REPORT

MISSOURI BAR CRIMINAL LAW

SUB-COMMITTEE ON

DNA EXONERATIONS & SB 1252

DISCLAIMER: This report is only the analysis, findings and recommendations of the members of the Sub-Committee as submitted to the members of the Criminal Law Committee for their consideration and determination. Only the Board of Governors of the Missouri Bar may act on behalf of the Missouri Bar.

This Sub-Committee was established for the purpose of reviewing DNA exonerations and analyzing the recommendations contained within the Missouri Senate Bill (SB) 1252, The Integrity of Justice Act, to determine if the reforms advocated by this legislation were adopted would they improve the operation of the criminal justice system. The Sub-Committee’s charge is in keeping with the highest ideals of the legal profession and in the cause of justice.

DNA exonerations are in the triple digits and have raised significant questions as to how these miscarriages of justice could occur in a system designed to provide the accused the right to counsel, the presumption of innocence and due process of law as guaranteed by state and federal constitutions. Yet, as several recent studies document, our system for meting out justice, especially in capital cases, is seriously flawed and has punished innocent citizens. (U. S. Department of Justice: “Convicted by Juries, Exonerated by Science, (1996); Illinois Commission on Capital Punishment (April 2002)) In Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, the United States Supreme Court reinstated the Defendant’s convictions of child molestation, sodomy, and kidnapping. DNA evidence later exonerated Mr. Youngblood and restored his freedom after years of incarceration. Science has proven that safeguards established by the courts have not protected the innocent from wrongful incarceration. Scientific lessons show how an improved approach to the criminal justice system may assist society in our effort to secure the truth and impose accountability.

The Sub-Committee reviewed two Missouri cases - Steven Toney and Armand Villasana – both of whom were exonerated by DNA testing. The implicit question to the Sub-Committee was: Could we learn any lessons from DNA exonerations and possibly transfer those lessons into recommendations to protect the innocent from wrongful incarceration without impairing criminal investigations or prosecutions. The Sub-Committee has reviewed the April 2002 presenters’ material from the Harvard Law School, Criminal Justice Institute: “Wrongful Convictions, A Call to Action” in addition to the below referenced research material, we analyzed public policy considerations and make the following findings and recommendations.

Public Policy Considerations

Is the American Criminal Justice System’s punishment of citizens for crimes they didn’t commit a matter for public concern? If it is, what are the costs to benefits considerations of any reforms and how do we best implement them in our decentralized system of criminal justice? The maxim “Better ten guilty men go free than one innocent man be imprisoned” is a common maxim of legal education, but the inverse “Better ten innocent men be imprisoned, than one guilty man go free, because the others are likely guilty of something anyway” is a sentiment shared by segments of the public that believe the “Rule of Law” is exhorted over common sense and the public good. The federal government enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to limit the availability of the writ of habeas corpus as an avenue of relief.  Can the public desire for finality and punishment of criminal offenders permit reform that increases the reliability of the assignment of guilt and increases the workload in the criminal justice system? Are we willing to require more systematic and thorough investigations from our criminal justice system and are we willing to provide police and prosecutors with the training, support, and financial compensation to obtain a more reliable criminal justice system that is in keeping with the noble principles embodied within the American Constitution?

The DNA Exonerated

DNA is not the only way exonerations have been obtained, but it does provide the most definitive and thoroughly examined exoneration data currently available. The Associated Press conducted an analysis of 110 DNA exoneration cases: The 110 men had as a group served 1149 years prison time; 11 of them were sentenced to death; nearly half of them had no prior adult convictions; nearly two-thirds of them were convicted with mistaken eyewitness testimony from victims and bystanders; about 14 percent were imprisoned after mistakes or misconduct by forensic experts; nine were mentally retarded or borderline retarded and confessed, they said, after being tricked or coerced by authorities; about two-thirds were African-American or Hispanic; about 60 percent of the 110 men were helped by the 10 year old Innocence Project at the Cardozo Law School.

The Oklahoma City Daily Oklahoman, recognized as the most conservative major daily newspaper in the nation, has provided news coverage of the Jeff Pierce DNA exoneration case. Mr. Pierce was sentenced to 65 years in prison for rape in 1986, and had served 15 years before he was exonerated by DNA evidence and released from prison in 2001. Discredited Oklahoma City Police Lab Director Joyce Gilchrist and a mistaken victim’s identification separated Mr. Pierce from his wife and infant twin sons for 15 years.

