Prior to beginning work on this discussion, please review the following:

  • The articles: 
    • Policies and Practices in Cold Cases: An Exploratory Study
    • The Impact of DNA Exonerations on the Criminal Justice System
    • Cold Cases: Resources for Agencies, Resolution for Families (Links to an external site.)
    • The special report Using DNA to Solve Cold Cases (Links to an external site.) 
  • The videos: 
    • IBIS and a Cold Case (video above)
    • Just Wrong: The Aftermath of Wrongful Convictions (Links to an external site.)
    • Power of Forensic DNA & Technology in Cold Case Prosecutions – Justice Journal Episode 1 (Links to an external site.)
  • The web pages: 
    • Cold Case Initiative (Links to an external site.)
    • Cold Case Investigations and Forensic DNA (Links to an external site.)

Significant advances in forensic science and technology have been  made in just the last 50 to 75 years. The two areas most significantly  affected by these advances, which have allowed investigators to  reevaluate old cases with new tools, are cold case investigations (i.e.,  usually homicide or sexual assault) and exonerating individuals  wrongfully convicted.

 From the perspective of your assigned topic, evaluate modern science’s  potential in reevaluating evidence from historical cases. Provide  examples and specific details about what has changed and the impact it  has had on the criminal justice system. 

320 journal of law, medicine & ethics S Y M P O S I U M The Impact of DNA Exonerations on the Criminal Justice System Margaret A. Berger T he emergence of post-conviction DNA testing has had profound effects on the American crim – inal justice system. Although changes in the formal legal landscape are readily noticeable, the DNA exonerations have also produced other consequences that may have potentially more significance. To com – prehend and assess the influence of post-conviction DNA testing one must examine more than just the law on the books. After some introductory material, Part I of this essay looks at repercussions DNA exonerations are having on the basic operation of the criminal justice system, Part II examines new statutes that govern pro – cedures for post-conviction DNA testing requests, and Part III briefly considers how these current develop – ments may affect Supreme Court jurisprudence. Introduction Post-conviction DNA testing has evolved in little more than a decade. Before 2000, only two states, New York and Illinois, had statutes that authorized post-convic – tion DNA testing. 1 In other jurisdictions, no formally authorized procedures existed that allowed inmates to make requests for DNA testing of crime scene evi – dence. Furthermore, in many states, stringent time limits on making motions for a new trial on the basis of newly discovered evidence seemed to bar judicial relief even if a prisoner could somehow obtain an exculpa – tory DNA result. 2 Nevertheless, despite these obstacles, some DNA testing took place, and some convictions were vacated. Even though the legal theories that en – titled inmates to post-conviction DNA remedies were unsettled and ill-defined, starting in 1989 some sym – pathetic judges were willing to order relief in the “in – terests of justice” on an ad hoc basis, particularly when a prosecutor joined in the petitioner’s request. By 1996, the Institute of Justice’s (NIJ’s) eye opening study, Con – victed by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Margaret A. Berger, A.B., Radcliffe College, J.D., Colum – bia University School of Law, is the Suzanne J. & Norman Miles Professor of Law at Brooklyn Law School where she teaches evidence, civil procedure and courses on the interac – tion of science and the law. She is the Director of the Science for Judges Programs held at Brooklyn Law School in collabo – ration with the Federal Judicial Center, the National Center for State Courts, and the Committee on Science, Technology and the Law of the National Academies of Science. Professor Berger served as the Reporter for the Working Group on Post Conviction Issues for the National Commission on the Future of DNA Evidence, and on the National Academies of Science’s Committee on DNA Technology in Forensic Science: An Up – date, and currently is a member of the Academies’ Committee on Science, Technology and Law. She contributed chapters to both editions of the Federal Judicial Center’s Reference Manual on Scientific Evidence (1994, 2000). dna fingerprinting & civil liberties • summer 2006 321 Margaret A. Berger Trial documented twenty-eight cases in which inmates serving long sentences were able to secure their release on the basis of DNA testing. 3 In response to the NIJ Report’s revelation that wrongful convictions were a substantiated reality, then Attorney General Janet Reno asked the NIJ to create a National Commission on the Future of DNA Evidence. 4 Because of the special concern over unjusti – fied incarcerations, one of the Commission’s working groups, The Post-conviction Issues Working Group, was directed to report on an expedited basis with rec – ommendations that would enable the innocent to gain relief at an accelerated pace. 5 The Working Groups’s re – port, Post-conviction DNA Testing: Recommendations for Handling Requests, was published in September 1999, and widely circulated. By the time the report appeared, more than forty additional convictions had been vacated on the basis of DNA testing. The response to the Working Group’s report radically changed the formal legal structure. Bills governing re – quests for post-conviction DNA testing immediately began to be introduced in state legislatures. As of this writing, only a few states have not passed legislation governing post-conviction requests for DNA testing; statutes governing post-conviction DNA procedures now exist in forty-one states, and bills are pending in others. 6 Furthermore, in 2004, Congress finally passed the Justice for All Act which provides for requests from federal inmates. 7 More than an additional 100 convictions have been vacated since the NIJ Report was issued; by the close of 2005, 172 inmates had been released as a consequence of DNA testing.

