DNA Lessons Learned
Public Views Justice System as One Unit
We must learn from mistakes identified by our
justice system, acknowledge that the system is imperfect, and fix the
problems where we can. We are all in the justice system together and we
will all reap the benefits of positive change.
by Gerry
Mowris
WE WATCH WITH INTEREST AS the emergence of DNA testing causes
a shakeup in our criminal justice system. Suddenly we have a means of
testing physical evidence that can prove actual innocence. We must take
the lessons learned from DNA testing (namely, that our system isn't
perfect) and apply them to the rest of the justice system. It isn't
enough to say that we set an innocent person free using advances in
science; we have to acknowledge that errors caused the mistaken
conviction. It is our duty as lawyers to work to fix the errors.
If DNA evidence excludes someone, the excluded suspect (who may have
been convicted of the crime years earlier) can be exonerated. The U.W.
Law School clinical program, The Innocence Project, was able to set
Texas inmate Chris Ochoa free from a life sentence by showing, through
DNA testing, that he couldn't have committed the murder for which he was
convicted. In Madison, we had a case in which the police questioned a
young woman's claim of rape. Now that a match has emerged between some
physical evidence from the crime scene and DNA from a convicted rapist,
her claim of rape has been reopened and charges may be filed soon. The
former district attorney, now a judge, has had the courage to apologize
to the young woman for the way she was treated by the D.A.'s office and
the police.
We have taken the opportunity to use science to analyze some of the
results created by our system. We have corrected mistakes, set innocent
people free, and put some who have avoided responsibility for their
behavior on trial. Having accomplished these things, we congratulate
ourselves and claim victory. We honor the lawyers and scientists who
were responsible for the corrections, applaud their tenacity, and go on
about our business, often allowing underlying assumptions and methods
that led to the faulty convictions to continue. The public, on the other
hand, views errors brought forth through DNA evidence as blemishes on
our system.
Study and Fix Where the System Breaks Down
Peter Neufeld, one of the authors of Actual Innocence, urged us at
our Annual Convention to study mistakes and to find where the system
breaks down. It seems an obvious step, but often, we don't take the time
for study. If we are to hold up our system as an example for the world
to emulate, if we truly want to say our system is the best we can make
it, we must do more to correct its faults.
From the analysis of DNA cases, certain relatively clear "fixes"
stand out. Two methods commonly used by the American criminal justice
system have caused several of the faulty convictions revealed by DNA
testing. These methods could be corrected tomorrow.
Eyewitness misidentification. On its surface,
eyewitness misidentification seems to be a difficult problem to fix.
Psychological testing shows that we ask perhaps too much of crime
victims and witnesses when we ask them to identify their perpetrators.
Yet that same psychological testing reveals that we can eliminate a
great majority of misidentifications and not miss true positive
identifications by insisting on the use of a certain ID method: a serial
photo lineup. By requiring serial photo lineups rather than showing all
photos at once in a photo array, the percentage of faulty IDs drops
markedly, while the number of correct IDs is not greatly affected.
According to the psychologists, based on scientific studies, showing all
photos in an array makes a witness compare and feel compelled to choose
the photo that looks most like the true perpetrator. Viewing a series of
photos serially seems to eliminate the psychological need to pick
someone. Using an officer other than the assigned detective to conduct
the photo lineup also could help eliminate misidentifications.
Police interrogation abuses. A second common thread
running through the DNA exoneration cases is police interrogation
abuses. Initially, it appears that little can be done without
drastically impacting the effectiveness of how police solve crime. Yet
some police agencies have tried a simple, but extremely effective
correction: they record all interrogations. The experience of these
agencies has been enlightening. Initially, the police reacted with a
howl of outrage; however, after several months, they changed their tune.
They discovered that with the tape recordings, arguments and hearings on
their days off about what was said, whether Miranda was met, and whether
the confessions were voluntary were a thing of the past. What was viewed
as "too much to ask of us" became the accepted norm. No longer could a
suspect argue that he or she was abused or threatened or coerced. The
recordings resolved the disputes. The recordings also avoid the specter
of the police "feeding" information about a crime to a suspect so that
the suspect could "confess" to details that only the true offender would
know.
Although these two suggested changes involve law enforcement, lawyers
can and must play a role. We have learned through our work on the public
trust and confidence initiative that the public views the justice system
as one comprehensive unit. All the players exist on one continuum - from
law enforcement, defense attorneys, and prosecutors to judges, bailiffs,
clerks, and corrections officers. We are all in the justice system
together and we will all reap the benefits of positive changes.
It would take a good test case and several appeals to force these
changes by case law. However, our prosecutors could suggest that their
law enforcement agencies begin using these techniques, while others try
to get legislative or judicial changes. What is important is that we all
recognize and admit that mistakes have been made, and that we work
together to find the best ways to assure they are not repeated. If we
all work together, we can make some simple and effective changes that
will immediately improve our system. Let's do it!
Wisconsin Lawyer