In 1999, Armand Villasana was convicted in Missouri for a 1998, kidnapping and rape. The victim, who is white, identified Mr. Villasana, who is Latino, from a photo line up that contained pictures of five white men and one Latino – Villasana. The victim had previously described her assailant as Hispanic. Mr. Villasana had a prior criminal conviction. Though Mr. Villasana was never sentenced, he was convicted and spent close to two years incarcerated while the case played out. The original attorney on his case was never provided with the bench notes from the state crime laboratory examination. Mr. Villasana’s subsequent attorney, Shawn Askinosie, obtained a court order to obtain the bench notes, which revealed a positive acid phosphatase result, indicating that semen was present on an item of evidence. The defense then sent the evidence to an independent laboratory and paid for the testing.  The DNA evidence excluded Mr. Villasana as the perpetrator and the prosecution dismissed the case at the sentencing hearing. Mr. Villasana has filed a civil rights action in Federal Court against the Missouri Highway Patrol Crime Lab alleging intentional and/or negligent concealment of evidence by the Crime Lab.

In 1983, Steven Toney was convicted of rape and sodomy and was sentenced to two life sentences. Mr. Toney, who is African-American, had a prior criminal conviction and a history of drug abuse. Fortunately for Mr. Toney the evidence from his case was preserved and in 1996, DNA tests excluded him as the perpetrator and he was freed after 13.5 years in prison.

Senate Bill 1252

            Missouri Senate Bill 1252, The Integrity of Justice Act, was sponsored in the 2002 session of the Missouri General Assembly by State Senator Mary Groves Bland (D - Kansas City) and contained 7 different recommendations for reform in the criminal justice system. Those reforms include: 1) An eyewitness evidence Protocol; 2) Crime lab oversight and accreditation; 3) A prosecutor/Attorney General review and finding before a judge could admit the testimony of a state’s witness who heard an incriminating admission during his/her incarceration; 4) Law enforcement pay standard; 5) Prosecutorial reporting on any dismissal/nolle prosequi that mistakenly charged the actually innocent with a crime; 6) Repeal the Rule on Negative Inferences in criminal cases, and; 7) Police reporting arrest information.

Eyewitness Evidence

          Every study reviewed by the Sub-Committee of exonerations, DNA and non-DNA, listed mistaken eyewitness identification as the leading cause of wrongful convictions. Former New Jersey Attorney General John Farmer, Jr., when he implemented the eyewitness evidence guidelines for New Jersey in 2001, wrote, “It is axiomatic that eyewitness identification evidence is often crucial in identifying perpetrators and exonerating the innocent. However, recent cases, in which DNA evidence has been utilized to exonerate individuals convicted almost exclusively on the basis of eyewitness identifications, demonstrate that this evidence is not fool-proof.” New Jersey was the first state in the nation to adopt the recommendations made by the United States Department of Justice in 1999, in its “Eyewitness Evidence: A Guide for Law Enforcement.” The Justice Department made a series of recommendations for accurately obtaining and preserving eyewitness evidence.

            Eyewitness evidence errors may occur in the observation, when the memory of the event is retained, or when that information is communicated. The human mind is not a static system and subsequent events do impact upon memories. Scientific studies recommend early and accurate communication of witness observations. The information obtained from a witness should be based on non-leading means of gathering information, with a thorough follow-up questioning process and a statement of witness certainty at the conclusion of the process to increase the reliability of this type of evidence.

            The courts have established methods intended to keep excessively tainted eyewitness identifications from being admitted into evidence. The United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977), clarified the Biggers  test factors to determine whether the identification had been impermissibly tainted and these factors would be construed by the “totality of the circumstances.” The U.S. Supreme Court in Manson used these factors: 1) Opportunity of the witness to view the criminal at the time of the crime; 2) witness’s degree of attention; 3) accuracy of his prior description; 4) level of certainty demonstrated at the confrontation, and; 5) time between the crime and confrontation. The Manson test has been adopted by the Missouri Courts.

Scientific studies have shown that the fourth prong, “certainty,” is not well-founded as a basis to determine the trustworthiness of identifications. Studies have shown that a correlation of .4 exists between accuracy and confidence. A perfect positive correlation of 1.0 would indicate that confident identifications were accurate. Studies have shown a number of factors ranging from feedback, to prior exposure not related to the crime, and prior exposure to the suspect during the investigative process can lead to the adoption as the criminal of a person with similar characteristics to the criminal in the witness’s mind. These studies have also recommended procedural changes designed to increase the accuracy in obtaining and preserving reliable eyewitness identifications.

