|MARGARET A. BERGER
Brooklyn Law School
LESSONS FROM DNA:
RESTRIKING THE BALANCE BETWEEN
FINALITY AND JUSTICE
One of the remarkable features of DNA testing is that it not only suffices to convict, but that it also serves to exonerate. To date, over 120 convictions have been vacated as a consequence of postconviction DNA testing.1 This number would undoubtedly be considerably higher had it been possible to test in the many cases in which crime scene evidence was inadvertently lost or routinely destroyed. It has been estimated that no evidence can be found in about 75% of the cases in which inmates seek DNA postconviction testing.2
These vacated convictions require us to rethink how our criminal justice system operates. They suggest the need to reassess the value of finality in criminal proceedings, and to strike a new balance between the benefits of repose and the demands of justice. In this essay, I first examine the assumptions buttressing our traditional approach to finality and how they have been challenged by DNA testing. I then turn to factors that need to be balanced in considering when postconviction DNA testing should be allowed. Finally, I discuss some lessons of enduring importance that we ought to remember once the demand for postconviction DNA testing dwindles, as it will. Postconviction testing will gradually become passé as DNA testing is routinely done prior to trial, and as DNA technology reaches the point where future retesting will not provide any more definitive answers when initial results are inconclusive. Nevertheless, even though in the long run the proper handling of postconviction requests for DNA testing may turn out to be a fleeting concern, this interim problem has highlighted flawed assumptions and failings in our criminal justice system that will continue to require attention.
I. The Case for Finality.
The law has always recognized the need for finality in judicial proceedings, and especially in criminal proceedings. Indeed at common law, a motion for a new trial could be granted only during the term of the court in which the final judgment of conviction was entered.3 Although over time, many states extended the period in which relief could be sought from a perceived erroneous judgment, the window in which this could be done remained quite narrow, rarely extending beyond a year.4
Why did the legal system seek to ensure the finality of most convictions? A number of strong beliefs converged to produce this result.
A. The presumption of correctness. First of all, there was a firmly embraced presumption that a jury of one’s peers would render a correct verdict after a trial at which the accused was accorded a full panoply of constitutional guarantees, including the right to counsel. And the system provided in addition for appellate review, and mechanisms for correcting grave constitutional errors. Allowing verdicts to be reopened implied that this system did not always work, and detracted from the majesty of the law. It seemed more palatable to suggest that in the rare instance of an erroneous verdict, executive clemency rather than judicial attention would adequately rectify the mistake.5
B. Evidence becomes less reliable over time. Second, there was a fear, a genuine and well-based fear, that vacating a criminal judgment would lead to a second trial in which the result was less likely to be accurate than the original verdict. This was so because criminal proceedings often hinged on testimonial proof offered by eyewitnesses and other fact witnesses. Over time, we know that some of these witnesses will die or vanish; we live in a highly mobile society in which persons often relocate, and then cannot be found. Even when a witness is available for the second trial, we know that memories fade with the passage of time. Furthermore, we suspect that perjury will flourish as witnesses become unavailable or fail to remember.
In Herrera v. Collins, the Supreme Court categorically stated that “the passage of time only diminishes the reliability of criminal adjudications.”6 The facts of Herrera certainly supported this conclusion. Ten years after his conviction, petitioner claimed for the first time that his brother, who had died six years previously, was the actual killer. To prove this claim, petitioner offered a number of affidavits, which were inconsistent with each other, and with defendant’s version of the events. The proof at trial had been extensive, including some traditional serological evidence, and a letter signed by the petitioner in which he confessed his guilt.7
C. The value of closure. Finality promoted needed closure for victims and their families, and for participants in the legal proceedings -- witnesses, judicial officers, prosecutors, victims’ rights advocates, and law enforcement personnel. Finality meant that all these individuals could get on with their lives because the case was over. Because some closure was undoubtedly a first step towards emotional healing, finality had value in contributing to better mental health.8
D. The floodgates argument. Judicial resources have always been strained. Finality conserved scarce judicial time by not opening the floodgates to meritless and costly claims. Furthermore, by freeing judges to handle cases in which there as yet had been no adjudication, finality served the presumption of innocence by providing an accused with a speedier opportunity to prove his innocence and emerge from the shadow of the state’s accusation.
