Lineups and the Expansion of DNA Databases

There is nothing wrong with “best practices” which certainly includes taping statements. I have purchased thousands of dollars of audio and video recording equipment for often tiny police departments in my county who simply cannot afford it. As a prosecutor I want the statement fully and accurately preserved or the defense attorney will infer dark doings.

But to punish often small under-funded police departments for not doing it is wrong. There have been some innovative suggestions for providing positive incentives if a statement is recorded – like a jury instruction that the jury should give extra weight to a statement that is recorded. In Oregon there is a highly cautionary standard jury instruction about any witness statement.

There are significant issues on so-called sequential line-ups, and a Chicago study that showed they were not only less reliable but also had higher false positives than the more traditional 6-person “throw-down,” which can be easily preserved for the jury to determine if the photos were unduly suggestive in any way.

The other issue is expanding DNA databases, as New York – on a bipartisan basis – just did.

Since DNA can now be collected relatively nonintrusively, there is no reason not to collect it in the same way as fingerprints – which might even include licensed professionals like lawyers, cops, and teachers. There should also not be prohibitions on “warm” or familial DNA comparisons if the real goal is to get to the truth.

We cannot avoid the starkly different roles of prosecutor and defense counsel. The former is obligated to seek justice, not just convictions, turn over anything even vaguely helpful to the defendant while a defense attorney is ethically bound to do anything short of suborning perjury to get their client acquitted.

Also from This Issue

Lead Essay

  • Learning What We Can from DNA by Brandon Garrett

    Professor Brandon Garrett discusses the strengths and weaknesses of DNA as evidence. DNA offers a high degree of certainty in the cases where it is available, but in many cases, like that of Troy Davis, the DNA evidence just isn’t there. Individual exonerations are nonetheless suggestive of a wider pattern of wrongful convictions throughout the criminal justice system. It is difficult to say how large this pattern is, but DNA evidence has certainly made us aware of certain problems that existed prior to its use. Does this increase or decrease our faith in capital punishment? And where will public opinion settle? Garrett asks but does not fully answer these questions.

Response Essays

  • Rightful Convictions by Joshua Marquis

    Joshua Marquis points out that prosecutors, not defense attorneys, first demanded the introduction of DNA testing. Defense attorneys fought it—until they realized that they could sometimes use the public’s confusion about the tests to produce doubt in jurors’ minds. Still, DNA secures many more convictions than exonerations. Taken as a whole, Marquis argues that DNA evidence shows our criminal justice system to have a vanishingly low rate of wrongful convictions. He readily grants that even a tiny number of wrongful convictions is too many, and of course we should not let the guilty go free. As a result, he recommends still more extensive DNA recordkeeping and testing.

  • DNA Reminds Us That to Err Is Human by Jeffrey Kirchmeier

    Jeffrey Kirchmeier grapples with the thorny, inescapable problem of human error. He notes that DNA evidence has offered us a way to test other forms of evidence, such as eyewitness testimony and police lineups. But he moves quickly from these to still harder questions. If jurors can err on matters that admit of an objective answer, then what of the subjective questions they must also answer? The choice between capital punishment and life in prison is itself one of these subjective decisions, and it too may be flawed. Unfortunately, we have no way to test it.

  • Some Historical Notes on the Problem of Capital Punishment by George H. Smith

    George H. Smith reviews some of the key philosophical questions that have been raised about capital punishment. He discusses the views of several thinkers, including Jeremy Bentham, Nathaniel Branden, and Immanuel Kant. He also references Cesare Beccaria, who doubted the social utility of the death penalty. Even if DNA does offer certainty in the matter of guilt, Smith suggests that there may be independent and controlling reasons to reject capital punishment.

The Conversation