SB 1252 Eyewitness Evidence Protocol

            SB 1252 contains an eyewitness evidence protocol that incorporates aspects of the United States Department of Justice (DOJ), “Eyewitness Evidence, A Guide for Law Enforcement” and the New Jersey Attorney General’s Eyewitness Evidence Guidelines. All three recommend early and thorough witness interviews designed to solicit information from the witness in a non-leading way before the follow-up questioning of the witness by the officer turns to leading questions. This early interview process is complimented by an early assessment of the witness’s ability to definitively identify the perpetrator through a statement of certainty. If done properly, any identification obtained through this method would have a high degree of reliability. The next stage of the eyewitness evidence procedure, photo and live line ups, reflects a departure by the Integrity of Justice Act from the recommendations of the DOJ and New Jersey recommendations. All three recommend that any photo or live line up have only one suspect in any panel. All three recommend that witnesses be told, prior to the procedure, that the criminal may not be in the line up and they should feel free not to make a choice, if they don’t see the criminal. All three recommend that the suspect panel should be fairly composed and dramatic differences in race, height, and clothing should be avoided. All three recommend that the procedures be thoroughly documented by photographing or  video taping the panels used and obtaining a witness statement of certainty after the procedure, whether identification occurs or not. All three recommend, if possible, the person conducting the line up should not know the identity of the suspect to prevent inadvertent clues being given to the witness by the administrator of the procedure.

 The DOJ and the New Jersey Guidelines make no policy choice between sequential (one at a time) and simultaneous line up procedures for photo or live line ups. SB1252 chooses sequential procedures as the approved method for witness/subject confrontations. The traditional or simultaneous line up has several individuals or photos viewed at the same time and the witness chooses from among them to determine if the criminal is in that panel. Scientific studies have shown that simultaneous lineups produce a higher rate of correct identifications. These same studies have shown that simultaneous lineups also produce a rate of incorrect identifications that are several times higher than those obtained through sequential procedures. The comparative analysis that allows a witness to determine which of the individuals in the simultaneous procedure is most like the criminal produces a slightly higher rate of correct identifications and a significantly higher rate of incorrect identifications. The choices made by witnesses on the margins gives policy makers a decision as to which procedure is preferable. The identifications obtained through sequential procedures, one at a time, are twice as reliable as simultaneous identifications, but the marginal identifications are lost. SB 1252 made the policy decision to lose the marginal identifications in favor of having the more reliable results.

The DOJ and New Jersey Guidelines have no remedy available for violation of their procedural recommendations. Since both of these procedural reforms are substantially more extensive than is constitutionally required, violations of their recommendations would not subject eyewitness evidence to sanction pursuant to the Exclusionary Rule. SB 1252 also chooses not to sanction violations of its recommendations with the exclusion of eyewitness evidence. SB 1252 would require several months of a phase-in period for the Protocol’s implementation. During this time the Missouri Department of Public Safety is required to produce a procedural form and institute training on the requirements. After the implementation period the legislation would impose as sanction for violations an instruction to the finder of fact, a judge or jury, that would go to the weight that should be given to evidence obtained in violation of its procedural safeguards.

Crime Lab Oversight

Forensic errors or misconduct are one of the leading factors associated with DNA exonerations. SB 1252 proposed the creation of a seven member Laboratory Oversight Committee appointed by the Governor. The Committee was to include: one scientist trained in lab operations, one health care professional; one law enforcement officer; and one defense attorney as specific appointments. The Committee would have broad oversight and public sanction abilities. The legislation also proposed that every lab report must be signed by the technician conducting the test and include reference to whether the testing procedure was approved by a scientific body as valid method and make reference to whether the lab was currently accredited by some scientific association.  The Act also would have made it a Class B Felony for any lab personnel or public employee to fraudulently produce or verify falsified test results. The Committee would obtain funding from the defendant of a one dollar court assessment on any felony conviction. Seventy-five cents of that funding would be used by the Committee to enhance a DNA database of Missouri inmates. The remaining twenty-five cents would be available to the Committee for auditing and reviewing Missouri Crime Labs.

