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DNA Testing
Over the past few years hundreds of innocent people have been freed from prison thanks to DNA evidence. So why isn't it more widely available? 
Answer: because prosecutors and state governments tend to fight DNA testing requests tooth and nail. Defense attorney and civil libertarians are on the opposite side, of course, and shortly the Supreme Court will hear a case deciding whether they'll get their wish to make testing more widely available:
They are opposed by victims rights groups; the vast majority of states, which have a patchwork of laws granting DNA access; and the federal government. The governments say that creating a constitutional right to the testing would infringe on states' rights, overwhelm them with frivolous demands and create an endless right of appeal for those convicted of the most violent crimes.
Set aside the states' right argument for now. I'm more interested in the question of whether constitutional protections for DNA testing would, in fact, result in lots of frivolous demands and endless appeals.
If there were, literally, no restrictions at all, maybe that's what would happen. Maybe every con with time on his hands would demand test after test just for the hell of it. Maybe. But if the court required even a minimal showing of cause, wouldn't frivolous requests dry up? What's the point, after all? If you're guilty, then you know perfectly well that DNA isn't going to get you off the hook. So why bother?
That's why I've never found this argument very persuasive. Prisoners who know they're guilty have little incentive to demand DNA tests. Conversely, though, prosecutors have loads of incentive to deny DNA tests, even — or maybe especially — in cases where it might well prove wrongful conviction. This suggests that the court should adopt some kind of balancing test: not an absolute right to endless DNA testing, but at least a presumption in favor of it. Make the hurdle just high enough to deter the genuinely frivolous, but low enough that nobody has to rot in prison for years just because they didn't have access to a simple test. We are, after all, in favor of not imprisoning innocent people. Right?
DNA Tests - Mostly a good thing
I find it odd that prosecutors tend to favor extensive collection of DNA from anyone law enforcement has a brush with, but then wants to restrict the use of DNA evidence from defense cases.
It's a sword that cuts both ways.
And yes, there are people who don't care whether or not the people in jail are innocent or guilty - there mostly called local DAs, prison guards, and shareholders of the Prison Corporation of America and it's ilk.
If you're guilty
If you're guilty, then you know perfectly well that DNA isn't going to get you off the hook. So why bother?
No test is perfect. So even if you are guilty, it becomes like a lottery ticket. The chances may be wildly against you but if they are not zero and the cost to you is small enough then why not buy a ticket?
Nonetheless, I agree with Kevin that if some appropriate level of justification can be required, the test should be done.
So here's another problem
So here's another problem caused by those interested in the maintenance of status quo. Why do the solutions to so many problems in our land come squarely up against the interests of a select few? It makes me weary.
DNA to identify bugs to be crushed
Do you realize that posting anonymously comes 'squarely up against the interests of a select few'? It's hard for them to squelch you or squash you like a bug if they can't identify you. Don't be surprised if DNA tests are denied to the defense, but posting anonymously is challenged by the Right (why aren't they the Wrong?).
Of course everyone should have DNA testing or anything else available to them to prove their innocence. DAs who build careers on the broken bodies of innocent prisoners should spend the time in jail.
I wonder if the desire to
I wonder if the desire to make someone accountable for a crime (even if he may be the wrong person), is restricted to DA's. I sense that a lot of society feels this way (they just want to believe that the guy they got is guilty). Racial justice used to be a lot worse. A black man did the crime. So what if we convict the wrong black man, he had it coming because he was a member of the race.
Now, that said, I think DNA testing is pretty expensive, so we don't want to be doing it at state expense for minor offenses. I suspect it's aura of truthiness is greater than its actual ability to sort things out. I would think that in many cases where samples are contaminated, it might not be so clear. But, overall I think you have a good case.
states' rights
right, the states' rights argument, which is code for "we don't want to do it". why not make the same argument against fingerprints then, or *any* kind of science-based evidence? science is only valid in some states?
Endless?
I've never really understood the "endless appeals" argument. Either there is DNA evidence or there isn't. If there is, it either matches a suspect or it doesn't.
End of appeal.
The only real route to "endless appeals" would be if the police/DA began wholesale destruction of evidence to avoid testing.
yeah, i'm certainly in favor
yeah, i'm certainly in favor of more dna tests.
but this seems wrong:
"If you're guilty, then you know perfectly well that DNA isn't going to get you off the hook."
see, if you typed all the dna on my chair right now, you'd find a lot of people. spouse, kids, dog, dinner-guests. it can be hard to get a really clean sample.
it's like karog's lottery comment--sure, my dna may show up. but so may five other people's, and that may be enough to confuse the issue.