II. The Impact of DNA Testing on Arguments for Finality
Many of the assumptions on which the case for finality rested have been significantly undercut by the advent of DNA profiling. We now know that eyewitnesses may be mistaken, that traditional forensic evidence does not always produce accurate results, that DNA evidence actually gets better over time as technology improves, and that greatly expanded databases may enable the true culprit to be identified if postconviction DNA testing is done. It also remains true, however, that courts are hard put to handle their current dockets, and that judicial budgets are as strained as ever. Furthermore, DNA testing has imposed tremendous costs in money and time on forensic laboratories as they struggle to handle current case work, to reassess unsolved cases, and to deal with enormous backlogs of samples collected for databanks. What has been the impact of these changes on the arguments for finality?
A. DNA testing rebuts the presumption of accuracy. Undoubtedly, the demonstration that numerous defendants were wrongfully convicted has made the most dramatic inroad into the case for finality, especially as a significant percentage of the convictions that were vacated related to inmates who were on death row.9 As yet, we know of no case in which someone was executed who would have been exonerated by DNA testing, but the possibility is real and is being investigated in a number of cases.10
For the first time, we have irrefutable proof of the fallibility of eyewitness testimony. Of course, the reliability of eyewitness identifications has been suspect for years.11 The Supreme Court evinced an interest in reducing the suggestiveness of line-ups as long ago as the 1960's,12 but shortly thereafter retreated from doing anything further to improve the accuracy of pretrial identifications.13 Extensive psychological research that began in the 1970's – before DNA entered the courtroom– seemed to demonstrate convincingly the failings of eyewitness testimony.14 Of necessity, however, the social science studies that documented the inaccuracies of witness’ accounts were based almost exclusively on data derived through simulations. Skeptics questioned whether witnesses in real life would perform as poorly as the participants in a staged or scripted event who lacked the same incentives to make a correct identification, and who were not as actively engaged in the event as a witness to a real crime.15
But the more than one hundred twenty convictions that have now been vacated on the basis of postconviction DNA testing offer unquestionable and systematic proof of the unreliability of eyewitness testimony. It has now become possible to analyze what went wrong in these proceedings. Almost every one of these cases rested almost exclusively on an erroneous identification.16 Furthermore, we know that even an intelligent witness who consciously sought to study her assailant’s face could make an incorrect identification and, in addition, fail to recognize the true perpetrator.17
Moreover, the advent of DNA testing has done more than expose the fallacies of eyewitness testimony. It has also illuminated other errors. In many of the cases in which convictions have been overturned on the basis of DNA testing, the prosecution had relied on expert testimony about matching hair in addition to eyewitness testimony.18 Mitochondrial DNA testing has now established the inaccuracy of microscopic hair comparisons that courts had previously admitted.19
DNA has also had a revolutionary impact on forensic laboratory practices. Critics had protested for decades about the sorry state of many American crime laboratories.20 Both committees formed by the National Research Council to study the forensic use of DNA stressed the need for strict laboratory standards to minimize the risk of error.21 Under the leadership of the FBI, guidelines were developed for quality control and quality assurance programs in DNA laboratories,22 and by 1999, a report by the National Institute of Justice reported progress in forensic DNA laboratories with regard to implementing such programs.23 The report also recognized the need to tailor quality control and quality assurance programs for other types of forensic laboratories as well. The consequence is a heightened awareness of the importance of credible laboratory performance and the realization that faulty or sloppy laboratory analyses may result in wrongful convictions.24
Obviously, the presumption that jury verdicts are correct takes a battering when we see indisputable proof of the weakness of eyewitness testimony, the worthlessness of some traditional forensic techniques, and the woefully deficient standards that exist in some crime laboratories.
B. DNA evidence becomes more reliable over time. One assumption on which the belief in finality rests – that the passage of time will undermine the accuracy of a criminal adjudication25 – is completely refuted by DNA testing.26 The cases in which convictions have been vacated demonstrate that a far more accurate result is obtainable by means of DNA testing, even though many years, often more than a decade, have elapsed since the original verdict.
Unlike the memory of witnesses, DNA does not fade away.27 Furthermore, ever since forensic DNA first entered the courtroom, technological advances have steadily enhanced the discriminating power of DNA to identify correctly the source of biological samples. Additional progress is expected in the near future.28
C. DNA testing may lead to closure in unsolved cases. The argument that finality provides closure for those emotionally involved is powerful. Reopening a case may be traumatic, especially for victims and their families, who thought that they had finally put what are often prolonged legal proceedings behind them. When DNA testing results in the exclusion of the inmate, the victim will suffer great guilt if his or her erroneous eyewitness testimony was responsible for the conviction,29 and the victim may, in addition, be terrified that the real perpetrator will return as he may have threatened to do.