Two of the most egregious examples calling for police crime lab reform are former West Virginia State Police Sergeant Fred Zain (West Virginia, Texas, and 10 other states) and, as of September 2001, former Oklahoma City Police Lab Director Joyce Gilchrist (Oklahoma). These two experts are part of nationwide problem of questionable police lab work. With regard to Fred Zain, in 1993 the West Virginia Supreme Court ruled, In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 190 W.Va. 321, 438 S.E. 2d 501, that  “as a matter of law, any testimonial or documentary evidence offered by Zain at any time should be deemed invalid, unreliable and inadmissible.”  Trooper Zain testified to results even though his lab did not possess the equipment to conduct the necessary test. Zain’s police lab was criticized by the investigating court for: “(1) no written documentation of testing methodology; (2) no written quality assurance program; (3) no written internal or external auditing procedures; (4) no routine proficiency testing of laboratory technicians; (5) no technical review of work product; (6) no written documentation of instrument maintenance and calibration; (7) no written testing procedures manual; (8) failure to follow generally-accepted scientific testing standards with respect to certain tests; (9) inadequate record-keeping; and (10) failure to conduct collateral testing.”  In West Virginia alone, seven convictions have been overturned and other appeals are pending. To date, that state has paid at least $6.5 million to settle lawsuits. Texas has also settled lawsuits in which Zain’s work was exposed. An internal investigation of Zain by the West Virginia State Police was conducted in 1985, but no action was taken against him and he continued on his career as a police lab chemist. Zain was noted for finding evidence no other lab technician could find and for being a compelling prosecution witness.

 The Oklahoma City Police Department hired Joyce Gilchrist on Feb. 5, 1980 and by 1987, complaints were filed with Southwestern Association of Forensic Scientists accusing her of misconduct. The Association refused for years to discipline Gilchrist, but rebuked her in 1987, for violating the group’s code of ethics. The FBI reviewed 680 of the thousands of cases involving Gilchrist’s work and “has concerns” about 112 of those cases. These cases do not include specific findings, including death penalty cases, where courts have already reversed verdicts involving Gilchrist’s work.

The basic tenets of good science are: documented results, verifiable results, and repeatable results. Solid scientific analysis involves established procedures which survive scrutiny by other scientists. “Junk Science” results are not repeatable and subject to vastly differing interpretations and are usually not well documented or capable of passing peer review scrutiny.  Police crime labs have been abused by the likes of Zain, Gilchrist, and others. Those police labs already using good scientific techniques will not be disturbed by peer reviews since their work can withstand independent scientific scrutiny.

Incarcerated State’s Witness

SB 1252 proposes a two-step review before a state’s witness that heard an incriminating admission during their incarceration could testify. This type of witness is commonly referred to as a “jail house snitch”. Allowing jail house snitches to come forward and, in exchange for significant sentencing and charging considerations in their own case(s), to testify to admissions of guilt they heard from their fellow inmates creates the potential for significant abuse. Several DNA exonerations involve testimony by a jail house snitch to the defendant’s confession of guilt. The Act proposes a three prosecutor/Attorney General review panel, none of whom may be subordinate to the prosecutor acting as trial counsel and seeking to offer this witness’s testimony to review specific criteria to determine if this testimony possess sufficient indicia of reliability and then the panel will in a recorded vote recommend whether they accept this testimony as reliable. A judge will then review the findings of the prosecutors’ panel and determine if the evidence is sufficiently reliable to be submitted to the jury.  The Act would create a registry of jail house snitches to be developed and perennial snitches would have to justify their lengthy history of testimony to future panels, judges, and juries.

Law Enforcement Pay Standard

SB 1252 recognizes the need to pay law enforcement professionals a salary above minimum wage. In parts of rural Missouri, it is not uncommon to find law enforcement professionals paid 14 to 16 thousand dollars a year. Police advocates have reported that salaries near minimum wage and an additional requirement that the officer provide their own police vehicle is still accepted employment requirements in some police departments in Missouri. Law enforcement officers are required to obtain significant training and perform public service that exposes them to significant risks. The Act recognizes that a comparable wage is necessary if quality individuals are going to enter and be retained in the law enforcement profession. The Act sets a minimum salary standard of 20 thousand per year and authorizes the Director of the Missouri Department of Public Safety to recommend salary standards based upon urban, rural, and experience determinations. The Standard is advisory only and has no binding effect on county and local governments.

Prosecutorial Reporting

SB 1252 proposes a new prosecutorial reporting requirement. In cases where a dismissal of charges or a Nolle Prosqui is filed by the state the defendant could then request a finding by the prosecutor. The findings permitted are: No Finding; Legally Innocent; and Actually Innocent. A former defendant that received a No Finding determination from the prosecutor could appeal to the court where the charge had been filed and if they present clear and convincing evidence to the court, the finding of the prosecutor would be amended accordingly. Prosecutors would report these finding requests in their annual report and once a finding request was made the status of the record would be changed from a “closed record” to a “public record” that would be publicly available. The Act defines “Actually Innocent” as: “where the defendant did not act and was not in any legal way involved with the act or acts of the charged offense.” This reporting requirement would allow for the documentation of pure error in the investigation and charging process.