8 Impact on the Criminal Justice System Even though the number of inmates released as a con – sequence of DNA testing is minuscule in contrast to the two million persons incarcerated in the United States, the DNA exonerations have had an enormous impact on fundamental assumptions about the Ameri – can criminal justice system and how it operates. This section looks at three interrelated changes that are tak – ing place that can be traced to DNA exonerations: 1) changing attitudes about the desirability of death as a punishment for criminal behavior; 2) growing concern about the operation of forensic laboratories; and 3) increased attention to forensic science.

The Death Penalty As the number of exonerations has increased, senti – ment for the death penalty has decreased. 9 Recently, the Supreme Court prohibited death as a punish – ment for the mentally retarded 10 and juveniles under eighteeen, 11 and many states have retreated from imposing sentences of death. Clearly, the specter of wrongful convictions has played an important role in bringing about these changes. Sometimes the connec – tion is explicit as when states impose moratoriums on the death penalty after wrongful convictions are un – covered by post-conviction DNA testing. 12 Although DNA exonerations may not be the only reason public approval for the death penalty is diminishing, they cer – tainly have played a major role. The extensive media coverage accorded cases of wrongful conviction means that judges and the public are well aware that some of the DNA exonerees had been sentenced to death and served time on death row. Particularly troublesome is the possibility that an innocent person may be executed, a possibility that some believe has already occurred. In January 2006, Governor Warner of Virginia ordered DNA evidence retested in the case of Roger Keith Coleman who was executed in 1992. 13 Warner explained that he ordered the tests because technological advances in DNA test – ing meant that a degree of certainty was now possible that could not be achieved in 1992. The Virginia courts had denied a request for new DNA testing in 2002.

Although the new testing implicated Coleman in the crime for which he was executed, 14 questions have also been raised about the innocence of others who received the death penalty. 15 Whether the result in Coleman will have a negative impact on post execution DNA testing remains to be seen.

Forensic Laboratories Although critics have been fulminating for decades about the sorry state of American crime laboratories, 16 their complaints were for the most part ignored until DNA came upon the scene. Unlike techniques like bal – listics, fingerprinting, or bitemark analysis which were developed and exist solely in the world of forensics, forensic DNA profiling is the fortuitous byproduct of cutting edge science. Consequently, eminent scientists participated from the first in validating DNA testing for forensic use. 17 They quickly realized that the practices followed in many crime laboratories were considerably less stringent than the standards scientists employ in conducting research. By the 1990’s, two committees convened by the National Research Council stressed the need for laboratories to develop procedures that would minimize the risk of error. 18 Under the leader – ship of the FBI, guidelines were developed for handling quality control and quality assurance issues in connec – tion with DNA testing. 19 Laboratory accreditation also became part of the agenda for improving laboratory performance. 20 Both New York and California require their forensic DNA laboratories to be accredited, a function that is performed by the American Society of 322 journal of law, medicine & ethics S Y M P O S I U M Crimes Laboratory Directors-Laboratory Accredita – tion Board (ASCLD-LAB) which audits labs to deter – mine whether they are abiding by the quality assur – ance standards. 21 Some of the new statutes that govern requests for post-conviction DNA testing require all testing to be done by an accredited laboratory. 22 The American Bar Association is working on guidelines for DNA laboratories and has called for the accreditation of crime laboratories. 23 These various measures designed to ensure the ac – curacy of DNA testing have had a spill-over effect on other kinds of forensic work done in crime laborato – ries. The ASCLD-LAB accreditation program requires that a laboratory cannot be accredited unless it quali – fies with regard to all of the services it performs (not just DNA testing. 24 The federal Justice for All Act that contains provisions governing requests for post-con – viction DNA testing also provides for grants to states to improve their forensic laboratories. 25 Reports from the field demonstrate how sorely these reforms are needed. Post-conviction reviews of DNA analyses have uncovered numerous instances of mis – takes due to the incompetence or fraud of particular analysts. 26 Some of the resulting investigations have gone on for years and have cast doubt on all convic – tions that depended on laboratory tests conducted by the tainted examiner. 27 In some jurisdictions, indepen – dent audits are being conducted of entire inventories of cases. 28 Obviously these alarming reports about the errone – ous results issuing from crime laboratories reflect per – vasive problems with regard to the hiring, training, supervision, and review of personnel. These cases are far more troubling than those in which DNA testing was not done until the post-conviction stage. That era has ended. DNA testing is now done routinely and is correctly viewed as the most remarkable forensic tool we have ever had. But DNA testing can operate as the gold standard only if the laboratory’s work is correctly done. We do not yet know how many convictions are attributable to faulty DNA analyses. Nor do we know how much the public is willing to pay to correct these disasters. 29 It remains to be seen whether the long over – due interest in laboratory performance stimulated by the DNA exonerations can effectuate the reform of American crime laboratories. Forensic Science DNA testing is also exerting an effect on forensic sci – ence. The DNA exonerations focused attention on the kinds of evidence that produced the faulty convictions.

