The Innocence Project: Miscarriages of Justice and Wrongful Convictions Through the Use of DNA Testing - Research Paper Example

 1. Introduction The inclusion of scientific evidence in criminal trials has been controversial, often met with a judicial propensity against admission of such evidence due to perceptions of unreliability and jury confusion. Conversely, it is evident that the use of DNA testing evidence has been instrumental in addressing miscarriages of justice and wrongful convictions, particularly those based on eyewitness testimony. A prime example is the case of Ronald Cotton who served ten years for a wrongful conviction on grounds of eyewitness identification. Cotton’s case is referred to by the Innocence Project, which is a nationwide public policy orientated litigation body taking on cases geared towards addressing miscarriages of justice and wrongful convictions through the use of DNA testing (www.innocenceproject.org). The work of the Innocence Project has exonerated 242 wrongful convictions on grounds of DNA testing and a central aim of the project is to push towards inclusion of early DNA testing evidence in the criminal justice reform and implement safeguards to try and protect against future miscarriages of justice. Moreover, the work of the Innocence Project highlights the importance of opening up the criminal justice system towards inclusion of DNA testing evidence as the project’s work highlights how “DNA exonerations suggest that people of colour are more than twice as likely to be wrongfully convicted as whites” (www.theinnocenceproject.org). Indeed, Howitt (2006) refers to the work of the Innocence Project, which has found that two thirds of the 138 cases of DNA exonerated convicted offenders were involved in eyewitness identifications: “The innocence project deals with cases in which a conviction might be challenged on the basis of DNA evidence” (p.20). This paper critically evaluates the use of scientific evidence in criminal trials and mirrors the sentiment of the Innocence Project that the use of eyewitness testing, particularly from lineup identification parades, presses the need for prosecution and judicial mentality to reform evidence admission procedures within the criminal justice system. In considering this evidential issue, this paper undertakes a contextual approach in considering Ronald Cotton’s case. Accordingly, I shall firstly undertake a case study charting Cotton’s conviction to exoneration, followed by a discussion of the dichotomy between judicial perception of scientific evidence and the psychoanalytical perspective. It is submitted that this is imperative in highlighting the need for criminal justice reform as underlined by the work of the Innocence Project. 2. Ronald Cotton: Case Study 2.1. Facts If we consider the factual scenario, in 1984, there were two separate incidents of a defendant breaking into an apartment, severing the phone wires and sexually assaulting a woman during the course of robbery. In August, 1984, Ronald Cotton was charged and arrested for one of these sexual assaults and subsequently convicted of rape and burglary in January 1985. In a second trial in November 1987, Ronald Cotton was further convicted of both rapes and two counts of burglary in an Alamance County Superior Court sentencing him to 54 years. 2.2 Admission of Evidence With regard to the evidence at trial, Ronald Cotton’s alibi did not place him at the crime scene and was corroborated by his family members. However, the supported alibi was not admitted to the jury at trial. Additionally, the jury were denied admission of evidence that the second victim did not identify Cotton as her assailant in the police identification process. Notwithstanding these crucial points to Ronald Cotton’s defense, the prosecution’s case against Cotton was based on the following assertions: 1) One of the victims identified Cotton in both the photos and police lineup; 2) A flashlight owned by Cotton was very similar to the one used by the assailant; and 3) The rubber on Cotton’s tennis shoe was similar to the rubber found at the crime scene. 2.3. Appeal Process After the first conviction, Cotton filed an appeal in the North Carolina Supreme Court, which overturned the conviction as a result of the second victim picking another man out of the line up and the prevention of this evidence being heard by the jury. However, in November 1987 Cotton had been retried for both offences of rape and burglary and the second victim whilst not identifying Cotton in the line up identification determined that Cotton was in fact her assailant on a photo identification, which clearly raises issues as to the strength of evidence against Cotton and the veracity of eyewitness testimony. However, prior to the second trial, a convicted felon in prison for similar crimes confessed that he was in fact responsible for Cotton’s crimes to a fellow inmate. Notwithstanding, this confession was not admitted as evidence in the retrial and was refused admissibility by the superior court judge. This ultimately culminated in Cotton’s subsequent convictions for both crimes. In 1994, two new lawyers took over Cotton’s case and filed a motion for relief on grounds of inadequate appeal counsel along with a motion for DNA testing, which was granted. This resulted in the Burlington Police Department handing over all evidence that contained