The use and misuse of high-tech evidence by prosecutors: Ethical and evidentiary issues

Fordham Law Review

Volumn 76, Issue 3, 2007, Pages 1453-1492

  Aronson, Robert ^a   McMurtrie, Jacqueline ^a,b  

^a UNIVERSITY OF WASHINGTON   (United States)

^b Innocence Project Northwest Clinic

Author keywords

[No Author keywords available]

Indexed keywords

EID: 39349112479     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (337)

1. Berger v. United States, 295 U.S. 78, 88 (1935).
2. Model Rules of Prof 1 Conduct R. 3.8 cmt. 1 (2007).
3. See People v. Kelley, 142 Cal. Rptr. 457, 461 (Ct. App. 1977).
4. See Bruce A. Green & Fred C. Zacharias, Regulating Federal Prosecutors ' Ethics, 55 Vand. L. Rev. 381, 449 (2002) ("Implicit in any deference to prosecutorial decisionmaking is the notion that, at least sometimes, we can trust prosecutors to behave ethically. We get this notion from two sources. First, as government officials, we hope and expect that prosecutors will serve the government's interests, which in the law enforcement context includes 'justice.' Second, we know that lawyers who choose careers in law enforcement rather than the more lucrative private sector often make that choice because of a desire to serve the public").
5. See Model Rules of Prof 1 Conduct R. 3.8 cmt. 1.
6. See Maurice Possley & Steve Mills, Crimes Go Unsolved as DNA Tool Ignored, Chi. Trib., Oct. 26, 2003, at Al;
7. Innocence Project, After 19 Years in Prison for One of the Most Heinous Crimes in NJ History, Byron Halsey Is Proven Innocent Through DNA (May 15, 2007), http://www.innocenceproject.org/Content/583.php (describing how the man guilty of the 1985 rape and murder of two children committed three sexual assaults from 1991 to 1992 while an innocent man was in prison for the 1985 crimes);
8. Barry Scheck & Peter Neufeld, Innocence Project, 200 Exonerated: Too Many Wrongly Convicted 2, 38-39 (2007), available at http://www. innocenceproject.org/Images/751/ip_200.pdf (presenting a study of the first 200 exonerations in the United States and reporting that, in thirty-seven percent of the cases, the true perpetrator was identified after an the exoneration).
9. Abbe Smith, Can You Be a Good Person and a Good Prosecutor?, 14 Geo. J. Legal Ethics 355, 381(2001).
10. Id. at 380.
11. Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 78 (1991).
12. Standards for Criminal Justice: Prosecution Function and Defense Function Standard 3-1.2(c) (3d ed. 1993).
13. See, e.g., Bennett L. Gershman, The New Prosecutors, 53 U. Pitt. L. Rev. 393, 456 (1992) ("Any prosecutor can convict a guilty man; it takes a great prosecutor to convict an innocent man."
14. (quoting defense attorney Melvyn Bruder in the documentary The Thin Blue Line)).
15. See Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 Wis. L. Rev. 837, 902-03.
16. Id. at 903.
17. Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U. L. Rev. 125, 132-37 (2004) (discussing how a prosecutor's office creates a culture that places a high premium on convictions by providing incentives for higher conviction rates - including career advancement, bonuses, and public posting of individual and office-wide conviction rates - and noting how offices may also use conviction statistics during budget negotiations, using their "records of success" to leverage greater resources);
18. William E. Hellerstein, Freeing the Innocent: Why So Hard?, N.Y. L.J., Mar. 10, 2005, at 2.
19. But see Gene Johnson, Green River Killer Given Life in Prison, Wash. Post, Dec. 19, 2003, at A4 (noting that prosecutors agreed not to seek the death penalty in exchange for Gary Ridgway's assistance in locating the remains of his victims, which led to mixed reactions on the part of the victims' families).
20. Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor 6 (2007).
21. Id.
22. Henry Weinstein, Lawyers Clash over Prosecutorial Misconduct, L.A. Times, July 12, 2007, at B2. Studies of wrongful convictions have identified prosecutorial misconduct as a substantial contributor to wrongful convictions. See Barry Scheck et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted 263 (2000) (indicating that prosecutorial misconduct contributed to forty-two percent of the first sixty-two DNA exonerations);