The chief culprit in over seventy-five percent of the cases was mistaken eyewitness identification testi – mony, but in more than one third of the exonerations, flawed forensic evidence other than DNA, played a role. 30 Particularly problematic was expert testimony based on microscopic hair analysis that was admit – ted in a number of cases in which courts later vacated the convictions on the basis of DNA testing. 31 Unlike nuclear DNA analysis which permits conclusions about matches between the samples being compared, micro – scopic hair analysis cannot produce true matches. The most that an expert relying on a microscopic analysis can legitimately say is that hairs collected from the defendant (all of which will differ from each other) are consistent with hairs found at the crime scene. Nowa – days hair samples can actually be matched through mitochondrial DNA analyses (mtDNA). Studies show that a competent microscopic hair examiner can de – tect consistency between hairs, although an mtDNA analysis has a lower error rate. 32 The problem with the microscopic hair analyses testified to in the DNA exoneration cases is that although statistics exist with regard to the distribution of both nuclear and mtDNA, no such data are available with regard to microscopic hair examinations. A microscopic hair examiner has no basis for testifying about the chance that the pubic hair found at the crime scene came from the defendant.

And yet, we know from cases and news accounts that microscopic hair examiners often testified in precisely that manner with probability estimates invented on the basis of their personal experience.

33 In other forensic fields as well, experts have expressed opinions that had no statistical basis. For instance, FBI experts used to conduct lead compositional analyses to compare the bullets found at the suspect’s home with those found at the crime scene. When the bul – lets matched in terms of their metallic composition, some experts then testified about the likelihood that the crime scene bullets came from the defendant. 34 A 1994 study conducted by a Committee of the National Research Council at the request of the FBI concluded that available data do not permit FBI examiners to tes – tify as to the probability that a crime scene bullet came from a defendant. 35 The FBI has now stopped testing bullets for metal matches, and claims of wrongful con – These statutes demonstrate that effectuating meaningful legal change is a difficult and lengthy process. Despite the 172 exonerations, there is still unease in some quarters about allowing challenges to the finality of convictions. dna fingerprinting & civil liberties • summer 2006 323 Margaret A. Berger victions based on expert testimony about unwarranted probabilities have been raised. 36 Is there a connection between the curtailing of tes – timony about bullet matches and DNA exonerations?