the assailant’s semen for DNA testing. A central problem was the fact that samples from one victim were too deteriorated to be conclusive however the samples from the second victim’s vaginal swab and underwear were PCR tested and showed no match with Cotton. Therefore the defense attorney requested that the results be sent to the State Bureau of Investigation’s DNA data base containing DNA patterns of convicted violent felons in North Carolina Prisons, which resulted in a match with the convict whose confession had been disallowed from being submitted as evidence in the first instance . As a result of the DNA test results the motion was filed to dismiss the charges and Cotton was cleared, pardoned and eligible for $5,000 compensation from the state, by which time Cotton had already served 10 and a half years of his sentence. 3. Commentary: Eyewitness Identification, Misconceptions of Scientific Evidence and Criminal Justice Reforms The Cotton case highlights the importance of DNA technology in the criminal justice system and in Connors’ “Convicted by Juries, Exonerated by Science” (1996), he refers in the preface to the message of the Attorney General that “the development of DNA technology furthers the search for truth by helping police and prosecutors in the fight against violent crime…….moreover…… DNA evidence – like fingerprint evidence – offers prosecutors important new tools for the identification and apprehension of some of the most violent perpetrators, particularly in the case of sexual assault”(p.iii). Nevertheless, Connors (1996) highlights the point as evidenced by the Cotton case that DNA aids are not infallible and therefore whilst DNA testing can be invaluable; the central issue is the quality and timing of such testing. For example, in the Cotton case, if the second swab had not proved to be useful, Cotton may still be serving his sentence. This in turn begs the question as to why the DNA testing evidence wasn’t admitted in the first instance and why inconsistent eyewitness testimony was chosen in precedence. Indeed, the Attorney General makes the point that high profile cases such as Cottons, whilst ultimately resulted in an overturned conviction due to DNA testing, nevertheless misses the point of the extent of the miscarriage of justice as wrongful convicts like Cotton “had served, on average 7 years in prison” (Connors, 1996, p.iii). Therefore the Innocence Project’s use of DNA testing in exonerating wrongful convicts simultaneously highlights the need for changes to the criminal justice system process as the use of DNA testing itself not a panacea. For example in the Cotton case the length of time had severely reduced the utility of the evidence and therefore it is vital to ensure that the “highest standards for the collection and preservation of DNA evidence; ensuring that the DNA testing methodology meets rigorous scientific criteria for reliability and accuracy; and ensuring proficiency and credibility of forensic scientists so that their results and testimony are of the highest caliber and are capable of withstanding exacting scrutiny” (Connors, 1996, iii). For example, Connors (1996) refers to a report commissioned by the National Institute of Justice, which reinforced the importance of timely use of DNA evidence and the role of science in the criminal justice system (p. iii) This proposition is further supported by the commentary of Edward Imwinkelried (in Connors, 1996), who argues that the case studies and examples of the Cotton case highlight the crux of question regarding admissibility of evidence and scientific evidence (p.xii). For example, most jurisdictions have been governed by the entrenched position against admissibility as a result of the narrow decision in Frye v United States ( 421 US 542 (1975)) where the court determined that admissibility of scientific evidence was only permissible on grounds that the nature of such evidence “had gained acceptance in the particular field in which it belongs” (421 US 542 (1975)). Moreover, judicial development since the Frye decision has remained reluctant to admit scientific evidence. Indeed, Connors (1996) highlights the fact that whilst the decision in Daubert v Merrell Dow Pharmaceuticals (509 US 579 (1993)) resulted in relaxation of the rigid Frye test; ultimately the result is that states are free and have wide discretion to determine admissibility of scientific evidence, and since 1995, Edward Imwinkelried comments that “States apparently remained committed to Frye” (in Connors, 1996, p.xii). This position is further confirmed by Howitt (2006) and therefore, overall there has been a very conservative approach to admissibility of scientific evidence, which the Innocence Project highlight has contributed to significant number of wrongful convictions as a result of alternative evidence preferences. Additionally, whilst the Daubert case marked a departure from the entrenched Frye test, the judicial extrapolations in the Daubert case provide insight into judicial rationale for refusing admittance of scientific evidence. For example, Mr Justice Blackmun highlighted that the criminal justice should be cautious with scientific evidence as “expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403….exercises more control over experts than over lay witnesses” (509 US 579 (1993)). However, Rogers and Ewing (1989) criticise the rationale for