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Lessons from Cold Cases: Insights on Post-Conviction DNA Testing by Professor Jules Epstein

In this comprehensive analysis, Professor Jules Epstein explores the critical lessons learned from post-conviction DNA exonerations. Highlighting the issues of corroborative evidence, investigation errors, and the impact of prior convictions on justice, Epstein emphasizes that the strength of prosecution evidence does not negate third-party guilt claims. He presents a series of case studies illustrating the importance of continual investigation and the challenges posed by eyewitness testimony and confessions. This work aims to foster a deeper understanding of the intersection of forensic science and justice.

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Lessons from Cold Cases: Insights on Post-Conviction DNA Testing by Professor Jules Epstein

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Presentation Transcript

  1. Cold Case Lessons for Post-Conviction DNA Professor Jules Epstein NIJ 2009

  2. Exonerations have: Confessions Forensics Eyewitnesses Informants Lesson I: Corroborative Evidence Isn’t The Test

  3. 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)

  4. 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)

  5. 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.]

  6. 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.

  7. Lesson I: Investigation Errors

  8. 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 ,

  9. 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.

  10. 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.

  11. Lesson II: ConstitutionalityIsn’t The Test

  12. Concerns Regarding Suppression Law - I • Of the first 200 DNA exonerations, 158 involved eyewitness testimony • 29 raised “suggestive ID” claims • None received relief

  13. 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

  14. Lesson III: Criminal PastIsn’t The Test

  15. Exonerees Had a “Past” • In 80% of the DNA exoneration cases, more than half of the “exonerees” had prior convictions.

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

  17. 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

  18. Disconnect • It is inconsistent to allow defendants who pleaded guilty to use post-conviction proceedings…in light of alleged new evidence…

  19. 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).

  20. Disconnect • November, 2008: • Washington State trial court denies post-conviction testing because the blood-spatter evidence was convincing and overwhelming.

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

  22. 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.

  23. 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?”

  24. 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?

  25. 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

  26. 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

  27. Collateral Issues - IV • Should we have statutes for other types of post-conviction testing? • Six states and Washington, D.C. do.

  28. 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

  29. 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)

  30. 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)

  31. 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.

  32. References • House v. Bell, 126 S. Ct. 2064 (U.S. 2006) • United States v. Risha, 445 F.3d 298 (3rd Cir. 2006)

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