Thursday, February 05, 2009

Preservation of DNA Evidence

In Colorado HB 09-1121, DNA Evidence Preservation Process, is being considered by our lawmakers. I plan to speak about the bill on Monday at the Capitol. Earlier today I sent the following to Judiciary Committee members.

Chairman Levy and Honorable members of the House Judiciary Committee:

My name is William Newmiller and I am writing to address concerns about the legislation proposed in HB 09-1121 entitled DNA Evidence Preservation Process.

I am a retired Air Force pilot and a former member of the FBI. For 25 years I’ve lived in Colorado Springs, during which time I’ve been a professor of English at the Air Force Academy, a position in which I continue to serve with great joy. My passion regarding the issue of evidence preservation comes from my son’s conviction for a crime he did not commit. Central to his conviction was the failure of the El Paso County Sheriff’s Department to preserve potentially exculpatory evidence.

Although the intent of HB 09-1121 is commendable, in its present form it fails to fix the most fundamental flaw of its predecessor: It lacks an effective mechanism to enforce the preservation of potentially exculpatory DNA evidence.

This analysis will explain why relying upon courts to “determine whether the disposal of the DNA evidence violated the defendant’s due process rights” (18-1-1-1104(4)) will be ineffective. Then, other less severe shortcomings will be noted.

Failure to preserve DNA evidence won’t yield a due process violation
The US Supreme Court in Arizona v. Youngblood (1988) determined that due process is not violated when the state fails to preserve potentially exculpatory evidence. Writing for the majority, Chief Justice William Rehnquist opined:

The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. [emphasis added]
Rehnquist goes on to say, “We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Rehnquist explains what is involved in showing bad faith, writing, “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Of course in the case of untested DNA evidence, there can be no knowledge of its exculpatory value at the time of its loss.

Colorado courts continue to rely upon the precedent of Arizona v. Youngblood to evaluate claims of due process violations regarding the failure to preserve evidence, DNA or otherwise.

18-1-11-2 fails to require preservation of DNA evidence between the filing of charges and conviction
The period between the filing of charges and conviction is one when there is heightened risk of loss or damage to evidence. During this period, evidence is often transported to various locations, such as the CBI Lab, and is subject to handling by more people than at any other time. In our son’s case loss of evidence occurred during this period of time, and the Colorado Court of Appeal relied upon Arizona v. Youngblood to deny our claim of a due process violation. To exclude this period greatly diminishes the potential of HB 09-1121 to improve accuracy in verdicts.

18-1-1105 outlines disposal procedures that fail to require active and informed acquiescence of the defendant
As written, the failure of an incarcerated defendant to respond clears the way for the destruction of the evidence. However, by the time the defendant is incarcerated and appeals decided (a period that often lasts several years), the defendant is unlikely to have legal counsel for advice on the issue. The problem is compounded because of the likelihood that the defendant may suffer from mental illness or retardation, conditions that make reliance on passive acquiescence especially problematic.

18-1-1105 fails to recognize the significance of post-conviction claims of innocence as grounds to preserve evidence
Empirical data gathered by the Innocence Project, which has now exonerated over 225 previously convicted felons, show that “In 25% of the wrongful convictions overturned through DNA testing nationwide, innocent people confessed or admitted to crimes they did not commit. In 5% of all cases that resulted in DNA exonerations, innocent people actually pled guilty to crimes they didn’t commit.”

18-1-1105 fails to recognize that DNA testing technology is likely to improve and that improved testing may be critical to freeing the innocent and bringing the guilty to account
The case of Youngblood v. Arizona is instructive in understanding why even DNA evidence of questionable value should be retained. In this case, the DNA evidence in question had not been stored properly and had deteriorated to the point where the procedures of the 1980s could not provide reliable results. The Supreme Court’s opinion returned Larry Youngblood to prison, but to its credit the State of Arizona retained the degraded DNA evidence. Twelve years after the Supreme Court published the Youngblood opinion, DNA testing had improved. Better DNA tests finally teased the secret from the evidence. The DNA belonged not to Larry Youngblood, but to Walter Cruise who by then was serving time for another crime. Youngblood was released from prison. Cruise eventually pled guilty to the crime for which Youngblood had originally been convicted. Note: that the Arizona v. Youngblood opinion resulted in extended incarceration of an innocent man and allowed the guilty to commit another crime has not diminished court reliance upon it to deny due process violations.

During these difficult economic times, something needs to be said about the economic impact of DNA preservation. Obviously, the motive for preserving such evidence is to avoid convicting and incarcerating the innocent while increasing the potential to convict the guilty. Because the mere idea of convicting the innocent is so morally appalling, the cost of false convictions is often overlooked. Empirical research tells us that at least 3.3% of those serving prison time and maybe as many as15% in some jurisdictions are factually innocent of the crime for which they are incarcerated. If we assume 3.3%—at the low end of the scale—then Colorado has 763 innocent inmates, each housed at an annual cost of $28,759, a total housing cost of $21,943,117 per year. There are, of course, other significant costs. When an innocent person is convicted of a crime, the guilty person goes free, often to commit other crimes, as Walter Cruise did after the conviction of the innocent Larry Youngblood. DNA preservation is an excellent investment of Colorado’s limited resources. While this bill, when modified to address the concerns listed here, is commendable, greater returns in justice and financial savings will accrue by expanding the principal of evidence preservation to more categories of offenses and to other forms of potentially exculpatory evidence.


  1. Enforce preservation of evidence by legislating consequences for the failure to so. Consequences might include dismissal of charges against the accused or might specify the nature of sanctions levied against the prosecution, when loss occurs prior to conviction. Post-conviction losses might require some lowering of the bar to gain post-conviction relief. Consequences might also be directed towards those responsible for the failure, making them vulnerable to criminal penalties and/or civil suit, or at least subjecting them to significant administrative remediation to include termination of employment.
  2. Expand preservation requirements to cover the period of time between the filing of charges and the rendering of a verdict.
  3. Require active and informed consent from the defendant before evidence can be destroyed.
  4. Respect claims of innocence, especially in cases where significant doubt can be raised regarding the accuracy of the verdict.
  5. Recognize the potential of evidence that may not yield to current technology.
  6. Expand preservation requirements to additional classes of offense and to other forms of exculpatory evidence.

1 comment:

Anonymous said...

This was well-written and drove home several key points that lawmakers around the nation don't seem to understand. I really appreciate the fact that you included the statement of how when the innocent are in prison, the guilty go free. That's a statement I've heard several times since I've become aware of wrongful convictions; but no matter how many times I hear it, each time it is more powerful.

Good luck on Monday! I'm sure you'll do well and keep us posted. This is something that should be considered nationwide and hopefully the rest of the nation will follow your lead.