DNA evidence, wrongful convictions and wrongful acquittals

28 Aug 2006

The retention of DNA and other forensic evidence following the completion of the trial process raises many issues for the criminal law. On one side, is ‘fresh’ DNA or other evidence to be used by the prosecution to mount an appeal against what is perceived to be a wrongful acquittal, thereby transgressing the rule against double jeopardy? Conversely, is such evidence to be used to prove the innocence of a wrongfully convicted person? The problems involved in equating wrongful acquittals and wrongful convictions are discussed by Gareth Griffith and Lenny Roth. The paper’s main findings are as follows:

· Both sides to the DNA evidence equation are live issues in the contemporary debate, federally and for the States. At the Commonwealth level, Attorney General Ruddock is reported to favour the abolition of the double jeopardy rule by the adoption of legislation making it mandatory for Crown law officers to preserve DNA evidence ‘in serious cases even after the appeals process has been exhausted’. In 2003 the Australian Law Reform Commission recommended the ‘long-term retention of forensic material found at the scene of serious crimes to facilitate post-conviction analysis’. Mr Ruddock is reported to be ‘keen to have the recommendations implemented’. (p 2-3) · At the State level, the NSW Attorney General Bob Debus has indicated that legislation is to be introduced affecting both sides of the DNA evidence equation, with a spokesman saying that ‘the Government supports retention of DNA evidence after the appeals process has been exhausted, and the Government is also drafting legislation for the retrial of someone after a DNA review’. On 15 July 2006 it was confirmed that legislation would be introduced to re-establish the NSW Innocence Panel, which is to be called the ‘DNA Review Panel’. (p 3-5)

· In the last 20 years, DNA evidence has increasingly been used in criminal investigations and trials in Australia and overseas. DNA profiling is often used to compare DNA deposited on a victim or at a crime scene with a DNA sample taken from a suspect. If the two samples do not match, they did not come from the same source. If the two samples do match, this is strong evidence that they came from the same source but it is not conclusive. It is also noted that the reliability of DNA evidence can be affected by contamination, lab error, and planting. (p 6-12) · Laws were enacted in NSW in 2000 that allow police to take DNA samples from suspects, serious offenders and volunteers. These laws also allow DNA information to be stored on a DNA database, and for certain types of DNA information on the database to be matched (eg matching of a crime scene profile with the profiles of serious offenders). Since 1998, attempts have been made to establish a national DNA database but this has been delayed because of a lack of uniformity throughout Australia in laws governing the collection and use of DNA samples. (p 12-18) · With reference to DNA exoneration cases, the term ‘wrongfully convicted’ tends to refer to those who are ‘factually innocent of the crimes for which they have been convicted’. Viewed in this light, wrongful conviction cases are a distinct class, not to be confused with the broader category of miscarriages of justice. (p 20-21) · Miscarriages of justice and wrongful convictions alike are the products of many diverse causes, often unrelated to DNA evidence. DNA exoneration cases are but one class within the broader category of wrongful conviction cases. ( p 21-22) · As at 31 July 2006, 183 people have been exonerated in the United States due to DNA analysis. (p 22) · The UK’s Criminal Cases Review Commission’s Annual Report in 2004-05 showed that since 1997, 6,842 convicted defendants (or in some cases, their relatives) had sought to use its services, resulting in 271 (or 4.4%) being referred back to the Court of Appeal; of these references, 135 (or 68%) resulted in convictions being quashed (68%). These figures are not strictly comparable with those for the United States. (p 26) · Part 13A of the Crimes Act 1900 (NSW) provides for the review of a criminal conviction or sentence. This applies where ‘there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case’. (p 27-29) · The now defunct NSW Innocence Panel was established in August 2000 as a non-statutory body reporting to the Minister for Police. Unlike the UK Criminal Cases Review Commissions, the task of the NSW Innocence Panel was not to investigate offences or review convictions. Rather, its role was that of a ‘facilitator’, that is, to arrange for searches to be conducted by Police for nominated items and for DNA testing and comparison to be carried out. (p 32-33) · The Finlay Review of 2003 recommended that the Panel, which is to continue to focus on DNA evidence, should be given a legislative basis under the Crimes (Forensic Procedures) Act 2000 providing for its membership, duties, powers and responsibilities. A DNA Review Panel along the lines suggested would be unique to NSW. Differentiating it from the model adopted in the UK, it would not be a vehicle for general inquiry into all alleged miscarriage of justice cases. Unlike the Innocence Projects in the United States, it would operate under government auspices, albeit in an independent capacity. If it is to operate effectively, it must be backed by legislation for the long-term storage, preservation and retention of forensic material. (p 35-37) · The term ‘wrongful acquittal’ is conceptually difficult. To find any person guilty, where this cannot be proved evidentially beyond reasonable doubt, or where the conviction is achieved by procedurally dubious means, would be a miscarriage of justice. Of course injustices occur. The actually innocent are convicted, just as the actually guilty are set free. It is in this context that the term ‘wrongful acquittal’ is used, often as the reverse side of the coin to ‘wrongful conviction’. Both terms might be said to resonate more in popular than strictly legal language, which is not to say that the subjects they refer to are not real enough. (p 39) · The rule against double jeopardy states that a person who has been acquitted (or convicted) of an offence may not subsequently be charged with the same offence again. It makes no difference that new evidence of guilt is discovered after an acquittal. Is this rule to be amended? (p 39) · The issue of double jeopardy raises many questions of a technical nature, as well as underlying questions of principle that underpin the criminal justice system. For those who support reform of the double jeopardy rule, the argument is that a new ‘balance’ can be found in the criminal justice deal, one that continues to uphold the rights of the accused while at the same time recognising the impact made by scientific advances and applying these to bolster the rights of victims and the interests of society at large. Those who oppose reform might argue that the language of ‘balance’ is misplaced in this context, suggesting as it does that rights can be traded without loss to the individual accused and without impairment to civil liberties generally. (p 63-64)

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