By John Morgan, Deputy Director for Science and Technology, National Institute of Justice, Washington, D.C.
he Department of Justice (DOJ) has initiated a sweeping set of programs to identify the factors that can lead to a wrongful conviction, including efforts to help state and local law enforcement agencies address the possibility that someone may have been wrongfully convicted in their jurisdiction. Through the National Institute of Justice (NIJ; the research and evaluation agency in the Office of Justice Programs), DOJ is assisting states in reviewing their convictions in certain serious violent crimes to find any cases where DNA evidence might prove actual innocence and lead to exoneration.
In 2008, NIJ awarded nearly $8 million to five states—Arizona, Kentucky, Texas, Virginia, and Washington—to identify eligible cases and fund postconviction DNA testing. If DNA evidence collected during the investigation of these cases still exists but either was not tested or was tested using a less definitive test than science now offers, individuals who were wrongfully convicted may be exonerated. As these five states perform a thorough review of these cases, everyone the law enforcement community, victims, prosecution and defense lawyers, and the general public—will surely gain greater confidence that they have done all they could to resolve serious, violent crimes accurately.
Scope of the Problem
How big is the problem? The Innocence Project, affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York, is a national organization that has used DNA testing to exonerate the wrongfully convicted. According to the Innocence Project, 234 individuals have been exonerated as a result of DNA testing, including 17 who served time on death row.1 Each year in the United States, roughly 20 people are exonerated, a small number given the hundreds of thousands of cases handled by the criminal justice system annually.
There have been significant barriers to discovering how many wrongfully convicted people might be exonerated through DNA testing. In many cases, biological evidence is not available; many times, even if DNA evidence does exist, the testing would not support an exoneration, and the conviction would not be changed. Another hurdle is that DNA testing cannot take place if a case has not been reviewed to determine if exoneration is possible.
In cases that meet this standard during review, it is also necessary to find the relevant biological evidence. As most law enforcement officers know, evidence storage and tracking can be a challenge for underfunded departments. Even when biological evidence has been retained, it may not be suitable for DNA testing even with the many advances in DNA forensics.
Finally, even if investigators in the original case had access to DNA technology, new, more definitive technologies may now be available. Needless to say, DNA testing can reveal actual innocence or confirm guilt.
NIJ is committed to giving the criminal justice community resources it needs to clear some of these hurdles. The Institute has released a new solicitation intended to fund additional states (or local agencies working through their state administering agencies) to participate in the postconviction DNA testing program.2 To help those who want to build a coordinated postconviction review team, NIJ recently hosted a Postconviction DNA Case Management symposium in collaboration with the American Judicature Society, the Innocence Project, the National District Attorneys Association, and the National Association of Criminal Defense Lawyers. This first-of-its-kind symposium brought together police, prosecutors, defense lawyers, and forensic scientists from across the United States to identify strategies to build and manage postconviction review programs successfully.3
NIJ has two publications that are useful to those who are interested in this issue. Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence after Trial provides recommendations to help prevent wrongful convictions, including the use of DNA and other forensic techniques.4 It also provides case studies and other assistance for the development of postconviction efforts that are still relevant today. NIJ has also published Postconviction DNA Testing: Recommendations for Handling Requests, which provides a framework to states and other jurisdictions that want to establish a postconviction review program.5
More recently, the five states that received awards from NIJ under the postconviction program have developed successful models for other jurisdictions. Their work may serve as guidance for other states that want to participate in the NIJ program. For example, each of these states allows for postconviction DNA testing. They also work to preserve biological evidence in all relevant cases. All of this is crucial to building a successful, substantive postconviction program.
And, in an important departure from previous practice, these five states are actively examining old cases without waiting for a defense lawyer or an inmate to initiate the process of review.
In Arizona, the Arizona Justice Project, housed within the Sandra Day O’Connor College of Law at Arizona State University, plays a central role in the NIJ-funded program. The founder of the project, attorney Larry Hammond, is leading a team in establishing critical collaborations with other stakeholders in the state. For example, Kent Cattani, chief counsel of the Capital Litigation Section at the Arizona Attorney General’s Office, has worked with Hammond for many years on policy issues. Cattani participated in the development of the grant proposal to NIJ, particularly with respect to specific legal requirements for states that receive funds under the federal program. Arizona’s state administering agency, the Criminal Justice Commission, also worked closely with the Arizona Justice Project and the Arizona Attorney General’s Office to develop the grant proposal into a sustainable project that could serve as a national model.
