Mark Kleiman is frustrated about the trend of prosecutors attempting to prevent criminal defendants from getting DNA tests they believe would exonerate them. The prosecutors argue that in many of these cases, the absence of DNA evidence wouldn't necessarily prove the defendant's innocence.
Maybe, but it seems like bad form for the prosecution to deny the defendant the use of a DNA test -- it's potentially a way to deny the defense exculpatory evidence, which would be illegal if the prosecution already had such evidence and was hiding it. That's why so many states have laws allowing the tests to go forward -- laws prosecutors tried to get around in at least one out of five cases involving defendants who were ultimately exonerated, according to the article in the Times. In one of the cases in question, the prosecutors argue that even if the defendant, who is accused of raping a 77-year-old woman, might not have committed the rape himself -- the victim claims there were two men -- he was involved. It's a bizarre excuse, since DNA testing might lead to the arrest of another suspect.
But another disturbing excuse is this one:
Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.Eyewitness testimony is among the most unreliable forms of evidence. Remember that scene in My Cousin Vinny where Joe Pesci unravels the tape measure to the back of the courtroom, at about the distance the witness claims she saw the suspects, and when Pesci asks the witness to identify how many fingers he's holding up, she can't? That scene is funny because it's kinda accurate. The Innocence Project, the group mentioned in the article as having exonerated more than 238 convicted felons through DNA testing, claims that eyewitness misidentification is the single biggest cause of wrongful convictions. There are a number of reasons why this is the case -- poorly done lineups, police shoehorning the descriptions of eyewitnesses to matching the suspect, the fact that people of different races happen to have a hard time identifying each other -- and many others.
Which is why, as one defense lawyer quoted in the article put it, you should just "do the test."
-- A. Serwer
