DNA in the Legal System: The Beefits are Clear, the Problems aren't Always

• Author: Jason Borenstein
• Position: Visiting Assistant Professor in the School of Public Policy at Georgia
• Pages: 847-868

Jason Borenstein is a Visiting Assistant Professor in the School of Public Policy at Georgia Tech. Dr. Borenstein is also the founder and editor of the Journal of Philosophy, Science & Law (www.psljournal.com), an interdisciplinary scholarly journal.

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The value of deoxyribonucleic acid ("DNA") technology in the criminal justice system should not be understated as it continues to be used as a tool to free wrongly convicted individuals and to provide leads in unsolved cases. Even though some see the use of DNA technology as a panacea that will cure the ills plaguing our courts, there are still lingering problems concerning the reliability and fairness of criminal proceedings, which should not be hastily glossed over. In this article, I will sketch some of the profound benefits that stem from the use of DNA evidence in the courts. However, the primary focus of this work will be to outline some of the difficulties associated with the use of DNA evidence.

I DNA Evidence: A Valuable Resource

The benefits emerging from the introduction of DNA-related technologies into the justice system are manifold. Cases where wrongly convicted individuals were set free as a result of DNA testing are well-documented.¹ Innocence projects across the United States have largely relied on DNA to exonerate defendants who have been wrongly incarcerated.²In addition, when DNA evidence is used to overturn a conviction, the process can reveal shortcomings associated with forensic techniques used in criminal cases. The use of DNA evidence has enabled the courts to identify other techniques and types of evidence that need to be refined or perhaps even abandoned. For example, DNA evi-Page 848 dence has played a key role in challenging dubious confessions³and uncovering flaws associated with eyewitness testimony.⁴Even techniques that were once believed to be immune to error, such as fingerprinting, have recently been questioned.⁵

DNA evidence has expedited the apprehension and prosecution of alleged guilty parties in cases where they had not yet been found (and may not have been otherwise) and where the statute of limitations is close to running out.⁶In recent years, "John Doe indictments" have occurred where a DNA profile is established and then an arrest warrant is issued for an unidentified suspect.⁷Increasing reliance on DNA databases has made it possible to match a suspect to a crime even when law enforcement officials did not have any clear leads.⁸For example, district attorneys in New York allege that they identified the perpetrator of a sexual crime that occurred eight years earlier through the use of a DNA database.⁹The police created a DNA profile of alleged perpetrator approximately three years before his identity was discovered. This kind of case illustrates that in some cases, DNA might be the only available evidence linking a suspect to a crime.

DNA testing has also been used to redirect investigative efforts away from a wrongly convicted individual to the actual perpetrator. For instance, DNA testing not only caused Earl Washington, Jr. to be pardoned, but it may have enabled law enforcement officials to identify the actual murderer of Rebecca Williams.¹⁰Washington was serving time on death row and lawyers had been working for over a decade to clear his name before the DNA test was performed.¹¹The hope is that DNA will continue be used in the aforementioned manner. This couldPage 849 help to increase the reliability of the justice system by freeing the innocent and by enabling law enforcement officials to identify and apprehend the real perpetrators.

II DNA Evidence: A Word of Caution

Although DNA evidence is generally trusted as being a key to solving criminal cases, it should not automatically be accepted as the ultimate safeguard protecting innocent individuals from being convicted. In most felony cases, biological samples are not an integral part of the evidence presented.¹²As a result, felony verdicts usually hinge on evidence that is not specifically connected to DNA, such as eyewitness testimony or a murder weapon. Evidence will often have to be weighed on its own merits without the help of a DNA test. While a DNA test may shed light on a case at a later point, the probative value of other types of compelling evidence must still be assessed. We must continue to evaluate whether other forensic methods are in and of themselves trustworthy, as there are many cases where DNA evidence is not available to establish a person's guilt or innocence.