Rule on Negative Inferences

SB 1252, in proposed RSMo Section 546.065: “It shall be admissible as evidence whether tests were conducted which could include or exclude the defendant as the perpetrator of the crime. These tests include finger printing, DNA, bodily fluid, or other established forensic tests. The rule on negative inferences as it pertains to criminal charges is hereby abolished.” It is an accepted court rule, in Missouri, that defendant’s counsel may not argue the failure of the State’s investigation to conduct fingerprinting or other crime scene analysis. Defendant’s counsel may not argue the adverse inference relating to the failure of the State to conduct fingerprinting or other analysis during a criminal investigation. State v. Wiggley, 515 S.W. 2d 791, held “It is not incumbent on State to search for fingerprints and it is not error to refuse to let defendant comment on absence of such evidence.” The Act would repeal this rule, also known as the “Negative Evidence Doctrine”, and permit comment on the State’s investigation and evidence.

Police Reporting

SB 1252 would require additional police reporting on arrests. The legislation would require reporting on arrests that resulted in a limited detention with no subsequent charges being filed against the detainee.

Sub-Committee Findings

Eyewitness Evidence:  The Sub-Committee unanimously recommends the requirement of additional law enforcement training for eyewitness evidence processing pursuant to the guidelines published by the United States Department of Justice in, “Eyewitness Evidence: A Guide for Law Enforcement.” (1999)

Majority (Johnson & Wyse) recommend adoption of the provisions of SB 1252, in part, as to eyewitness evidence with the below modifications. Wyse recommends adoption of the provisions of SB 1252 as to eyewitness evidence, provided that the provisions are modified to allow the court to base its decision on the totality of the circumstances rather than on the compliance or non-compliance with any one requirement set forth in the legislation. Johnson recommends that the requirements set forth in the legislation shall be factors – not strict requirements – which must be considered by the trial court when, in its discretion, it rules on a motion to suppress identification. Johnson opposes an instruction of any kind that goes to the fact finder where, as here, a question of law is ultimately at issue.

 Minority (Parsons) opposes the mandatory provisions of the act and believes that the officer information gathering requirements are not feasible to implement.

Crime Lab Oversight:  The Sub-Committee unanimously recommends independent oversight of police crime labs. Majority (Johnson & Wyse) recommend adoption of this provision of SB 1252. Concurring in part (Parsons) requests consultation with additional information sources and has no specific recommendations at this time.

Incarcerated State’s Witness: Majority (Johnson & Parsons): A majority of the Sub-Committee opposes the proposed Section 491.053 of Senate Bill 1252, which would provide that an incarcerated state witness, not a co-defendant in the case, is presumed unreliable.  There are legal, practical and policy reasons for this opposition.

            First, as a legal matter, all witnesses are presumed competent subject to the provisions of RSMo § 491.060.  It is clear that the legislature intended only very narrow exceptions to that general rule: mental infirmity, infancy, and privileged communication to clergy, physicians and attorneys.  The sub-committee is also concerned that the proposed legislation would treat incarcerated witnesses differently from witnesses who had pending cases but were not incarcerated.  The proposal, while facially neutral, could have an adverse impact on racial minorities and the poor.

            Second, as a practical matter, the procedural requirements of the proposed legislation are impractical and would prove too burdensome – in both time and expense – for rural communities.  A great many counties in Missouri have only one prosecuting attorney, whose position is not full-time.  It is simply too much to ask, in every case where a state witness is incarcerated, that a panel of three prosecuting attorneys or two prosecutors and one Assistant Attorney General (excluding the prosecutor who will represent the state in the trial of the case) be appointed to determine the incarcerated witness’ reliability.  The costs associated with this procedure would be substantial.  Additionally, the very existence of the witness screening procedure may encourage less discretion by prosecuting attorneys when filing a case.  There will be less incentive for the filing attorney to verify the credibility of state’s witnesses because that attorney will know that three other attorneys will evaluate the strength of the case.

