The Impact of DNA Exonerations on the Criminal Justice System

National Institute of Justice, Department of Justice, Post-conviction DNA Testing: Recommendations for Handling Requests (NIJ 177626, September 1999): 10, note 2.

Id., at 15–16.

Connors E. , Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (National Institute of Justice, 1996).

See National Institute of Justice, supra note 1, at v.

Id., at iii.

Ariz. Rev. Stat § 13–4240 (2002); Ark. Code Ann. § 16-112-202 (Michie 2002); Cal. Penal Code § 1405 (West 2002); Col. Rev. Stat. § 18-1-413 (West 2003); Ct. Stat. § 54–102J (7)(2003); Del. Code Ann. tit. 11, § 4504 (2002); D.C. Code Ann. § 22–4133 (2002); Fla. Stat. Ann. 925.11 (West 2002); Ga. Code Ann. § 5-5-41 (West 2003); Idaho Code §§ 19–2719, 19–4902 (Michie 2002); 725 Ill. Comp. Stat. Ann. § 5/116-3 (West 2002); Ind. Code Ann. §§ 35-38-7-1 to 19 (West 2002); Kan. Stat. Ann. § 21–2512 (2001); Ky Rev. Stat. Ch. 422.285 (2002); La. Code Crim. Proc. Ann. art. 926.1 (West 2002); Me. Rev. Stat Ann. tit. 15, § 2137 (West 2001); Md. Code Ann., Crim Proc. § 8–201 (2002); Mich. Comp. Laws Ann. § 770.16 (West 2002); Minn. Stat. Ann. § 590.01 (West 2002); Mo. Ann. Stat. § 547.035 (West 2002); Montana Code § 46-21-110 (2003); Neb. Rev. Stat. Ann. §§ 29–4117 to 4125 (Michie 2002); N.D. St. 29–32.1–15; N.H. Stat § 651-D:2 (2004) 2005 Hawaii Law Act 112; N.J. Stat Ann. § 2A:84–32a (West 2002); N.M. Stat. Ann. § 31–1a-1 (Michie 2002); N.Y. Crim. Proc. Law § 440.30 (McKinney 2002); N.C. Gen. Stat. § 15a-269 (2002); Ohio Rev. Code §§ 2953.71–2953.83 (Baldwin 2003); Okla. Stat. tit. 22, §§ 1371, 1371.1, 1372 (2002); Ore. Rev. Stat. T. 14, Ch. 138 Prec. 138.005 (West 2003); 42 PA. C.S.A. § 9543.1 (2002); R.I. Gen. Laws 1956, § 10–9.1–11 (2002); Tenn. Code Ann. §§ 40-30-401 to 413 (2002); Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon 2001); Utah Code Ann. §§ 78–35a-301 to 304 (2002); Va. Code Ann. § 19.2–327.1 (Michie 2002); Wash. Rev. Code § 10.73.170 (2002); Wisc. Stat. § 974.07 (2001). For a comprehensive discussion of the state statutes, see Swedlow K. , “Don't Believe Everything You Read: A Review of Modern ‘Post-Conviction’ DNA Testing Statutes,” California Western Law Review 38 (2002): 355–387.

Justice For All Act, Pub. L. No. 108-405 (2004), which encompasses the Innocence Protection Act, 18 U.S.C. s 3600 et seq.

Innocence Project, at <http://www.innocenceproject.org/> (last visited February 24, 2006).

In the 1990s, death sentences numbered over 300 per year. See, e.g., U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 1996 (1997) (320 sentences of death in 1996). In 2003, 144 inmates received death sentences, the lowest in 25 years. U.S. Dep't of Justice, Bureau of Justice Statistics, Capital Punishment, 2003 8, 14 (2004).

Atkins v. Virginia , 536 U.S. 304, 321 (2002).

Rogers v. Simmons , 125 S.Ct. 1183, 1193 (2005).

Santi A. D. , “N. J. Lawmakers Suspend Death Penalty,” (January 10, 2006), (Illinois and Maryland had also suspended executions), available at <http://www.abcnews.go.com/US/LegalCenter/wierStory?id=1489715&page=1> (last visited March 21, 2006).

Glod M. and Shear M. D. , “Warner Orders DNA Testing in Case of Man Executed in '92,” January 6, 2006, Washington Post website, available at <http://www.washingtonpost.com/wp-dyn/content/article/2006/01/05/AR2006010502463.html?sub=AR> (last visited February 24, 2006).

Glod M. and Shear M. D. , “DNA Tests Confirm Guilt of Executed Man,” Washington Post, January 13, 2006, at A01.

Rosen R. A. , “Innocence and Death,” North Carolina Law Review 82 (2003): 61–113, at 113 (DNA testing exonerated Frank Smith who died of cancer after 14 years on death row).

Giannelli P. C. , “The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories,” Virginia Journal of Law and Social Policy 4 (1997): 439–78; Giannelli P. C. , “The Admissibility of Laboratory Reports in Criminal Trials: The Reliability of Scientific Proof,” Ohio State Law Journal 49 (1988): 671–701.