Certainly the example of how thoroughly DNA test – ing was validated and grounded in empirical data has spurred demands that other forensic fields be subjected to the same degree of scrutiny. The extensive research conducted on DNA has highlighted the shortcomings of traditional forensic disciplines, such as fingerprint – ing 37 or ballistics, which have never been systematically reviewed. The lack of data is perhaps finally beginning to have an effect. In December 2005, a federal district judge refused to allow an expert to conclude that on the basis of his training in ballistics he knew that the gun in question had been used by defendant. 38 In part, this heightened sensitivity to establishing the reliability of forensic techniques is due to the Su – preme Court’s trilogy of cases setting out a new test of relevance and reliability for the admissibility of expert testimony, 39 a test which some suggest owes its origin in part to the advent of DNA in the courtroom. 40 Al – though the Supreme Court’s trilogy has sensitized the entire legal community about the need to scrutinize expert testimony, until now the courts have applied the reliability requirement much more stringently in civil litigation than in criminal prosecutions, even though civil cases revolve primarily around money and criminal cases involve life and liberty. 41 Pressure to pay more attention to forensic science is coming from com – mentators, 42 defense counsel, 43 scientists, including the National Academy of Science 44 and even Congress. 45 The DNA convictions that rested on traditional expert testimony which turned out to be wrong or misleading have certainly impressed these groups with the need for better science in order to ensure justice. The New Statutes As stated in the Introduction, forty-one states have now adopted legislation setting out procedures for post-conviction requests for DNA testing. 46 What is perhaps most important about this development is the underlying recognition that wrongful convictions do occur and that the executive’s historical right to grant pardons is insufficient to bring about justice. Not too long ago, the Supreme Court in Herrera v. Collins, re – ferred to clemency as the historic remedy for prevent – ing miscarriages of justice. 47 Although 172 DNA exonerations as of the end of 2005 – achieved only after innocent persons served years of imprisonment 48 – demonstrate shocking fail – ures in our criminal justice system, the fact that only 100 convictions have been vacated in the past five years shows that these new statutes are not having a drastic effect on the rate at which inmates are being released.

This, of course, is hardly surprising. For the most part, DNA evidence has been utilized in the United States only in prosecutions for rape and murder, and most prisoners are incarcerated for other crimes, which may not yield biological evidence that can be tested. Fur – thermore, in the great majority of rape and murder cases, evidence that would have been amenable to DNA testing was never collected, or was routinely destroyed, or was badly preserved, or was lost. 49 And obtaining the legal assistance and funding needed to produce a viable post-conviction application requires hurdling numer – ous obstacles. In addition, as time passes it has become more likely that DNA evidence will have been intro – duced at the inmate’s trial, and although technological advances have made DNA testing more discriminat – ing over time, so that inmates may seek DNA testing because previous testing was inconclusive, DNA test – ing has for some time now been able to distinguish between individuals with a high degree of reliability.

50 The low rate of new exonerations may also be due in part to restrictions in some of the new statutes that did not exist when individual judges relied on their discre – tion and inherent powers in handling petitions from inmates. There may, of course, be a wave of new cases if laboratory audits reveal large scale errors. 51 Although these statutes differ from each other in many respects, some take a very circumscribed ap – proach to requests for post-conviction DNA testing.52 For example, some impose strict time restraints for making requests, 53 fail to provide petitioners with the assistance of counsel, 54 bar retesting, 55 prohibit re – quests if the inmate pled guilty or confessed, 56 or limit requests to inmates on death row. 57 Some of these restrictions are at odds with what we have learned from the DNA exonerations. For instance, we know that false confessions were made in quite a few of the cases, 58 and we know that the police have many techniques for eliciting confessions. Indeed the Supreme Court in 2004 in Missouri v. Seibert noted various techniques the police had developed and dis – seminated in training manuals for evading the pro – phylactic effect Miranda warnings were supposed to have on false confessions. 59 And given the huge advan – tages that suspects may gain by pleading guilty, such as avoiding the death penalty, it is remarkably harsh to bar them from post-conviction DNA testing, particu – larly as many had probably never heard of DNA, or, if they had, did not comprehend at the time they pled that DNA evidence could prove innocence. 60 These statutes demonstrate that effectuating mean – ingful legal change is a difficult and lengthy process.