Of Course They Oppose Testing
They are opposed by victims rights groups….
I think that the growth in number and power of victim rights groups has been a destabilizing force in our criminal justice system. They seem to desire “closure” more than justice.
Test after test after test?
What? That doesn't even make any sense. Do people demand "test after test after test" of fingerprint evidence? With DNA, it's either the guy's DNA to a probablility of X-ty bazillion to 1, or it clearly isn't his. Furt her testing doesn't change that.
DNA samples can be contaminated in one way or another so that several people's DNA shows up, but pace Johhnie Cochran, they don't end up combining and creating someone else's DNA who wasn't anywhere near the scene. In a very few rare cases, DNA analysis isn't going to give you anything useful, but most of the time, it will definitively rule the guy in or rule him out.
The idea that DNA testing will somehow grossly stretch out the proceedings and produce endless delays and appeals is, IMHO, completely (and knowingly) bogus.
We are, after all, in favor
We are, after all, in favor of not imprisoning innocent people.
Um, no. Lots of putative liberals on your blogroll refuse to even consider that the policies they endorse encourage the imprisoning of innocent people. If you mention the possibility they rage against you as rape apologizer and wife beater.
For instance, we all want to stop rape, but statistical theory shows that a process to drive down false negatives will drive up false positives. But the Duke students? Well that was a positive learning experience and well, your blogroll says it better than I:
"In the meantime, I’ve been sort of casually listening to CNN blaring throughout the waiting area and good fucking god is that channel pure evil. For awhile, I had to listen to how the poor dear lacrosse players at Duke are being persecuted just because they held someone down and fucked her against her will—not rape, of course, because the charges have been thrown out.
Can’t a few white boys sexually assault a black woman anymore without people getting all wound up about it?
So unfair."
Remember Kevin, that was said AFTER the charges had been dropped.
Imprisoning the innocent? It's yet another way that modern feminist claims are not aligned with progressive liberalism, and I thank you for reminding us of that.
why endless tests?
It seems to me that you'd have your DNA tested once and then that data would be on file. Maybe you could be tested twice to confirm there was no mixup. After two identical results what's the point?
I don't know how expensive DNA testing is now but the price must be falling. There is talk now of being able to type the entire human genome for $5,000. I'm thinking that in five or ten years 8th graders will be decoding genomes for science fairs.
There is still the possibility for fudging. The police could have planted someone's DNA on scene or collected it elsewhere and said it came from the crime scene. Like that's never happened before.
How hard is DNA testing
How hard is DNA testing Kevin? I'd try to make it less expensive not more. I'd try to make it pro-forma and not have too many judges get in the way.
You want a test? You got it.
It's better that 10 guilty go free than jail one innocent. If that means DNA testing, it seems a small price to pay. Make it a dime a dozen.
So Jerry's a 10-to-1 guy, eh?
I'm more of a 6.7-to-1 guy myself.
(I know it's just a figure of speech, but it's always seemed so arbitrary to me. What about the poor 11th criminal who almost got away but didn't?).
If we re-evaulated the usefulness of minor drug laws, we'd free up a lot of time and capital in the justice system that could be used for fairly treating those accused of actual crimes.
The incentive question
"If you're guilty, then you know perfectly well that DNA isn't going to get you off the hook. So why bother? That's why I've never found this argument very persuasive. Prisoners who know they're guilty have little incentive to demand DNA tests."
Let me preface this by saying that I'm generally in favor of expanding access to DNA testing... but, as someone who handles prisoners' appeals for a living, I feel pretty confident in saying that there absolutely will be a huge surge in testing demands. Primarily, I think you're looking at the incentive question from the wrong direction. If you've spent the last 20 years in prison, you've got 20 more years left on your sentence, and all of a sudden you find out that you have a right to DNA testing, what's your incentive *not* to request it, even if you know you're guilty? If it proves conclusively that you're guilty, big deal - you're already in prison and you've probably already exhausted all your other routes for appeal anyway, so no harm, no foul. If it's inconclusive, though, you might be able to make some hay of the tests for another round of appeals/habeas petitions (even if they might turn out to be unsuccessful). And if nothing else, you've managed to keep yourself occupied for a few months. Basically, there's no downside from the prisoners' perspective, whether they're actually guilty or not (and don't discount the number of actually guilty people who are thoroughly convinced of their innocence - let's just say it's a non-negligible number).
Like I say, I'm generally in favor of expanding access. But I think you're right that there would have to be some sort of threshold standard that the courts could use to sift out the frivolous claims, and I think that standard might end up being somewhat more stringent than you might hope, especially given the sheer volume of frivolous claims that would be filed.
