn’t it good enough for investigations?enough for investigations?

Is this a database expansion Is this a database expansion issue?issue?

Collateral Lessons - IICollateral Lessons - II Statutes of Statutes of

Limitations for Limitations for Prosecutions:Prosecutions:

EliminateEliminate ExpandExpand Toll (John Doe)Toll (John Doe) Defense: Due Defense: Due

Process (loss of Process (loss of witnesses)witnesses)

Statutes of Statutes of Limitations for Limitations for Post-Conviction Post-Conviction DNA:DNA:

Strict (5 states Strict (5 states have a 1-3 year have a 1-3 year post-conviction post-conviction limit)limit)

Prosecution: Loss Prosecution: Loss of witnesses?of witnesses?

Collateral Issues - IIICollateral Issues - III Defense Access to CODISDefense Access to CODIS Jeffrey Deskovic (database checked Jeffrey Deskovic (database checked

16 years later)16 years later) QueryQuery: Is this a right under : Is this a right under Brady Brady

v. Marylandv. Maryland? Is the federal ? Is the federal database part of the local/state database part of the local/state prosecutorial ‘team?’ prosecutorial ‘team?’ Kyles v. Kyles v. WhitleyWhitley..

2 states allow 2 states allow post-convictionpost-conviction access to NDISaccess to NDIS

Collateral Issues - IVCollateral Issues - IV

Should we have statutes for Should we have statutes for other types of post-conviction other types of post-conviction testing?testing?

Six states and Washington, Six states and Washington, D.C. do.D.C. do.

Reliability, Not Reliability, Not AdversarinessAdversariness

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

ReferencesReferences

THE MULTIPLE DIMENSIONS OF THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN CRIMINAL CASES, TUNNEL VISION IN CRIMINAL CASES, 2006 Wis. L. Rev. 2912006 Wis. L. Rev. 291

John Blume, The Dilemma of the John Blume, The Dilemma of the Criminal Defendant With a Prior Record Criminal Defendant With a Prior Record - Lessons from the Wrongfully - Lessons from the Wrongfully Convicted (2008)Convicted (2008)

Brandon Garrett, Claiming Innocence, Brandon Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629 (June, 2008)92 Minn. L. Rev. 1629 (June, 2008)

ReferencesReferences Brandon L. Garrett, Judging Brandon L. Garrett, Judging

Innocence, 108 Colum. L. Rev. 55 Innocence, 108 Colum. L. Rev. 55 (2008) (2008)

Risinger, INNOCENTS Risinger, INNOCENTS CONVICTED: AN EMPIRICALLY CONVICTED: AN EMPIRICALLY JUSTIFIED FACTUAL WRONGFUL JUSTIFIED FACTUAL WRONGFUL CONVICTION RATE, 97 J. Crim. L. CONVICTION RATE, 97 J. Crim. L. & Criminology 761 (Spring, 2007)& Criminology 761 (Spring, 2007)


Epstein, “Genetic Epstein, “Genetic Surveillance” - The Surveillance” - The Bogeyman Response to Bogeyman Response to Familial DNA Investigations Familial DNA Investigations (forthcoming, Journal of Law, (forthcoming, Journal of Law, Technology and Policy)Technology and Policy)

Samuel Gross, Convicting the Samuel Gross, Convicting the Innocent, Innocent, Annu. Rev. Law Soc. Sci. 2008. 4:173–92.


House v. Bell, 126 S. Ct. 2064 House v. Bell, 126 S. Ct. 2064 (U.S. 2006) (U.S. 2006)

United States v. Risha, 445 United States v. Risha, 445 F.3d 298 (3F.3d 298 (3rdrd Cir. 2006) Cir. 2006)

cold case lessons for post-conviction dna professor jules epstein nij 2009

Documents