With 300-plus Cases of DNA Exoneration, In How Many Is the Defendant Actually Innocent?

Posted: February 4, 2013 in Failed Forensics
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My  presentation Failed Evidence on January 31 at the University of Toledo College of Law — lively, well attended, and intense — featured a great question that I want to put to everyone.

One person in attendance was a man who is a police chief in Ohio.  He’s had a long and distinguished career; I had the great privilege of working with him some years ago, when I was a member of the University of Toledo faculty.    In one part of my presentation on Failed Evidence, I discussed the more than 300 cases since 1989 in which DNA identification has resulted in an exoneration.   In the Q & A after the talk, the chief asked a question about the 300-plus cases.  I’ll paraphrase: among those cases, he said, there would be some in which the DNA results disproved the conviction, but did not necessarily prove the defendant was not guilty.  This is because, he said, the absence of the defendant’s DNA may not support guilt, but it also does not necessarily prove innocence either.  (I’m hoping I understood his comment/question correctly and am conveying it clearly.) Was I prepared to admit that in at least some of the 300 cases, the defendants might indeed be guilty, even if the DNA had resulted in the defendant’s release and the dropping of charges?

I have had this question asked of me before, and heard it posed to others.  I gave my answer, but I would like very much to hear yours.  What do you think? Is the question correct, or is it based on certain assumptions that may not hold?  What would your answer to the question be?

  1. John Douglas the profiler obviously still believes Guy Paul Morin is guilty of murdering his 9yo neighbour. Apparently on the basis that, though the DNA didn’t match, Morin did play the clarinet (and Douglas’ profile had prognosticated that the killer would be musical).

  2. Steve Johnston says:

    Having worked in forensics in the UK for over 12 years I am now being in a position where I have to make decisions about which forensic evidence is examined in cases and which isn’t. It is this role, that I have been in for the last three years, which piqued my interest in the Innocence Project and the question posed here is one which is close to my heart.

    It is my personal opinion, that in the UK, the system is too soft on the criminals and that the forensic evidence in some cases is dismissed as there is nothing else to back it up. In some cases, when blood from a known burglar has been found at a point of entry, the case has been discontinued because the blood is outside and there is nothing to put the suspect actually inside the scene, thereby conclusively proving the case. The suspect does not have to account for how their blood came to be found at the scene.

    Having said that, there are other cases where the evidence is pointing to a suspect being innocent and I have been asked to have further work done to prove their innocence. If everything is pointing to the suspect being innocent, sometimes forensics are not required to prove it and cases can be discontinued without unnecessary expense and delaying the release of innocent people.

    I have just started reading about the Innocence Project and I have not looked at any case studies yet, but it would be my hope that, as I do in my job, they look at all the evidence in the case and not just at one particular area of forensics. Even if there is one piece of evidence used in a trial which can be proved to be wrong, it should not rule out all the other evidence which still proves a person is guilty.

    If there is one piece of forensic evidence in a case which was the only piece of evidence proving guilt, and that piece of evidence is proved to be wrong, then it is only right that the verdict be overturned.

    The bottom line is that while we don’t want innocent people incarcerated for crimes they didn’t commit, it is equally as bad to release people who are guilty. Let all the evidence and the facts decide.

    • You are correct: we do not want mistakes made about innocence or guilt. Since we have a criminal justice system designed (if you will) and run by human beings, in all of our imperfection, we know that mistakes will occur. The least we owe ourselves is to use the best procedures and practices that science has for us, so that we make the fewest mistakes that we can, and hopefully we can catch the few mistakes down the road. The dedication to using the best scientifically proven techniques for eyewitness identification, interrogation of suspects and traditional forensics is still too rare in American law enforcement. Is the same true in the UK, I wonder?

  3. W. Trentadue says:

    A lack of DNA evidence could mean different things. Perhaps there was an insufficient sample collected, or there was evidence present, but not all of the evidence was collected. For example, in the case of a sexual assault, where the victim positively identifies the suspect, should the case be dismissed if there is a lack of DNA evidence? I think if you are relying too much on DNA, it will negate other important factors needed to build strong cases, such as eyewitness testimony. I have seen a similarly aligned and disturbing trend in our judicial system, in the case of drunk driver’s. The latest fad that judges in Cook County, IL are using is requiring the squad car’s in-car video footage from the drunk driving stop, and subsequent field sobriety tests. Without the video footage, judges are quick to dismiss all charges. So in essence, they feel that without video footage, the defendant could not have been under the influence, which is ludicrous!

    • You’re right that a lack of DNA can mean many things. But when the other evidence in a sex assault points to only one perpetrator, and the state tries its case on the basis that there was one perpetrator, but then after the guilty verdict the DNA does not match the perpetrator, at the very least the state should pause and ask whether there is sufficient evidence to try the case again. Instead, in too many cases, the state proclaims a new theory: there was more than one attacker. For a great example, see the book The Wrong Guys, by Tom Wells and Richard Leo.

  4. john6805 says:

    DNA, by itself, cannot determine guilt or innocence. It can only determine if a person was, at some time, at the location where the crime occurred. It won’t tell you when the person was there, or for how long the person was there. I would hope that just because the DNA doesn’t match the state’s evidence, that the State reviews the other evidence before releasing the accused or convicted.

    • You are right about this. They should review all the evidence. And when the other evidence does not provide sufficient support for the conviction, given the DNA’s lack of support, they should consider withdrawing the case. When the other evidence does support the verdict, they must evaluate it with the lack of DNA support as part of the mix. Would the case still draw a guilty verdict, knowing that DNA seems to contradict guilt?

  5. A person is innocent until proven guilty. It is the principle upon which our system was built.

  6. Charles R.. Conway says:

    Prof. Harris: That depends. I cannot envision an affirmative answer in the prosucution of a rapist, or anyone accused of an intimate sexual act if his or her DNA is not a match to the government’s evidence. Accomplice liability is something else. “It is better that the constabulary allow 99 men to go free…” However, I did arraign a fellow the other night who denied that an arrest resulted in his conviction. He told me that he had “been proven innocent” I told him, as I discounted the arrest record, that there never is such proof.

    • I like your reply to this person. I can remember being in court once, and receiving a not guilty verdict from the judge (it was a bench trial). The defendant, standing next to me, proclaimed, “I’m innocent!” The judge replied “Sir, none of us are innocent, but in this case, you are not guilty. You may go.”

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