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

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

4. 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. 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) Holmes (trial standard)

5. 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) [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)

6. 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.] [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.]

7. 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. 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.

8. Lesson I: Investigation Errors

9. Tunnel Vision has afflicted both prosecution/police and defense investigations. Tunnel Vision has afflicted both prosecution/police and defense investigations. THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN CRIMINAL CASES, 2006 Wis. L. Rev. 291, THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN CRIMINAL CASES, 2006 Wis. L. Rev. 291,

10. Keep Investigating Keep Investigating In 12 DNA exoneration cases, defendants were convicted when DNA evidence at trial made clear it was not the accused. 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. The facts fit some theory.

11. 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. 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.

12. Lesson II: Constitutionality Isn’t The Test

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

14. Concerns Regarding Suppression Law - II Of the first 200 DNA exonerations, 20 involved confessions Of the first 200 DNA exonerations, 20 involved confessions 10 cases challenged constitutionality 10 cases challenged constitutionality 13 cases challenged some aspect of confession 13 cases challenged some aspect of confession None prevailed None prevailed

15. Lesson III: Criminal Past Isn’t The Test

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

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

18. 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 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

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

20. 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). 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).

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

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

23. So, What’s A Reasonable Test? Ignore other evidence; ask about the potential of the DNA? 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. Remember – the decision to agree to test is not the same as the decision of what to do with test results.

24. 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) 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?” Is this “innocence” or “PBRD?”

25. Collateral Lessons - I Familial DNA and Darryl Hunt Familial DNA and Darryl Hunt If it’s good enough for exonerations, isn’t it good enough for investigations? If it’s good enough for exonerations, isn’t it good enough for investigations? Is this a database expansion issue? Is this a database expansion issue?

26. Collateral Lessons - II Statutes of Limitations for Prosecutions: Statutes of Limitations for Prosecutions: Eliminate Eliminate Expand Expand Toll (John Doe) Toll (John Doe) Defense: Due Process (loss of witnesses) Defense: Due Process (loss of witnesses) Statutes of Limitations for Post-Conviction DNA: Statutes of Limitations for Post-Conviction DNA: Strict (5 states have a 1-3 year post- conviction limit) Strict (5 states have a 1-3 year post- conviction limit) Prosecution: Loss of witnesses? Prosecution: Loss of witnesses?

27. Collateral Issues - III Defense Access to CODIS Defense Access to CODIS Jeffrey Deskovic (database checked 16 years later) 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. 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 2 states allow post-conviction access to NDIS

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

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

30. References THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN CRIMINAL CASES, 2006 Wis. L. Rev. 291 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) 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) Brandon Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629 (June, 2008)

31. References Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55 (2008) 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) Risinger, INNOCENTS CONVICTED: AN EMPIRICALLY JUSTIFIED FACTUAL WRONGFUL CONVICTION RATE, 97 J. Crim. L. & Criminology 761 (Spring, 2007)

32. References Epstein, “Genetic Surveillance” - The Bogeyman Response to Familial DNA Investigations (forthcoming, Journal of Law, Technology and Policy) Epstein, “Genetic Surveillance” - The Bogeyman Response to Familial DNA Investigations (forthcoming, Journal of Law, Technology and Policy) Samuel Gross, Convicting the Innocent, Samuel Gross, Convicting the Innocent, Annu. Rev. Law Soc. Sci. 2008. 4:173–92.

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