23. Ken Armstrong & Maurice Possley, The Verdict: Dishonor, Chi. Trib., Jan. 10, 1999, at 1.
24. See Armstrong & Possley, supra note 18, at 3.
25. See Davis, supra note 16, at 78.
26. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (mem.) (Blackmun, J., dissenting) ("From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored - indeed, I have struggled-along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.").
27. Prosecutors have a duty to at least investigate the testimony of their witnesses if they suspect perjury. See Morris v. Y1st, 447 F.3d 735, 744 (9th Cir. 2006). The testimony of jailhouse snitches is inherently questionable, and snitches are a major factor in fifteen percent of wrongful convictions. See Innocence Project, Facts on Post-Conviction DNA Exonerations, http://www.innocenceproject.org/Content/351.php (last visited Oct. 29 2007);
28. see also Daniel S. Medwed, Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions, 51 Vill. L. Rev. 337, 364 (2006) (discussing the wrongful incarceration of David Wong for nine years, principally due to the use of jailhouse informers);
29. Innocence Project, Know the Cases: Dennis Fritz, http://www. innocenceproject.org/Content/152.php (last visited Oct. 29, 2007) (discussing the wrongful incarceration of Dennis Fritz for eleven years partly due to the testimony of a jailhouse snitch). A jailhouse informant possesses incentives to "fabricate statements, including the opportunity to improve [his or her] penal situation, and virtually no disincentive considering that perjury is hard to detect, much less prosecute." Medwed, supra, at 364.
30. See generally Myrna S. Raeder, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts, 76 Fordham L. Rev. 1413 (2007). Prosecutors may also give jailhouse snitches special treatment extending beyond the reduction of charges or favorable sentencing recommendations .
31. See, e.g., Jack King, Twisted Justice: Prosecution Function in America out of Control, Champion, Mar. 1999, at 10, 10-11 ("[San Diego prosecutors] lavished an informer and star witness with privileges such as a private cell with color TV and a shower and conjugal visits in the prosecutor's office with the informer's wife and three of his girlfriends - and concealed these inducements from defense counsel."). Witness inducements, however, have always been an integral part of the American criminal justice system, and "will continue to be an important tool to prosecutors in the twenty-first century."
32. H. Lloyd King, Jr., Why Prosecutors Are Permitted to Offer Witness Inducements: A Matter of Constitutional Authority, 29 Stetson L. Rev. 155, 180 (1999).
33. Witness preparation presents a difficult ethical problem because it may "foster inaccuracy by introducing distortion into a witness's testimony, but it also promotes accuracy when it is used to clarify complex or ill-recalled events." John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277, 341 (1989). Lawyers cannot simply rely on ethical codes to guide their ethical decisions, because the true morality of an action may depend on the lawyer's motivations for acting in a specific way.
34. See Fred C. Zacharias & Shaun Martin, Coaching Witnesses, 87 Ky. L.J. 1001, 1005-06 (1999);
35. see also Applegate, supra, at 352;
36. Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995);
37. Joseph D. Piorkowski, Jr., Note, Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of 'Coaching, ' 1 Geo. J. Legal Ethics 389 (1987).
38. There are numerous examples of such behavior. A Pennsylvania attorney was charged for "allegedly making a personal vendetta out of a solid waste enforcement case" and exceeding his prosecutorial authority. Martha Neil, Battle over Waste Turns Nasty, A.B.A.J. eREPORT, Jan. 19, 2007, http://www.abanet.org/journal/ereport/j19haws.html. Additionally, City Attorney Rocky Delgadillo publicly chided the Los Angeles county sheriff for allowing Paris Hilton's early release from jail, although his own wife was wanted for arrest for nine years.