Answer: because prosecutors
Answer: because prosecutors and state governments tend to fight DNA testing requests tooth and nail.
Prosecutors do not care about justice, they care about convictions. That prosecutors do not want innocent convicts found and released with improved forensics is proof.
Who Doesn't Care if Innocents are Convicted?
Who doesn't care if innocents are convicted? Lots of cops, who mostly want to close cases by whatever means possible, so they can be promoted. Lots of prosecutors, so they can maybe run for Attorney General someday and maybe Governor, which will only happen if they have lots of scalps on their belts. And evidently lots of victims, or victims' families, who seem to feel gratified that someone was punished, even if it was the wrong guy.
Raise the stakes for testing
In order to limit frivolous DNA testing, a prisoner should have some stake in not making a demand for a test when he/she knows it will almost certainly come back positive, such as: extension of sentences, decreased chance of parole, moving to a less desirable facility or some other sanction. After all, demanding a frivolous test is a disruption.
And frankly, DA's who block DNA tests should also be sanctioned.
Costs of DNA tests
http://www.paysonroundup.com/news/2009/jan/31/dps_crime_lab_unveils_new_dna_test_process/
You´re moaning about $475? Or better said $8 million for a state?
Maybe even some more to enlarge capacity if needed?
I will never understand Americans!
By the way, nobody mentioned it yet. But if an innocent is arrested and prosecuted (because no DNA testing was done) the real criminal is still free. And probably pretty safe because the police will have stopped looking for another suspect.
Don´t you think any new victim/s might consider $500 or $1000 cheap if it helps to keep the police looking for the real criminal?
We are, after all, in favor
You're not from around here, are you?
-Antonin Scalia
And frankly, DA's who block
I'll see that and raise you.
DA's who get the wrong person convicted should be imprisoned for helping the actual criminal escape justice. They should be executed if it was a death penalty case, and an innocent(yeah, there's a lot of grey) person is put to death.
Make the police involved in investigating the case subject to the same standards, and you'll see a lot more use of DNA.
-kenga
Wow. As a prosecutor, I'm
Wow. As a prosecutor, I'm saddened by the misinformation and emotional vitriol in this post and comments.
In the vast majority of cases, prosecutors fight to get DNA testing done. In fact, every time I've seen a legal battle about whether to collect a DNA sample, it's been a prosecutor asking for it and a defendant refusing it. I don't work on death penalty cases (my state does not execute), but plenty of my cases do involve DNA. At the trial level it is invariably prosecutors who want the DNA.
Once there's been a conviction, a jury has already found beyond a reasonable doubt that the person committed the crime, with or without DNA evidence. Jurors these days tend to demand scientific evidence to convict anyone -- if there's not a video and/or DNA to begin with, an acquittal is likely. That's the "CSI effect" on today's juries.
Prosecutors don't get commissions for convictions. I prosecute because I don't like it when people victimize each other, and I want to do something about it. I want the right guy.
Notice that the Osborne case that sparked this discussion is a valid conviction: the victim identified him, his partner identified him, and he confessed. As soon as he got released for good time, he committed another felony. And: his defense attorney at the trial level (certainly after consulting with his client) declined the more accurate DNA test. Osborne is the right guy.
Furthermore, all but six states already give the defendant a right to post-conviction testing.
And by the way, the poster above who advocates giving the prisoner "some stake in the demand" for testing is advocating a horribly reactionary and unconstitutional idea: penalizing someone for their exercise of rights.
How it really works
Cops set up Prisoner's Dilemma situations all the time to get Suspect A to confess that he was the lookout while Suspect B stabbed the victim -- or vice-versa, they don't really care as long as one of them confesses. So, sometimes the lookout gets life for murder while the stabber gets 5 years because the stabber confessed first and blamed the lookout. Cops don't like a DNA test might because it might show that the guy who got life didn't hold the knife, ruining their confession.
But, the cops feel like they came close enough to justice, so why do a DNA test?
DNA Tests are not that expensive
I think DNA Testing should be done because the simple fact is that DNA Testing is not that expensive. Today you can get a commercial Paternity test for under $200, and the real cost for a forensic test (taking out the fact that unnecessary additional lab costs and stuff may inflate it) is actually under $100 for the facility doing it.
Also, if someone is unjustly incarcerated, that means that they are a drain on society for however long they are in there (and for quite a bit of time after probably). Now, if that person never went to jail, thanks to a DNA test (-$200) they will obviously continue to work and be part of society, which means they'll pay taxes (definitely over a measly $200), so YOU aren't paying the test,they are.
Do you know the cost of an average trial? $200 for concrete evidence is nothing compared to the costs in time and manpower a trial takes.