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Saved by DNA

In response to:

Let the DNA Fit the Crime from the February 23, 2012 issue

To the Editors:

Richard Lewontin, in his review of DNA uses in forensics [“Let the DNA Fit the Crime,” NYR, February 23], correctly notes that the position of experts including his own has evolved as the testing improved, now employing genomic sites and population databases that yield less biased and more specific information. His contribution and others to my earlier book, DNA on Trial: Genetic Identification and Criminal Justice (Cold Spring Harbor Press, 1992), foresaw the initial problems, potential resolutions, and new challenges like lack of universal laboratory standards and inadequate funding of labs gathering and processing forensic samples.

At that time, we also fostered the discussion of what a proper collection rubric might be that would protect civil liberties while optimally exonerating the innocent and identifying the guilty. One wonders if Lewontin’s views on this topic have also changed over the last two decades. I would note that this consideration should be separated from demands for a DNA registry for citizenship determinations or immigration processes.

Clearly, DNA testing in forensics no matter where it is launched will always be better at exculpating individuals than including them as potentially guilty. Given that well-proven fact, should not every accused have the right to top-quality DNA testing as part of their defense? Not tolerating wrongful convictions and punishments (including death) where DNA analysis might be persuasive seems to be a right and right.

Paul R. Billings, M.D., Ph.D.
Chief Medical Officer
Life Technologies, Inc.
Carlsbad, California

To the Editors:

In his discussion of the role of DNA in criminal justice, Richard Lewontin talks about cases in which confessions obtained by the police continue to have overwhelming influence even though DNA evidence proves that those who have confessed to committing the crime are in fact innocent. These shocking cases highlight the injustice of admitting into evidence a confession produced by interrogation while in police custody even though that confession has later been retracted, as it will have been if the accused has subsequently pleaded not guilty and gone to trial.

For the police, obtaining a confession is a hugely attractive means of speedily disposing of a case without the inconvenience and uncertainty involved in building a case based on evidence. Thomas Macaulay memorably captured this truth in his comment on the Indian Penal Code of 1837 when he observed that it is easier to sit in the shade and rub pepper in the eye of a suspect than to search in the heat of the countryside for evidence.

More sophisticated methods of obtaining confessions are employed by the police now, but as Chief Justice Earl Warren said in the landmark Supreme Court case Miranda v. Arizona, there is “compulsion inherent in custodial surroundings,” and in his opinion he provided in abundant detail the techniques employed to extract admissions of guilt from persons who may well be innocent. Vulnerable people in police custody (and who among us is then not vulnerable) are manipulated to see confession as the way to more friendly treatment by the authorities, starting with an end to what is a truly frightening ordeal.

The iniquity of allowing retracted confessions to be introduced in evidence becomes clear when one considers that a person accused of a crime cannot be required to submit to questioning even in open court where, unlike in a police station, there are abundant protections against any sort of deviousness or oppression. But alas, a jury presented with a retracted confession will naively assume that no one would confess to a crime he has not committed, and will dismiss the retraction with the thought, “He would say that now, wouldn’t he!”

Professor Hyman Gross
Corpus Christi College
Cambridge, England

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