Despite the 172 exonerations, there is still unease in some quarters about allowing challenges to the final – 324 journal of law, medicine & ethics S Y M P O S I U M ity of convictions. Many prosecutors, whose input is undoubtedly sought when legislators propose funda – mental changes in a state’s criminal procedures, have been far from enthusiastic about post-conviction DNA testing, and have resisted innocence claims even when DNA test results clearly exculpate the defendant. 61 The ambivalence towards allowing post-conviction DNA testing requests is most visibly expressed in the different standards statutes require an inmate to meet in order to be entitled to testing and to relief if the test – ing results are favorable; 62 some require the petitioner to show that an exculpatory result would demonstrate actual innocence; 63 others call for less than exonera – tion, such as a showing that the sentence would have been mitigated. 64 It is as yet far from clear how high the petitioner’s burden is in making these showings, or whether the court should base its determination on all the evidence in the case, or solely on an evaluation of the evidence that would not have been admitted against him had DNA testing been available. 65 For in – stance, in a case with a recanted confession and a pos – sible motive, where the jury was told that traditional serological evidence indicated that the petitioner could have been the perpetrator, should the court look only at the impact the serological evidence might have had, or must it also take the other evidence into account? Many statutes are silent regarding the relief to which the petitioner is entitled if the testing results are favor – able. In the states that use a less stringent standard for when a defendant is entitled to testing – as, for instance, a reasonable probability that petitioner’s sen – tence would have been more favorable – can the state now require the petitioner to offer other exculpatory evidence in order to have the conviction vacated or to get a new trial if the testing results are favorable but not exonerating? We do not as yet have many opinions from appellate courts exploring these issues. The Su – preme Court’s opinion in House v. Bell, 66 discussed in the next section, may well affect how state courts will interpret the standards in the state statutes. Post-conviction Claims and the Supreme Court Supreme Court jurisprudence on when a showing of actual innocence entitles an inmate to relief is far too complex and uncertain to analyze in this short essay.

This perplexing question can arise in two different ways: 1) As an excuse for failing to present constitu – tional claims in state court; 2) By a petition warranting free-standing habeas relief. The first type of actual innocence claim stems from the Supreme Court’s 1995 opinion in Schlup v. Delo.

67 In Schlup, the Court was faced with a petitioner under sentence of death who asserted he was innocent, and who sought to assert a constitutional claim of ineffec – tive assistance of counsel that he had forfeited in state court by failing to raise it at the proper time. The Court stated that the actual innocence claim could be used as a “gateway” to reinstate the ineffective assistance claim and overcome the procedural default, provided the petitioner can show that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” 68 The possibility of a free-standing actual innocence claim was discussed in dictum in Herrera v. Collins, 69 a 1993 opinion of the Supreme Court. The Court ac – knowledged that even in a case without constitutional errors it would violate the Eighth and/or Fourteenth Amendments to execute an innocent person. The Court explained in Schlup that for a free-standing Her – rera claim, “the evidence of innocence would have had to be strong enough to make an execution ‘constitu – tionally intolerable.’” 70 Both Schlup and Herrera were decided before post-conviction DNA testing revealed the magnitude of wrongful convictions, the terrible conditions of many crime laboratories, and the fail – ings of some traditional forensic sciences. 71 By taking certiorari in House v. Bell, 72 a death penalty case from Tennessee, the Court has an opportunity to decide in 2006 whether our revised view of the criminal justice system warrants changes in actual innocence jurispru – dence. As in Schlup, the petitioner sought to raise a for – feited ineffective assistance of counsel claim; he raised a Herrera claim as well. The Supreme Court granted certiorari with regard to both claims. An oversimplified summary of the relevant facts of House quickly illustrates the complex legal and factual questions that post-conviction DNA testing can gener – ate. House was convicted of first-degree murder after the prosecution argued that circumstantial evidence showed that he had abducted, attempted to rape, and killed the victim. Evidence placed House at the scene of the crime, showed that he had lied to the police about his whereabouts at relevant times, and revealed that he had numerous scratches on his body which the prosecution attributed to struggles with the victim.