Despite these compelling reasons for acknowledging the value of closure, the argument that finality is essential to psychological health has also become less convincing since the appearance of postconviction DNA testing. Testing may lead to new and different benefits for the victim that must be considered in evaluating the value of finality. For instance, if the inmate’s identity as the perpetrator is confirmed – as it is in a significant percentage of cases30 – the victim can be reassured that this result decreases the possibility that the assailant will be released on probation or parole. Furthermore, the inmate’s DNA may be added to the federal or state databases which may result in his being implicated in unsolved crimes.31 If the testing results in an exclusion of the inmate, running the crime scene sample against DNA from other suspects or against a databank may lead to the identification of the true culprit.32 Although the victim may be left with regrets about her role in the original trial, she will finally have true closure because attempts to reopen the original case will cease. In addition, she will have the satisfaction of knowing that others will be safer. If the perpetrator was not in prison at the time he was identified, he now will be, and if he was imprisoned, he is much less likely to be released.
In other cases of exclusion in which the identity of the true perpetrator is not immediately revealed, running the crime scene sample against samples from unsolved crimes may prove helpful. If there is a match, further investigation may reveal other links between the cases that will serve to identify the perpetrator. Putting the sample into the database may also help to solve crimes in the future. Here too, the linking of the cases may provide crucial investigative leads. Furthermore, as databases grow, there is a possibility that an unidentified sample will match a new entry. In sum, postconviction DNA testing may lead to resolutions beyond the particular proceeding in question and provide closure in cases that would otherwise remain unsolved.
D. The availability of postconviction testing does not unloose floodgates although it may impose some costs. The floodgates argument has been in the news of late in connection with new legislation that would permit prisoners to seek access to DNA testing.33 Until very recently, only two states, New York in 1994 and Illinois in 1998, had enacted special statutes that specifically authorize postconviction access to DNA testing. This is changing rapidly. Spurred by growing public pressure to acknowledge the problem of wrongful convictions,34 legislatures in many jurisdictions began to consider a host of new proposals. By January 1, 2003, thirty-one states, including New York and Illinois, had enacted legislation authorizing inmates to seek DNA testing under specified circumstances,35 and legislation is pending in other states,36 and in Congress.37
Although critics voice apprehension that prisoners’ petitions will have an adverse impact on the legal system,38 the empirical evidence suggests that fears of an avalanche of requests are vastly overblown. For instance, the California Attorney-General’s office asked for $1.8 million to respond to the 400 petitions it expects a year under California’s new statute which took effect on January 1, 2001.39 However, New York had a total of only about 100 applications in the first seven years during which its statute has been in effect.40 This is remarkably low considering the large population of New York, the extremely liberal standard in the New York statute,41 and the fact that New York is the home of the Innocence Project, which far more than any other group has been involved in postconviction DNA proceedings. Furthermore, California’s actual experience seems far more consistent with New York’s than with the California Attorney-General’s office prediction. On its own initiative, the District Attorney’s Office for the County of San Diego, which has a population of 3 million, began reviewing all convictions of persons still incarcerated that were obtained prior to 1993, the year when DNA casework began. With about 75% of the work completed, only 3 cases had been identified in which DNA testing might make a difference, but in only one was there a possibility that testing will be done. One of the three inmates rejected the opportunity to test, and in a second case no biological evidence that could be tested was preserved.42
That there may be considerably fewer requests for postconviction DNA testing than some envision, does not, of course, mean that there are no costs associated with such requests. Aside from the expense of investigating, screening and perhaps ultimately testing, the cases in which convictions have been vacated demonstrate that complex issues arise that command considerable judicial and prosecutorial attention before they are resolved. And certainly it is to be expected that the new statutes authorizing access to DNA testing will raise numerous questions of interpretation when they initially go into effect. In addition, as will be discussed below, the right to postconviction testing will be meaningless unless adequate procedural protections are provided, and these will add to the cost of the proceedings. The scarce resources argument therefore continues to have some strength, even though some of the more extreme predictions can be discounted about the judicial system being swamped by motions for postconviction DNA testing.
The advent of DNA testing has clearly reduced the persuasiveness of traditional arguments that urge finality in criminal judicial proceedings. This inroad into finality is a reality that more and more jurisdictions have become willing to accept -- in at least some situations. For at a minimum, the new statutes that authorize postconviction DNA testing acknowledge that it is inconsistent with justice to deprive all wrongfully convicted persons of a meaningful opportunity to set aside their convictions in a judicial proceeding. These statutes vary considerably, however, in setting out the conditions under which access to DNA testing will be available, and illustrate a variety of policy choices in striking a new balance between finality and justice.
