DNA Lessons Learned
Public Views Justice System as One Unit

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!