            Third, policy reasons exist for opposing this section of SB 1252.  If we are to say that incarcerated state witnesses are presumptively unreliable, how far are we from saying that incarcerated defendants – or defendants in general – are also presumptively unreliable?  If we carve out one large exception to the rule with respect to incarcerated witnesses, what is stopping other arbitrary exceptions from being enacted into law?  There are certainly safety considerations as well.  If there exists a quasi-public database of state’s witnesses, is the welfare of those cooperative and credible witnesses being put at risk?  Will such a database have a chilling effect on a credible, but incarcerated, witness’ decision to come forward and testify in a criminal case?

            All of the concerns raised in the proposed Section 491.053 can be addressed by competent, prepared defense counsel.  Investigation, depositions, and other pre-trial preparation – if performed zealously with adequate funding – will undoubtedly reveal crucial matters of credibility addressed by SB 1252.

            For these reasons, a majority of the sub-committee opposes the enactment of Section 491.053 of Senate Bill 1252.

Minority (Wyse) supports legislation’s recommendation. Canada has similar review process before testimony is accepted from jail-house snitches. Making the registry a law enforcement investigative database (non-public) available to the state and only disclosed to the defense when this type of witness is endorsed for trial testimony would thereby eliminate most of the safety concerns and when balanced against defendant’s right to a fair trial more than warrant this type of review.

Law Enforcement Pay Standard:  The Sub-Committee unanimously recommends this proposal, with discretion in information gathering and communication of standard to be given to Director of the Department of Public Safety.

Prosecutorial Reporting: The Sub-Committee unanimously opposes the legislation’s recommendations as to prosecutorial reporting. The State, as plaintiff has absolute right to dismiss, and burden on state of “proof beyond a reasonable doubt” is substantial. The Sub-Committee expressed concern that legislation’s requirements might chill considerations and may have an impact on appropriate decisions vested within the state’s discretion.

Repeal Rule on Negative Inferences: Majority (Johnson & Wyse) support the legislation’s abolition of this rule.

                Minority (Parsons) Opinion SB 1252 proposes an amendment to Chapter 546 of the Revised Statutes of Missouri, abolishing the rule against “negative inferences”.  Under current case law the defendant may not argue the State’s failure to conduct scientific tests. The proposed change in chapter 546 is in response to State v. Wiggley, 515 S. W. 2d 791. A cursory review of the case law reveals that Courts apply this rule in limited situations. However, a more exhaustive review of the law is necessary. There are several issues raised by the proposed amendment to Chapter 546; the assumption made by this amendment, the unnecessary burden this places on law enforcement and the general misunderstanding of scientific evidence by the general population.

               The first area of concern is the assumption made by this amendment. The underlying assumption is that law enforcement officers make a deliberate attempt to hide, alter or leave behind potentially exculpatory evidence so that no tests can be conducted.  This assumption is unjustified and should not be codified. Granted, there are situations where the defendant is justified in claming the police destroyed or mishandled evidence. However, the criminal justice system has in place procedures to address claims of evidence destruction and evidence mishandling. 

               Second, the modification to chapter 546 would essentially insert a new element in each criminal charge, the element of scientific testing. By allowing the defendant to argue the negative inference regarding all of the tests that were available and not conducted puts an additional element in the State’s case. The State is not required to conduct scientific testing to meets its’ burden of proof. The practical effects of this amendment will be unnecessary and costly tests in order to overcome the adverse, negative inference. 

               Finally, scientific evidence is widely misunderstood by

the general population and the media perpetuates these misunderstandings and misperceptions. There are many situations where no physical evidence exists to collect or to test. Many people erroneously believe fingerprints will be on any object that a human being touches. Similarly, many people believe DNA is present at all

crime scenes. Allowing the defendant to automatically argue the lack of scientific testing will force the State to put on experts in every trial to explain how fingerprints are left or that DNA is only found in nucleated cells. In short, the trial would turn into a science class.

               In conclusion, the current rule against “negative inferences” does not thwart a defendant’s ability to defend himself. There are safeguards built into the system that allow the defendant to address claims of malicious intent for failure to conduct scientific tests. Chapter 546 should not be amended as outlined in S.B. 1252.

Police Reporting: The Sub-Committee unanimously opposes the legislation’s requirement for additional police reporting.

Final Recommendation: The Sub-Committee agrees that the issues raised by this analysis need additional review.

Pursuant to instructions report submitted on June 21, 2002, by Stephen Wyse, Chair of the Sub-Committee. Revisions to Minority on Negative Inferences submitted June 23^rd.

MISSOURI BAR CRIMINAL LAW

SUB-COMMITTEE ON

DNA EXONERATIONS & SB 1252

 
SUB-COMMITTEE MEMBERS

RESEARCH FILE VOLUME 1