See People v. Castro , 144 Misc.2d 956, 957 (N.Y. Sup. Ct. 1989) (participation by leading scientist from Whitehead Institute).

Committee on DNA Forensic Science: An Update, National Research Council, The Evaluation of Forensic Science (National Academy Press 1996): at 76–8; Committee on DNA Technology in Forensic Science, National Research Council, DNA Technologies in Forensic Science (National Academy Press, 1992): at 98.

Berger M. A. , “Raising the Bar: The Impact of DNA Testing on the Field of Forensics,” in Perspectives on Crime and Justice 200–2001 Lecture Series (National Institute of Justice, U.S. Department of Justice, 2002).

Giannelli P. C. , “Forensic Science,” Journal of Law, Medicine & Ethics 33, no. 3 (2005): 535–542, at 537.

N. Y. Exec. Law § 995(b) (McKinney 2005).

IN St. 10-13-6-14 (West 2003) (laboratory “must implement and follow nationally recognized standards for DNA quality assurance and proficiency testing, such as those approved by the American Society of Crime Laboratory Accreditation Board”); OH St. §2953.80 (2003) (laboratory must be “in compliance with nationally accepted quality assurance standards for forensic DNA testing, as published in the quality assurance standards for forensic DNA testing laboratories issued by the director of the federal bureau of investigation.”)

ABA Approved Resolution Crime Laboratories and Forensic Evidence (2004) (“crime laboratories and medical examiner offices should be accredited, examiners should be certified, and procedures should be standardized and published to ensure the validity, reliability, and timely analysis of forensic evidence.”)

Ward C. J. , “The Future of DNA Testing and Law Enforcement,” Brooklyn Law Review 67 (2001): 249–255, at 253.

Justice for All Act, supra note 7, at §303.

Yardley J. , “Oklahoma Retraces Big Step in Capital Case,” New York Times, September 2, 2001, at 12 (1200 cases handled by police chemist Joyce Gilchrist are being reexamined after FBI criticized her work); Puit G. , “Police Forensics: DNA Mix-Up Prompts Audits at Lab,” Las Vegas Review Journal (April 18, 2002).

“Welch man amends lawsuit over false arrest,” Charleston Daily Mail September 14, 2005 (although all of Fred Zain's work as a state police chemist was discredited in 1993, leading to payments of $6.5 million by state to persons wrongfully convicted, a perhaps final case is still pending).

Aynesworth H. , “Houston DNA Lab Near ‘Breakdown,’ Investigators Fine,” Washington Times, January 9, 2006, at AO5 (outside report reviewed 67 cases and found “major issues” with 40% of the original Houston crime-lab analyses); Jenkins C. L. , “Critical Audit Prompts Va. to Review DNA Evidence,” Washington Post, June 21, 2005, at BO5 (at least 160 cases to be reviewed).

Giannelli P. C. , supra note 19, at 538.

Scheck B. , Actual Innocence: Five Days to Execution and their Dispatches from the Wrongly Convicted (New York: Doubleday, 2000): at 246.

Berger M. A. , “Expert Testimony in Criminal Proceedings, Questions Daubert Does Not Answer,” Seton Hall Law Review 33 (2003): 1125–1140, at 1130–1134.

Houck M. M. and Budowle B. , “Correlation of Microscopic and Mitochondrial DNA Hair Comparisons,” Journal of Forensic Science 47 (2002): 964–967.

Berger M. A. , supra note 31, at 1130.

United States v. Mikos , 2003 WL 22922197, *1 (N.D. Ill. 2003) (rejecting expert testimony).

Committee on Scientific Assessment of Bullet Lead Metal Comparison, Forensic Analysis Weighing Bullet Lead Evidence (National Academy Press, 2004). See Finkelstein M. O. and Levin B. , “Compositional Analysis of Bullet Lead as Forensic Evidence,” Journal of Law & Policy 13 (2004): 119–42.

Associated Press, “FBI Stops Testing Bullets for Metal Match,” MSNBC website, September 1, 2005, available at <http://www.msnbc.msn.com/id/9163996> (last visited February 24, 2006).

Cole S. A. , Development, “Does ‘Yes’ Really Mean Yes? The Attempt to Close Debate on the Admissibility of Fingerprint Testimony,” Jurimetrics 45 (2005): 449–64.

United States v. Green , F. Supp.2d, 2005 WL 3475695, *2 (D. Mass. 2005) (judge conceded that “every single court post-Daubert has admitted this testimony.”)

Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993); General Electric v. Joiner, 520 U.S. 1114 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

Faigman D. L. , “The Tipping Point in the Law's Use of Science: The Epidemic of Scientific Sophistication that Began with DNA Profiling and Toxic Torts,” Brooklyn Law Review 67 (2001): 111–125, at 116–18.

Giannelli P. C. , “The Supreme Court's ‘Criminal’ Daubert Cases,” Seton Hall Law Review 33 (2003): 1071–1112, at 1072 (“remark-able…that stricter admissibility standard would apply in civil cases than criminal cases.”)