III. Restriking the Balance Between Finality and Justice
This section first considers and critiques three sets of policy choices that enter into determining when postconviction DNA will be available. It then discusses procedural choices that also need to be made.
A. When should testing be available. 1. Proof of innocence versus a lesser standard. A fundamental choice that faces legislatures and courts is whether testing should be available only when an exclusionary result could be determinative of the innocence of the petitioner seeking testing,43 or whether testing should be extended to situations in which proof of an exclusion might have a lesser effect.44 For instance, testing could be limited to cases in which the result might raise a reasonable doubt,45 or allowed if an exclusionary result at trial would probably have led to a more favorable verdict or sentence.46 Determining the standard that exclusionary results must meet is the point at which striking an appropriate balance between the competing interests of finality and justice becomes most acute.
Sometimes the exonerative effect of an exclusion will be obvious– as when the petitioner was convicted of raping a sexually-inactive child. At other times exoneration may depend on the facts of the case. If, for instance, petitioner was convicted of raping a woman who reported that two men had raped her, and that she had not had consensual sex in the relevant period preceding the rape, testing will exonerate the petitioner only if the results reveal two separate DNA profiles, neither of which is the petitioner’s.
There are also cases in which the effect of an exclusionary result will be in dispute. One such scenario occurs when the rape victim is dead and the prosecution argues that an exclusionary result does not prove the petitioner’s innocence because if the victim had consensual sex before her death the crime scene DNA profile might be that of her partner rather than that of her assailant. Such an argument was made in the Criner case in Texas in which petitioner’s conviction was reinstated by the reviewing court after it had been vacated on the basis of an exclusionary result. Petitioner was finally pardoned after a DNA test of a cigarette butt found near the victim’s body was found to contain both the victim’s DNA and DNA that matched the donor of the semen.47
In cases such as these it might be fairer to place the burden of proof on the prosecution to show the likelihood of the victim’s having had consensual sex, rather than requiring the petitioner to rebut the possibility. If the petitioner is innocent, he is unlikely to have any information about the victim’s life, but the prosecution will have conducted a full investigation into the victim’s last few days in searching for her killer. The law often shifts the burden of establishing a fact to the party who has peculiar knowledge as to the matter.48 Other evidentiary mechanisms, such as drawing inferences from the failure to produce evidence, might be needed to deal with other fact patterns. Suppose, for instance, that the victim admits to consensual sex at the relevant time, but his or her partner refuses to provide a sample, or has vanished, or is dead, all real possibilities given the time that may have elapsed between the conviction and the request for testing. As yet there is virtually no law on obtaining elimination samples from third persons, or on the consequences of such a sample not being available.49
In some cases an exclusionary result will not be determinative of innocence. It may, however raise a reasonable doubt about guilt, or may likely have produced a more favorable result at petitioner’s trial, or may simply be helpful to petitioner, as when the conviction was used to enhance sentencing. Determining precisely what effect the lack of testing had may be extremely speculative. What would have happened at the defendant’s trial if the prosecutor had not continuously and suggestively waved a bloody shirt found at defendant’s house? Even if DNA testing proves that the bloodstains are not the victim’s, that does not prove that defendant is not a murderer. But it may mean that defendant had a very unfair trial. Should we spend scarce resources on looking at that kind of case?
The new statutes contain a variety of different standards that run along the spectrum from requiring an exclusion to establish actual innocence50 to no standard at all.51 It is too soon to determine what a majority of the states are doing because so many bills are pending, and the appellate courts have not as yet had an adequate opportunity to interpret the statutes that have gone into effect.52
2. Limiting testing to inmates with the most severe sentences versus all inmates. Some states have enacted statutes that tie access to postconviction testing to the severity of the petitioner’s sentence. Tennessee and Kentucky allow petitions only by inmates who were convicted of first degree murder and sentenced to death.53 Washington similarly permits petitions by inmates on death row, but also allows requests from persons sentenced to “life imprisonment without possibility of release or parole.”54
Although it is perhaps understandable why a state might ration its resources by limiting postconviction DNA testing to cases in which exclusionary results would most likely have produced a different outcome, it is difficult to fathom why an inmate who never had an opportunity to establish his innocence through DNA testing should rot behind prison bars even when an exclusion would be exonerative.55