As author Karen Christian astutely points out, even if DNA evidence is available, courts have struggled in their effort to determine how it should be weighed against other forms of evidence presented.¹³It must be kept in mind that when the results of a DNA test are discussed, judges and jurors should not only consider that evidence and categorically discount other forms of evidence such as eyewitness testimony, fingerprints, a proffered confession, and the defendant's alibi. The DNA evidence does not necessarily answer all of the key questions in a case. A DNA test might only place a defendant at the scene of a crime or show that he wore a particular piece of clothing, but that alone may not be enough to prove that the defendant performed the crime in question. For example, it is not only the issue of identifying the alleged perpetrator that can be crucial to a rape case, the issue of whether the parties consented to intercourse is of fundamental importance as well.¹⁴Page 850

Moreover, it is debatable whether jurors competently appreciate the nuances of the complex and sophisticated statistics used to link a particular suspect to a crime through the use of DNA.¹⁵

Prosecutors have had their misgivings about allowing DNA evidence to be admitted during trial and post-conviction proceedings, because that evidence might be given undue weight.¹⁶For example, one district attorney pressed forward with charges against a murder suspect even though the DNA evidence appeared to clear that person.¹⁷Further, in Godschalk v. Montgomery County District Attorney's Office',¹⁸prosecutors challenged the DNA testing of evidence because they claimed a voluntary and reliable confession was obtained from the defendant before trial.¹⁹Although one could debate how valuable the confession and other related evidence was in this particular instance, the Godschalk case crystallizes the fear that both prosecutors and defense attorneys alike have experienced, which is that "the DNA" will trump other forms of compelling evidence. Defense attorneys are concerned that jurors might convict defendants too hastily by overvaluing the DNA and not fully examining the other evidence presented.²⁰

On the other side of the coin, prosecutors may have too much discretion in determining whether DNA evidence is actually presented at trial. Christian suggests that "[i]f a prosecutor declines to release DNA evidence found at a crime scene, the option left to a defendant is petitioning a court and requesting an order for post-conviction test-Page 851 ing."²¹Arguably, obtaining post-conviction relief can place an undue burden on the defendant.²²Although DNA evidence might be overvalued at times, this concern is generally superseded by the need for the judge and jury to have access to the best information available before a verdict is rendered.

One court had to examine the issue of whether law enforcement officials can use DNA evidence deceptively in order to secure a conviction. In State v. Chirokovskcic,²³the New Jersey Appellate Division considered the admissibility of certain statements by the defendant where, in order to elicit a confession from the defendant, law enforcement officials deliberately created a fictitious lab report showing that the defendant's DNA was recovered at the crime scene.²⁴The court held that fabricating evidence in this circumstance was not appropriate and thus suppressed the defendant's statements.²⁵However, the court concedes that police officers have not been stopped categorically from using certain types of deceptive tactics, including verbal trickery.²⁶Hence, this case arguably leaves open the possibility that, in rare circumstances, DNA test results could be used in a deceptive manner during interrogations. Although this problem is not one only relating to DNA, it would be a troubling development considering how much a misleading DNA test could potentially influence a suspect's behavior.

III Admissibility, Weight, and DNA

Ideally, consistent standards would exist for determining whether DNA evidence should be admitted and what weight it should be afforded in relation to other types of evidence. However, there does not appear to be a consensus among the courts concerning how admissibility and weight concerns pertaining to DNA should be handled.²⁷Where the DNA tested does not match the defendant's DNA, courts have struggled to define how much legal significance or weight to attributePage 852 this finding. A defendant should not be immediately exonerated if it is discovered that the DNA found at a crime scene and the defendant's DNA does not match. It should not be hastily and invariably assumed that a "non-match" is sufficient to resolve whether a defendant is innocent.²⁸

Whether a non-match establishes the defendant's innocence largely depends on how much probative value the non-match is given.²⁹For example, in People v. Savory³⁰the defendant petitioned to have a bloodstain tested on trousers that were submitted into evidence.³¹The court concluded that even if a DNA test excluded the defendant, it would not be "materially relevant" to his claim of...