The Evidence of Things Not Seen†:
Non-Matches as Evidence of Innocence
James S. Liebman, Shawn Blackburn, David Mattern & Jonathan Waisnor
ABSTRACT: Exonerations famously reveal that eyewitness identifications,
confessions, and other “direct” evidence can be false, though police and
jurors greatly value them. Exonerations also reveal that “circumstantial”
non-matches between culprit and defendant can be telling evidence of
innocence (e.g., an aspect of an eyewitness’s description of the perpetrator
that does not match the suspect she identifies in a lineup, or a loose button
found at the crime scene that does not match the suspect’s clothes). Although
non-matching clues often are easily explained away, making them seem
uninteresting, they frequently turn out to match the real culprit when
exonerations reveal that the wrong person was convicted. This Article uses
“non-exclusionary non-matches” and what would seem to be their polar
opposite, inculpatory DNA, to show that: (1) all evidence of identity derives
its power from the aggregation of individually uninteresting matches or
non-matches, but (2) our minds and criminal procedures conspire to hide
this fact when they contemplate “direct” and some “circumstantial” evidence
(e.g., fingerprints), making those forms of evidence seem stronger than they
are, while, conversely, (3) our minds and procedures magnify the
circumstantial character of non-exclusionary non-matches, making them
seem weaker than they are. We propose ways to use circumstantial matches
and non-matches more effectively to avoid miscarriages of justice.
† See JAMES BALDWIN, THE EVIDENCE OF THINGS NOT SEEN (1985).
Simon H. Rifkind Professor, Columbia Law School. Thanks to Alexandra Blaszczuk,
Leslie Demers, Robert King, and Abshir Kore for superb research assistance. This Article is
dedicated to David Baldus, who until his recent death was the Joseph B. Tye Professor of Law at
The University of Iowa. As a pioneer in bringing the disc ipline of science and rigorous
inquiry—and the courage to confront the facts as best we can discern them and as troubling as
they may be—to the analysis of the operation of the criminal justice system, Professor Baldus
was an inspiration for this Article and for all of our work. We are deeply saddened by his death.
J.D., Columbia Law School, 2011.
J.D. Candidate, Columbia Law School, 2013.
J.D., Columbia Law School, 2012.