judicial reluctance to admit scientific evidence and comment that the “image of a spellbound jury mesmerised by…. A forensic expert is more likely to reflect…. fantasies than the…realities of courtroom testimony” (p.360). Moreover, the work of the Innocence Project in exonerating numerous wrongful convictions on grounds of scientific evidence highlights the problems of taking a restrictive approach to scientific evidence; which ultimately forces courts to rely on other evidence. Indeed, it is evident that the prosecution in Cotton case clearly placed conviction success over significant evidence that placed doubt over Cotton’s guilt. Indeed, in referring to the cases such as Cotton wrongful conviction, Edward Imwinkelried comments that “as the cases collected in this report demonstrate, when we subject new scientific techniques such as DNA typing to special admissibility rules, we force the courts to rely on inferior types of evidence, such as eyewitness testimony” (In Connors, 1996, xii). Indeed, the Innocence Project highlights that in the cases it took on along with case studies of wrongful convictions such as Cottons; without the DNA testing the defendants were convicted on the basis of eyewitness testimony. For example, in the case of United States v Wade (388 US 218 (1967)), Mr Justice Brennan highlighted the point that “the vagaries of eye witness identification are well known: the annals of criminal law are rife with instances of mistaken identification” (388 US 218 (1967)). As a result, it would appear from the work of the Innocence project and the 28 wrongful conviction cases studied by Connors (including the Cotton case), that the judicial propensity against the “science controversy” is outweighed by the fact by the “novel scientific technique of DNA typing” (1996, p.xii). Moreover, the Cotton case highlights the point that the criminal justice system needs to adapt and distinguish between the types of scientific evidence that is seeking to be admitted as evidence. To this end, Connors (1996) submits the following proposition when considering use of scientific evidence in criminal justice system: “Have the critics of scientific evidence proven that the types of testimony in question present a unique probative danger- or have they merely made that assertion? Further if we impose a unique restriction on scientific testimony on balance, are the courts more likely to reach just results -or are we condemning the courts to reliance on suspect types of testimony t hat call into question the caliber of justice dispensed in our courts?” (p.xiv). Similarly, Rowe highlights the importance of distinguishing between types of scientific evidence in admissibility considerations as opposed to imposing a dogmatic blanket ban, which has resulted in serious miscarriages of justice and abuse of human rights of wrongful convicts. In particular, Rowe observes that the criminal justice system should acknowledge the distinction between DNA testing and alternative methods of scientific evidence as “whilst these methods are in theory capable of greatly narrowing down the possible sources of biological stain evidence, they often fail to yield a result because of deterioration of the genetic marker. They even can yield completely erroneous results”(in Connors, 1996, p.v). In contrast to these other methods, Rowe emphasises the reality that “DNA profiling has significantly advanced the analysis of biological stain evidence. First, these methods are intrinsically more discriminating than the methods of genetic marker analysis heretofore used. DNA profiling is more likely to exonerate a wrongly accused suspect. Second, the DNA molecule is more stable than polymorphic proteins. Third, microbial degradation does not lead to erroneous typing results” (In Connors, 1996, p. xv). Moreover, this has been supported by the success of cases taken on by the Innocence Project, which heavily relies on DNA testing to overturn wrongful convictions. Therefore, DNA testing has been imperative in correcting injustice as highlighted by 242 convictions being overturned since the Innocence Project’s inception. Nevertheless, as highlighted by the Cotton case, the use of DNA testing is not foolproof and evidences the need to ensure that DNA testing evidence is incorporated as soon as possible in criminal trials to maximise utility. This proposition is further supported by Rowe’s comments that the National Institute of Justice report into the DNA exculpatory cases “raises several important issues that need to be confronted by the legal community, law enforcement agencies, and the forensic science profession” (In Connors, 1996, p.10). Indeed, the Innocence Project underlines the point that DNA testing itself does not resolve the flaws of the criminal justice system, it rather, provides “scientific proof of its existence, and illuminates the need for reform” (www.innocenceproject.org). The Innocence Project’s drive for reform is mirrored by the warnings of Rowe in underlining the flawed approach of prosecutors and the judiciary in rejecting DNA testing: “a number of cases in which … prosecutors went forward with criminal prosecutions when only minimal genetic marker data were available and critics of the DNA typing who have opposed the admission of any DNA evidence should ponder the likely consequences of such an absolute prohibition: Law enforcement agencies