Cold Case Lessons for
Post-Conviction DNA
Professor Jules Epstein
NIJ 2009
Lesson I: Corroborative Evidence
Isn’t The Test
 Exonerations
have:
 Confessions
 Forensics
 Eyewitnesses
 Informants
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 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 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

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 Errors
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
 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 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.
Lesson II: Constitutionality
Isn’t The Test
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
 Of
the first 200 DNA
exonerations, 20 involved
confessions
 10 cases challenged
constitutionality
 13 cases challenged some aspect
of confession
 None prevailed
Lesson III: Criminal Past
Isn’t The Test
Exonerees Had a “Past”
 In
80% of the DNA exoneration
cases, more than half of the
“exonerees” had prior
convictions.
The “Disconnect”
 No
DNA testing because
defendant “confessed” and
did not challenge confession
as unconstitutionally
obtained. Pennsylvania.
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
 It
is inconsistent to allow
defendants who pleaded guilty to
use post-conviction
proceedings…in light of alleged
new evidence…
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).
Disconnect

November, 2008:

Washington State trial court denies
post-conviction testing because the
blood-spatter evidence was
convincing and overwhelming.
Disconnect
 Nine
exonerees
pleaded guilty
and many
more did not
dispute
identity at trial
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
 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
 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  Statutes of Limitations
for Prosecutions:
for Post-Conviction
DNA:
Eliminate
 Strict (5 states have a
Expand
1-3 year postToll (John Doe)
conviction limit)
Defense: Due Process
 Prosecution: Loss of
(loss of witnesses)
witnesses?
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
 Should
we have statutes for other
types of post-conviction testing?
 Six states and Washington, D.C.
do.
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
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)

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)

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.
References
 House
v. Bell, 126 S. Ct. 2064
(U.S. 2006)
 United States v. Risha, 445 F.3d
298 (3rd Cir. 2006)