The Arizona Justice Project has now identified more than 5,000 people in the state’s prisons who may qualify for postconviction review. The vast majority of these cases will not qualify for DNA testing because the individuals cannot be exonerated using DNA technology or other means. To find those cases that are amenable to further review, local officials are visiting each prison and briefing inmates on the postconviction DNA testing issue and how their program works. When the Arizona Justice Project identifies cases in which biological evidence may be available for testing, the Arizona Attorney General’s Office will work with local prosecutors and law enforcement agencies to locate and obtain the evidence for testing. It is expected that the Arizona program will review between 100 and 200 cases during the 18-month grant period. Of these, less than half are likely to result in actual DNA analysis.
In Virginia, it was discovered that portions of stains (that is, cuttings from forensic evidence) were maintained in crime laboratory case files dating back to the 1970s. This has provided Virginia with a unique opportunity to be able to perform DNA testing on cases where the original evidence was thought to have been destroyed long ago. An initial examination of 31 cases resulted in DNA test results, which supported two exonerations. With the support of the largest award under the NIJ program, $4.5 million, Virginia is expanding this testing and is systematically reviewing 2,200 cases and reanalyzing over 5,000 samples from these old cases. In most of these cases, the evidence was analyzed using the best available technology at the time; however, the NIJ grant will allow Virginia to use advances in DNA technology to see if additional information may be gained.
The Arizona and Virginia programs are being independently evaluated by researchers supported by NIJ. Among other issues, the evaluations will attempt to identify connections between case characteristics and the likelihood that DNA testing would exonerate a convicted defendant. The findings are expected in late 2010.
Lessons to Be Learned
In addition to the funding of postconviction programs, NIJ also plans to initiate studies to find what lessons can be learned from exonerations. Although prior studies have focused primarily on the judicial process, the Institute anticipates that it will be able to study all exonerations to date in detail to understand the variety of factors that may have played a role in a wrongful conviction, such as inaccurate eyewitness testimony, incorrect forensic testing, inadequate legal counsel, and false confessions.
For law enforcement agencies, wrongful convictions can offer a unique opportunity to learn what can be improved in current investigative methods. It is already known, for example, that certain types of eyewitness testimony may tend to be inaccurate, especially cross-racial identifications of strangers. In many exoneration cases, these types of identifications have played a critical role. But many cases were based on testimony from those who knew the suspect or the victim. Others were based on evidence that appeared to be incriminating but, in retrospect, was not definitive.
Sound investigative techniques are at the heart of good police work. When offenders and accomplices try to mislead investigations and facts are sometimes hard to come by, investigators will sometimes be led down wrong paths. NIJ hopes that an in-depth study of wrongful convictions can lead to a better understanding of how investigations may go wrong. It may be possible to answer some important questions:
- How was potentially exonerating evidence treated during the investigation?
- How did police investigators identify the suspect who was wrongfully convicted?
- What forms of evidence did investigators collect?
- Why did investigators focus on one person over another?
Answers to these questions may help to prevent more wrongful convictions, and they may also lead to more effective methods to investigate crimes and improve the number and the accuracy of clearances.
Law enforcement leaders are working to understand and address the postconviction DNA testing issue. “In my 38 years in policing, I have never met an officer who has not wanted to put the right man in prison,” said Peter A. Modafferi, chief of detectives in the Rockland County, New York, District Attorney’s Office. “If a postconviction review program can help our nation’s law enforcement community ensure that this is done, I believe it is worthy of support.” ?
1Innocence Project, “Fact Sheet,” http://www.innocenceproject.org/Content/351PRINT.php (accessed March 13, 2009).
2The solicitation is available at http://www.ojp.usdoj.gov/nij/funding/welcome.htm.
3The symposium was videotaped and is available at http://www.dna.gov/postconviction/.
4Edward Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence after Trial, National Insitute of Justice Research Report, June 1996, http://www.ojp.usdoj.gov/nij/pubs-sum/161258.htm (accessed March 13, 2009).
5National Commission on the Future of DNA Evidence, National Institute of Justice, Postconviction DNA Testing: Recommendations for Handling Requests, NCJ 177626, September 1999, http://www.ncjrs.gov/pdffiles1/nij/177626.pdf (accessed March 13, 2009).