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Cold Case Lessons for Post-Conviction DNA. Professor Jules Epstein NIJ 2009. Exonerations have: Confessions Forensics Eyewitnesses Informants. Lesson I: Corroborative Evidence Isn’t The Test. Lesson I: Decisional Law.

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cold case lessons for post conviction dna

Cold Case Lessons for Post-Conviction DNA

Professor Jules Epstein

NIJ 2009

lesson i decisional law
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)
lesson i decisional law1
Lesson I: Decisional Law
  • [T]he 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)
lesson i decisional law2
Lesson I: Decisional Law
  • [T]he 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.]
lesson i science
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.
lesson i investigation errors1
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 ,
keep investigating
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.
keep investigating1
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.
concerns regarding suppression law i
Concerns Regarding Suppression Law - I
  • Of the first 200 DNA exonerations, 158 involved eyewitness testimony
  • 29 raised “suggestive ID” claims
  • None received relief
concerns regarding suppression law ii
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
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 defendant “confessed” and did not challenge confession as unconstitutionally obtained. Pennsylvania.
the disconnect1
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
disconnect
Disconnect
  • It is inconsistent to allow defendants who pleaded guilty to use post-conviction proceedings…in light of alleged new evidence…
disconnect1
Disconnect
  • Both his confession and his new claims cannot be true. A defendant knows at the time of his plea whether he is guilty…[and with the guilty plea] waives the right to present evidence regarding guilt or innocence.Indiana, 2008 (not a DNA case).
disconnect2
Disconnect
  • November, 2008:
  • Washington State trial court denies post-conviction testing because the blood-spatter evidence was convincing and overwhelming.
so what s a reasonable test
So, What’s 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.
what s reasonable
What’s 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?”
collateral lessons i
Collateral Lessons - I
  • Familial DNA and Darryl Hunt
  • If it’s good enough for exonerations, isn’t it good enough for investigations?
  • Is this a database expansion issue?
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?

Collateral Lessons - II
collateral issues iii
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
collateral issues iv
Collateral Issues - IV
  • Should we have statutes for other types of post-conviction testing?
  • Six states and Washington, D.C. do.
reliability not adversariness
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
references
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)
references1
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)
references2
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. 4:173–92.
references3
References
  • House v. Bell, 126 S. Ct. 2064 (U.S. 2006)
  • United States v. Risha, 445 F.3d 298 (3rd Cir. 2006)