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By Michael White | June 19th 2009 08:00 AM | 10 comments | Print | E-mail | Track Comments
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About Michael White

Welcome to Adaptive Complexity, where I write about genomics, systems biology, evolution, and the connection between science and literature, government, and society.

I'm a biochemist


... Full Bio

That DNA evidence that could exonerate you? You don't have a right to it, says the US Supreme Court.

Actually, not being a lawyer or constitutional scholar, I don't know what kinds of evidence you have a constitutional right to when you go on trial, so I'm not going to comment on the correctness of the decision. But legal scholarship aside, two things are obvious:

1) When we try someone for a crime, we want the best, most reliable evidence possible. It's probably reasonably safe to say that most people with at least some wisps of sanity would like our criminal justice system to convict the guilty and acquit the innocent.

2) DNA evidence, (when analyzed and used properly), can be incredibly powerful. The science of forensics is unfortunately a scientific backwater, which needs an influx of talented researchers. (Looking for a job while the economy is in the dumps? Try grad school in forensics!) However, DNA evidence can be incredibly powerful, because the hundreds or thousands of base pairs that you can test add up to an irrefutable signal - one orders of magnitude stronger than what you get from fingerprints. Nobody in the world, (not even in your monozygotic twin, apparently) has the same DNA you do, and no subjectivity at all is involved when we really want to distinguish your DNA from that of another person - you just read out the A's, T's, G's, and C's, and they either match or they don't. I can't think of any other physical trait that is equally unambiguous.

So, instead of arguing over whether we should include DNA evidence or not, we should be beefing up the standards for evidence collection and DNA analysis protocols (because, in spite of the potential of DNA evidence, it can be used incorrectly, which of course leads to controversy in court), and then requiring DNA testing to be used in any case where it is available - a prosecutor, who may be more personally invested in getting a conviction, even if it's not an accurate one) should not have any leeway to decline such evidence.

If we ignore DNA, we're willingly turning a blind eye to an extremely informative form of evidence.




DNA Fingerprinting, courtesy of PaleWhaleGail vis the Wikimedia Commons




Comments

Gerhard Adam's picture
Actually, not being a lawyer or constitutional scholar, I don't know what kinds of evidence you have a constitutional right to when you go on trial, so I'm not going to comment on the correctness of the decision.


What does that say about our society when one needs to be a lawyer or constitutional scholar to understand the "rights" we're supposed to intrinsically possess?

adaptivecomplexity's picture
I would like to agree, but I think it's a philosophically tricky issue in 2 respects:
1) living in a society, in a community, involves trade-offs between freedom to do whatever you want and restrictions necessary in order for the rights of others to be preserved, or simply in order for us to live together in peace. In this context, defining which rights we should have is not a trivial matter.

2) Whatever the ideal solution to problem 1) is, the Constitution is the supreme law of the land, and how to interpret that is also not trivial. Original intent? How do you ascertain the original intent, and did the framers originally intend for us to use original intent as the interpretive guideline in the first place?

For example, as obvious as it is to me that the rights of the mother win out over the rights of an 8-week old embryo, it's just as obvious to a devout Catholic that the rights of even an 8-day-old embryo win out over the rights of the mother. It's unfortunately not simple.


Gerhard Adam's picture
Actually it's not that difficult.  The difficulty is an artificial one precisely because the "powers that be" don't want to pay for it.  In truth, there are no trade-offs in determining guilt or innocence.  If that cannot be unequivocally determined, then there should be an avenue available whereby new evidence can be examined to determine if it is exculpatory.

There is no excuse for an innocent person spending one minute longer behind bars when the means exist to exonerate them.  That is a minimal moral obligation that society owes when it wants to reserve the right to punish criminals to itself.

I can appreciate the fact that living in a society requires compromise, but there can be no compromise when society sets itself up to exact punishments (esp. the death penalty) and then doesn't want to do the work to prove its accusations.  Similarly justice isn't a matter of opinion.  For every innocent person that is imprisoned, there's a guilty one that got away with it.  Any society that accepts that kind of legal rationalization is aberrant.

I can also appreciate the fact that the system will never be perfect and that errors occur.  However, it would be unconscionable to use that as excuse simply because we don't want to be bothered with the additional time and expense  to evaluate new evidence.

adaptivecomplexity's picture
In truth, there are no trade-offs in determining guilt or innocence.  If that cannot be unequivocally determined, then there should be an avenue available whereby new evidence can be examined to determine if it is exculpatory.

When it comes to evidence in a criminal trial I agree there, but issue #2, constitutional interpretation still remains - in particular the issue of 'incorporation' - the applicability of various clauses of the constitution to the states. It's an issue I intentionally dodged. (Because, more than anything else, I'm lazy.)

Gerhard Adam's picture

The Constitution guarantees "due process", therefore anything less than that is also a legal dodge.  I understand that you're not the spokesman for this, so these comments aren't really a challenge to you.  However, I would like to believe that there are few individuals that think it's OK to imprison people because it's convenient, cheap, or because we're too lazy to process evidence.

The Constitution is also just a document, so if it were to be inadequate in this regard, then we need to make it adequate.  It isn't the divine word of God.

The law serves only one purpose, and that is to define the retribution that society can exact from individuals that violate its rules.  The least we should ask, is that society be sure who the guilty party is.



adaptivecomplexity's picture
The Constitution is also just a document, so if it were to be inadequate in this regard, then we need to make it adequate.  It isn't the divine word of God.

Certainly. And due process is actually one area where it has changed, via the 14th amendment and the long development of the doctrine of incorporation:
Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.


Whether the notion of due process in the federal constitution applied to the states was for a long time a matter of dispute. I know you're not writing this to challenge my post. As interested as I am in constitutional issues, and as much as I agree with you that it's crazy to allow our legal system to ignore easily obtainable, informative evidence, I purposely refrained from critiquing the Supreme Court decision because the history of incorporation and due process is somewhat complicated.

There have been a lot of surprisingly controversial issues throughout US history that in my view thoroughly violate the spirit of the Bill of Rights - like bans on interracial marriage and on contraception, (not to mention all sorts of other issues that relegated blacks to an inferior status, even after slavery ended).  I've got plenty of opinions on what the constitution should say, but I generally hold back from arguments about what it's current text means.


logicman's picture
This looks like a 'floodgate argument' for denying justice: if we grant justice to one innocent person, then we have to open the floodgates and let the courts be swamped with appeals from all of the thousands of other innocent people in prison.  We can't allow that: it would totally disrupt our golf schedules.

adaptivecomplexity's picture
In that case, you focus on the most urgent appeals first: capital cases, where the punishment is absolutely irreversible.

Gerhard Adam's picture
I can't think of anything quite as Orwellian as being concerned about "productivity" in the legal system.

logicman's picture
I can't think of anything quite as Orwellian as being concerned about "productivity" in the legal system.

You should check out the UKs Criminal Cases Review Commision, Gerhard.  They are very proud of their case preview system, which I would call a blocking filter.  Instead of looking for reasons to accept applications, they focus on reasons to reject them.  Further, although the law requires that three commisioners must agree before a case can be referred to court, the courts have ruled that the converse does not apply: any member of their office staff can reject an application for review.  Just imagine the revolution in the streets if any member of a court's office staff could deny access to justice!

Justice in the UK is a power struggle between the judiciary and the executive to see which of the two bodies can deny access to justice to the most citizens.

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