The prosecution also introduced forensic evidence. An FBI serologist testified that blood found on House’s blue jeans was consistent with that of the victim rather than the defendant, and that semen stains found on the victim’s nightgown were consistent with defendant’s blood type and secretor status. At habeas proceedings in federal court, the defense introduced considerable evidence pointing to the vic – tim’s husband as her killer, and showed through DNA testing that the semen on the victim’s nightgown came from her husband, thus destroying the prosecution’s argument that defendant had tried to rape the victim, dna fingerprinting & civil liberties • summer 2006 325 Margaret A. Berger the only motive offered for the crime. Sophisticated expert proof was offered to show that the victim’s blood had gotten on House’s blue jeans when it spilled while the blood samples and jeans were being sent for labora – tory analysis. An amicus brief by the Innocence Project argued that trial testimony asserting that the semen could have come from the petitioner was fraudulent because even pre-DNA blood serology showed that the semen could not have come from the petitioner. 73 After the district judge dismissed House’s habeas petition, a panel decision affirming the dismissal was withdrawn, and the case was heard en banc in the Sixth Circuit. The en banc majority of eight concluded that although House’s new evidence presented “a colorable claim of actual innocence,” he had failed to carry his Schlup burden of showing “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 74 The majority re – viewed all the evidence that implicated House which it found supported this conclusion; it did not discuss whether a juror would have had a reasonable doubt be – cause of the seeming lack of motive and the possibility that the victim’s blood on House’s blue jeans originated from a spill. Six of the dissenting judges found the new evidence sufficed to permit review of House’s under – lying constitutional claims, and that it also satisfied the requirements of “a truly persuasive demonstration of ‘actual innocence’” within the definition of Justice White’s concurring opinion in Herrera. 75 The final dis – senting judge would have granted a new trial. 76 Petitioners in cases in which the DNA evidence is truly exonerative need not worry about satisfying the standards of Schlup or Herrera because in those cases actual innocence is conclusively proven. But in cases like House in which the DNA evidence does not ex – onerate, the Supreme Court’s opinion in House will undoubtedly affect the state courts’ interpretations of the standards in their post-conviction statutes. At the oral argument of House in the Supreme Court there was no discussion of Herrera, and no suggestion that the Supreme Court should revisit what it said in Schlup, although there was disagreement as to what its test meant. Absent from the argument was any explicit suggestion of the unfairness of a rigid actual innocence standard in death penalty cases that looks at legal suffi – ciency rather than at the impact of the tainted evidence on the jurors. We know from looking at DNA exonera – tion cases that what marks them as out-of-the ordinary is that ultimately the defendants were extraordinarily lucky – lucky that biological evidence existed that could be tested, and fortunate that determined attorneys took their cases. But numerous other cases exist in which no biological evidence was available, or was never col – lected, or was lost or discarded. The evidence that was admitted in many of these non-DNA cases is beyond question just like the evidence that led to convictions in the exoneration cases: some eyewitness testimony, a little forensic evidence, perhaps some admissions or confessions. The DNA cases have taught us that all of this evidence may be suspect. Conclusion DNA post-conviction testing has altered our view of the death penalty, the operation of forensic laborato – ries and the reliability of forensic science. In addition, the numerous statutes governing DNA testing have changed the formal legal landscape. We do not yet know to what extent these developments will lead to future changes, such as a reshaping of Supreme Court jurisprudence. In showing us the criminal justice sys – tem’s failings, the DNA exonerations have unleashed a powerful potential for reform. To what extent our citi – zens, legislatures and courts will rise to this challenge remains to be seen.

Acknowlegement This article was supported by a grant from NIH (R01-HG002836).

References1. National Institute of Justice, Department of Justice, Post-convic – tion DNA Testing: Recommendations for Handling Requests (NIJ 177626, September 1999): 10, note 2. 2. Id., at 15-16.

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

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

5. Id., at iii. Petitioners in cases in which the DNA evidence is truly exonerative need not worry about satisfying the standards of Schlup or Herrera because in those cases actual innocence is conclusively proven. But in cases like House in which the DNA evidence does not exonerate, the Supreme Court’s opinion in House will undoubtedly affect the state courts’ interpretations of the standards in their post-conviction statutes. 326 journal of law, medicine & ethics S Y M P O S I U M 6. 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 K. Swedlow, “Don’t Believe Everything You Read: A Review of Modern ‘Post-Conviction’ DNA Testing Stat – utes,” California Western Law Review 38 (2002): 355-387.

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

8. Innocence Project , at (last visited February 24, 2006).

9. In the 1990s, death sentences numbered over 300 per year. See, e.g., U.S. Department of Justice, Bureau of Justice Statistics, Capi – tal 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).

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

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

12. A. D. Santi, “N. J. Lawmakers Suspend Death Penalty,” (Janu – ary 10, 2006), (Illinois and Maryland had also suspended ex- ecutions), available at (last visited March 21, 2006).

13. M. Glod and M. D. Shear, “Warner Orders DNA Testing in Case of Man Executed in ‘92,” January 6, 2006, Washington Post website, available at (last visited February 24, 2006).

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

15. R. A. Rosen, “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).

16. P. C. Giannelli, “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; P. C. Gi – annelli, “The Admissibility of Laboratory Reports in Criminal Trials: The Reliability of Scientific Proof,” Ohio State Law Journal 49 (1988): 671-701.