and forensic science laboratories would be compelled to revert to the older methods” (in Connors, 1996, p. xi). One of these “older methods” that Rowe refers to is eyewitness identification, which the Innocence Project highlights as being in need of reform to heighten accuracy of prosecutions within the criminal justice system. For example, in the Connors case, the victim Jennifer Thompson identified Cotton and his conviction hinged on this testimony. Barak (2007) refers to Jennifer’s comments during the trial that “It didn’t take me very long. It took me minutes to come to my conclusion. And then I chose the photo of Ronald Cotton. After I picked it out, they looked at me and they said, “We though this might be the one” because he had a prior conviction of the same …. Same type of circumstances sort of”(p.65). Cotton’s case symbolises the reality that there are often mistaken identifications, which in turn underlines the irony of the law enforcement’s scepticism with regard to the veracity of scientific evidence within the criminal justice system. For example, Barak (2007) suggests that the figures regarding mistaken identification are as high as 25 per cent. Additionally, Della Sala (2007) argues that “the research conducted over nearly two decades tells us that mistaken eyewitness evidence is the leading cause of wrongful convictions” (p.67). This is further supported by the Innocence Project’s drive for reform of the use of eyewitness testimony. The Project comments that notwithstanding the proven inaccuracy of eyewitness testimony, it remains the most common method of evidence used in prosecution. Furthermore, Della Sala (2007) highlights the point that “with the advent of new technologies, such as improved DNA testing and the rising number of post conviction DNA exonerations, technology is confirming what psychological science has been saying for the past hundred years about memory: that even witnesses…. Can be wrong”(p.67). Indeed, Cotton’s accuser Jennifer Thompson wrote to the New York Times and said “I was certain, but I was wrong….. If anything good can come out of what Ronald Cotton suffered because of my limitations as a human being, let it be an awareness of the fact that eyewitnesses can and do make mistakes….. I know that there is an eyewitness who is absolutely positive she saw Gary Graham commit murder. But she cannot possibly be any more positive than I was about Ronald Cotton. What if she is dead wrong?” (In Della Sala, 2007, p.67). Therefore, this highlights the weakness of accuracy of memory in trial and supports the Innocence Project’s drive towards reform of the use of eyewitness testimony as “if we continue to rely on common sense intuition rather than on scientific evidence, then we run the risk of living in a world where life and death decisions are based on whimsical feelings” Della Sala, 2007, p.73). The other side of the miscarriage of justice is that “eyewitness mistakes can contribute to victimisation” as the actual assailant Poole was able to commit several offences before he was finally caught. Additionally, Jennifer Poole had mistaken identification guilt (Ogloff, 2002, p.203) 4. Conclusion The above analysis highlights that the overwhelming cause of wrongful convictions within the criminal justice system has arisen from flaws in preferred evidence methods and the failure of the judiciary to accept the benefits of DNA testing. Moreover, the Innocence project’s groundbreaking use of DNA technology has resulted in significant overturning of wrongful convictions, which in turn has “provided irrefutable proof that wrongful convictions are not isolated or rare events but instead arise from systemic defects within the criminal justice system” (www.innocenceproject.org). To this end, the work of the Innocence Project has been instrumental in highlighting the deficiencies of alternative methods used in criminal prosecutions, in particular the use of eyewitness testimony. A significant problem in eyewitness testimony is the influence of memory on mistaken identity, which is compounded by lineup procedures. This in turn has fuelled reform of identification procedures in several jurisdictions including State of Wisconsin, State of New Jersey, North Carolina, Suffolk County and Santa Clara. However, whilst such reforms are welcome in implemented the much needed reform in procedure, states remain slow to implement DNA testing procedures and it is submitted that this is imperative as the sooner DNA testing is used in evidence gathering, the higher the likelihood that the quality of evidence will be useful. Moreover, the Innocence Project highlights that a move towards such reform is vital to prevent further miscarriages of justice and preserve equality within the criminal justice system. Bibliography Barak, G. (2007) Battleground. Greenwood Publishing Connors, Edward (1996). Diane Publishing Company. Della Sala, S. (2007) Tall Tales about the mind and brain: separating fact from fiction. Oxford University Press Howitt. D. (2006). Introduction to forensic and criminal psychology. Pearson Education Ogloff, J. (2002) Taking Psychology and the Law into the twenty first century. Springer Rogers, R. & Ewing, C. P. (1989). Ultimate Opinion Proscriptions: A cosmetic fix and plea for empiricism. Journal of Law and Human Behavior, Volume 13 December 1989, pp.357-374. www.theinnocentproject.org Read More