DNA and Eyewitness Evidence

Synchronicity is a fancy Jungian term for meaningful coincidence. Tens of thousands of us were introduced to it a quarter century ago by the rock musician Sting and his band, The Police.

I’m no Sting, but in the last two days, with Father’s Day weekend approaching, I’ve had occasion to follow some of the latest legal developments involving DNA evidence. Of course, the end of the Supreme Court term typically falls around Father’s Day, so a major ruling coming down this time of year is hardly a surprise. But Jungian concepts are flexible, and the Court's ruling is indeed meaningful — especially if you’re a criminal defendant in Alaska, Oklahoma or Massachusetts, the three states lacking laws providing access to post-conviction DNA testing.

In the Osborne case, the Supreme Court ruled that Alaska authorities did not violate the constitutional rights of a man convicted of rape when they refused to allow him to test the DNA evidence that might have overturned his conviction. The Innocence Project has used this type of evidence to successfully reverse over 240 convictions around the country in recent years — a major shock to a justice system whose claims to legitimacy depend on its ability to punish the guilty and spare the innocent.

DNA testing technology has become more sophisticated since 1993, when the sexual assault that Alaska prosecutors charged Osborne with occurred. Though a preliminary test showed a match between Osborne's DNA and DNA taken from a condom that had belonged to the victim, it was an imprecise test and approximately 15-16 percent of African-American men would also have been a match. When the case came to trial, Osborne’s attorney chose not to seek an independent, more precise test. The defense attorney feared (or at least claimed) that it might provide stronger evidence of Osborne’s guilt.

That strategy didn’t work. And yesterday, by a 5-4 vote, the Supreme Court said that William Osborne has no constitutional right to have DNA testing done after his conviction.

Attorney General Holder responded to the Court’s decision quickly. He pointed out that the Obama administration supports defendants’ access to DNA evidence “in a range of circumstances" and that federal law has guaranteed access to it in federal cases since 2004. As Peter Neufeld of the Innocence Project noted, however, the decision will severely impact people in the three states that do not have laws allowing defendants to obtain DNA testing.

Today, a day after the Supreme Court’s DNA ruling, I attended a CLE on eyewitness identification. The presenter, Jeanne Schleh, a former assistant county attorney in Ramsey County, Minn., noted in one of her first Powerpoint slides that virtually all of the DNA exonerations of wrongfully convicted defendants were in cases with faulty eyewitness evidence.

Issues involving eyewitness evidence have been on my professional radar since I was a third year law student. In 1986, I edited a lead article for the Valparaiso University Law Review entitled “Trial by Jury: Reflections on Witness Credibility, Expert Testimony and Recantation,” by Elaine D. Ingullli.

Ms. Ingulli began the article by examining a case in Cook County, Illinois in which a man named Gary Dotson sought a new trial after the alleged witness recanted, saying she had perjured herself at trial. Ingulli rightly raised broad issues about the justice system's (arguably excessive) dependence on the evaluation of live witness testimony by juries to get at the truth.

When cases like Gary Dotson's occur today, DNA tests can play a key role. But even today, eyewitness evidence remains fundamental to the work of law enforcement agencies. Testing has become easier, but the United States is not one big DNA lab, and gathering evidence from human witnesses is still a basic building block of police work.

The CLE I attended outlined how Ramsey County (MN) has changed its identification procedures. The presenter began by showing this video, produced by Gary Wells, a psychology professor, to illustrate how tricky it can be trying to make a positive ID based on a fleeting view of someone for perhaps only a matter of seconds.

The “60 Minutes” program on the CBS television network also explored the accuracy of visual memory recently, focusing on a rape case in North Carolina in which a black man was wrongfully imprisoned for eleven years before a white woman’s accusations were disproved by DNA evidence.

Following a national trend, Ramsey County has moved away from traditional “lineups,” which typically required enlisting jail inmates and maybe a few stray volunteers. Instead, best practices are now to use “blind” (and possibly computer-based) photo displays where the administrator doesn’t even know who the suspect is.

“If we share this nightmare, we can dream,” sang Sting in “Synchronicity I.” Being imprisoned when DNA evidence might exonerate you would be a nightmare. The dream remains, however, of a criminal justice system adaptable enough to include state-of-the art science when that is in the interest of justice.