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

18. Committee on DNA Forensic Science: An Update, National Re – search 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.

19. M. A. Berger, “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. Depart – ment of Justice, 2002).

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

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

22. IN St. 10-13-6-14 (West 2003) (laboratory “must implement and follow nationally recognized standards for DNA quality as – surance 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.”) 23. ABA Approved Resolution Crime Laboratories and Forensic Evidence (2004) (“crime laboratories and medical examiner of – fices 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.”) 24. C. J. Ward, “The Future of DNA Testing and Law Enforcement,” Brooklyn Law Review 67 (2001): 249-255, at 253.

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

26. J. Yardley, “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); G. Puit, “Police Forensics: DNA Mix-Up Prompts Audits at Lab,” Las Vegas Review Journal (April 18, 2002).

27. “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 per – haps final case is still pending).

28. H. Aynesworth, “Houston DNA Lab Near ‘Breakdown,’ Investiga – tors 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); C. L. Jenkins, “Critical Audit Prompts Va. to Review DNA Evidence,” Washington Post, June 21, 2005, at BO5 (at least 160 cases to be reviewed).

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

30. B. Scheck, et al., Actual Innocence: Five Days to Execution and their Dispatches from the Wrongly Convicted (New York: Dou – bleday, 2000): at 246.

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

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

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

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

35. Committee on Scientific Assessment of Bullet Lead Metal Com – parison, Forensic Analysis Weighing Bullet Lead Evidence (Na – tional Academy Press, 2004). See M. O. Finkelstein and B. Levin, “Compositional Analysis of Bullet Lead as Forensic Evidence,” J ournal of Law & Policy 13 (2004): 119-42.

36. Associated Press, “FBI Stops Testing Bullets for Metal Match,” MSNBC website, September 1, 2005, available a t> (last visited February 24, 2006).

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

38. 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.”) 39. 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).

40. D. L. Faigman, “The Tipping Point in the Law’s Use of Science: The Epidemic of Scientific Sophistication that Began with DNA dna fingerprinting & civil liberties • summer 2006 327 Margaret A. Berger Profiling and Toxic Torts,” Brooklyn Law Review 67 (2001): 111- 125, at 116-18.

41. P. C. Giannelli, “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.”) 42. M. Saks and J. Koehler, “The Coming Paradigm Shift in Forensic Identification Science,” Science 309 (2005): 892-895.

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

44. See (an overview of A.M. Sackler, Symposium on Forensic Science: The Nexis of Science and the Law (last visited March 21, 2006).

45. 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).

46. See supra note 6.

47. 506 U.S. 390, 410 (1993).

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

49. 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. P. Neufeld, “Preventing the Execution of the Innocent: Testimony before the House Judiciary Committee,” Hofstra Law Review 29 (2001):


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

51. Supra notes 26-28.

52. See M. A. Berger, “Lessons from DNA: Restriking the Balance be – tween Finality and Justice,” in D. Lazer, ed., DNA and the Crimi- nal Justice System: the Technology of Justice (Cambridge: MIT Press, 2004): at 116-119; K. Swedlow, A State by State Review of Post-Conviction DNA Testing Statutes, Online Journal of Justice Studies, at (last visited February 24, 2006).

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

55. 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).

56. D. Borteck, 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.

57. (Ky Rev. Stat., ch. 4222.285 (2002). 58. B. Scheck, et al., supra, note 30, at 92 (convictions in 23% of DNA exonerations studied by the Innocence Project were based on false confessions or admissions).

59. 542 U.S. 600, 608-11 (2004). See R. A. Leo and R. J. Ofshe, “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.

60. 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.

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

62. M. A. Berger, supra note 52, at 116-18.

63. 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 evi – dence would demonstrate innocence on a more probable than not basis”). Cf. 725 Ill.Comp.Stat.Ann. § 5/116-3(c)(1) (“noncumula – tive evidence materially relevant to the defendant’s assertion of actual innocence even though the results may not completely exonerate the defendant.”) 64. 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.”) 65. See discussion in People v. Savory, 297 Ill.2d 203, 212-15) (2001).

66. 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).

67. 513 U.S. 298 (1995). 68. Id., at 37.

69. Supra note 47.

70. Supra note 67, at 316.

71. 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).

72. Supra note 66.

73. 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.

74. 386 F.3d 668, 683 (6th Cir. 2004).

75. Id., at 686-709.

76. Id., at 709.

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