Saks M. and Koehler J. , “The Coming Paradigm Shift in Forensic Identification Science,” Science 309 (2005): 892–895.

Brief of the Innocence Project, Inc. as Amicus Curiae in Support of the Petitioner in House v. Bell, 2005 WL 779581.

See <http://www.nasonline.org/site/PagerServer?pagename=sackler_forensic> (an overview of Sackler A.M. , Symposium on Forensic Science: The Nexis of Science and the Law (last visited March 21, 2006).

PPL 109–108, Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006 (recognizes a problem in the forensic science and legal community: the absence of data; would direct Attorney General to provide $1,500,000 to the National Academy of Sciences to create an independent Forensic Science Committee).

See supra note 6.

506 U.S. 390, 410 (1993).

Innocence Project, supra note 8. The average length of time served is 11.5 years.

It has been estimated that no sample from the crime scene can be found to test in approximately 75% of the cases in which inmates seek post-conviction testing because the samples were never collected, were destroyed or cannot be found. Neufeld P. , “Preventing the Execution of the Innocent: Testimony before the House Judiciary Committee,” Hofstra Law Review 29 (2001): 1155–1156.

National Institute of Justice, Department of Justice, The Future of Forensic DNA Testing: Predictions of the Research and Development Working Group (National Institute of Justice, 2000).

Supra notes 26–28.

See Berger M. A. , “Lessons from DNA: Restriking the Balance between Finality and Justice,” in Lazer D. , ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge: MIT Press, 2004): at 116–119; Swedlow K. , A State by State Review of Post-Conviction DNA Testing Statutes, Online Journal of Justice Studies, at <http://ojjs.icaap.org/issues/1.1/swedlow.html> (last visited February 24, 2006).

Florida: F.S.A. (925.11(b)(1) (4 years after sentence becomes final, or conviction affirmed or collateral counsel appointed or retained in capital case, or by 10/1/05 whichever is later); Iowa, I.C.A. (822.3) (3 years from date of conviction or appeal); OH ST (2953.72 (C)(2) (not later than 10/29/05)

Trimble v. State , 157 Md. App. 73 (2004).

People v. Sheldon , 351 Ill. App. 3d 292 (3d Dist. 2004) (original test inconclusive because control test was not clean enough; no statutory provision for retesting).

Borteck D. , Note, “Pleas for DNA Testing: Why Lawmakers should Amend State Post-Conviction DNA Testing Statutes to Apply to Prisoners who Pled Guilty,” Cardozo Law Review 25 (2004): 1429–1468.

(Ky Rev. Stat., ch. 4222.285 (2002).

Scheck B. , supra, note 30, at 92 (convictions in 23% of DNA exonerations studied by the Innocence Project were based on false confessions or admissions).

542 U.S. 600, 608–11 (2004). See Leo R. A. and Ofshe R. J. , “The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation,” Journal of Criminal Law and Criminology 88 (1988): 429–496.

Of course, those pleading guilty would have been represented by counsel, but we also know from the DNA exonerations that there were numerous instances of ineffective assistance of counsel.

Medwed D. S. , “The Zeal Deal: Prosecutorial Resistance to PostConviction Claims of Innocence,” Boston University Law Review 84 (2004): 129:125–183.

Berger M. A. , supra note 52, at 116–18.

See, e.g., Utah Code Ann. § 78–35a-301 (2001) (“evidence…has the potential to produce new, noncumulative evidence that will establish the person's actual innocence.”); Wa. St. 10.73.170 (3) (“convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis”). Cf. 725 Ill.Comp.Stat.Ann. § 5/116-3(c)(1) (“noncumulative evidence materially relevant to the defendant's assertion of actual innocence even though the results may not completely exonerate the defendant.”)

Tex. Code Crim Proc., art. 64.03(a)((2)(A) (“the person would not have been convicted if exculpatory results had been obtained”); N.Y. Crim. Proc. Law § 440.30(1-a) (“reasonable probability that the verdict would have been more favorable to the defendant'). See also N.J. Stat. Ann. § 2A: 84A-32(d)(5) (“result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted.”)

See discussion in People v. Savory, 297 Ill.2d 203, 212–15) (2001).

The Court heard oral argument in House on January 11, 2006. The transcript is available at 2006 WL 147630. The opinion below is at 386 F.3d 668 (6th Cir. 2004).

513 U.S. 298 (1995).

Id., at 37.

Supra note 47.

Supra note 67, at 316.

The amicus briefs submitted in House v. Bell stress how our view of forensic evidence has been altered by the DNA exonerations. See Brief of the Innocence Project, supra note 43; Brief of the American Bar Association, 2005 WL 2367032 (2005); Brief of Former Prosecutors and Professors of Criminal Justice, 2005 WL 2367033 (2005).

Supra note 66.

Supra note 43, at 17–20. No mention of this assertion was raised at the House oral argument although there was a great deal of discussion about other disputed issues, such as the blood on the pants, possible evidence of intended rape other than the semen stain, eyewitness testimony, alleged confessions by the husband.

386 F.3d 668, 683 (6th Cir. 2004).

Id., at 686–709.

Id., at 709.