39. See Hilton's Prosecutor Under Fire for Double Standard, MSN TV News, June 20, 2007, http://tv.msn.com/tv/article.aspx?news=266383> 1=7703. Following a confrontation with a judge, sheriffs deputies escorted the Fulton County district attorney out of the courtroom. The same attorney was involved in a physical altercation with Fulton County sheriff's deputies the previous year.
40. See Greg Land, Hot-Headed DA Again Ejected from Courtroom, Defense Lawyer Says, N.Y. Law., May 4, 2007, http://www.nylawyer.com/ display.php/file=/news/07/05/050407t. A Washington state prosecutor accidentally filed a felony flatulence charge against an eleven-year-old boy as an interoffice joke.
41. Flatulence Allegation Turns Out to Be Hot Air, Seattle Times, May 10, 1992, at B7. The recent termination of nine U.S. prosecutors raised questions about the politicizing of the Department of Justice.
42. See David Johnston & John M. Broder, New E-mail Gives Dismissal Detail, N.Y. Times, Mar. 20, 2007, at Al;
43. Jason McLure & T.R. Goldman, DOJ Goes into Damage Control over Firing of US Attorneys, N.Y. Law., Mar. 12, 2007, http://www.nylawyer.com/ display.php/file=/news/07/03/031207h;
44. James Vicini, Gonzales Seen as Politicizing Justice Dept, Reuters, Aug. 20, 2007, http://www.reuters.com/article/domesticNews/ idUSN1714926720070820. A former Department of Justice lawyer claimed that the department's top officials made a politicized decision to seek just $10 billion, rather than $130 billion, from "Big Tobacco" during the government's massive racketeering case against the tobacco industry in 2005.
45. See Ex-DOJ Prosecutor Says Brass Bowed to Political Pressure, Ethics Probe 'Was a Joke,' N.Y. Law., Apr. 5, 2007, http://www.nylawyer.com/ display.php/file=/news/07/04/040507j. The U.S. Court of Appeals for the Second Circuit recently found that federal prosecutors violated the Constitution by pressuring an accounting firm not to advance attorneys' fees to a group of former employees facing criminal charges.
46. See generally Stein v. KPMG, LLP, 486 F.3d 753, 763 (2d Cir. 2007). A New York prosecutor essentially dictated the punishments that drunk-driving defendants must accept by creating a particularly tough policy for drunk drivers.
47. See Michael Scholl, N.Y. Lawyer Challenges Local DA's 'Draconian' DWI Policy, N.Y. Law., Aug. 8, 2006, http://www.nylawyer.com/ display.php/file=/news/06/08/080806e.
48. A state's privilege to dismiss potential jurors through peremptory challenges is "subject to the commands of the Equal Protection Clause." Batson v. Kentucky, 476 U.S. 79, 89 (1986). In order to challenge allegedly discriminatory peremptory challenges (1) a party makes a prima facie case by showing that the relevant facts give rise to an "inference of discriminatory purpose"; (2) the striking party must then explain the racial exclusion by offering permissible race-neutral justifications for the strikes; and (3) once the striking party provides a race-neutral explanation, the burden returns to the challenging party to show that the reason was pretextual and that the striking party engaged in purposeful discrimination. Id. at 93-98. The inference of discrimination can also be enough to establish a Batson claim: "[A] defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 U.S. 162, 170 (2005). A variety of methods may also show evidence of discrimination, including a lack of good reason for striking jurors, different questioning for people of different races, and the use of a jury shuffle. See generally Miller-El v. Dretke, 545 U.S. 231(2005). Despite this three-part Batson test, the discriminatory use of peremptory challenges remains a problem.
49. See id. at 268-69 (Breyer, J., concurring) (citing David C. Baldus et al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 52-53, 73 n.197 (2001)) (noting that, "in 317 capital trials in Philadelphia between 1981 and 1997, prosecutors struck 51% of black jurors and 26% of nonblack jurors; defense counsel struck 26% of black jurors and 54% of nonblack jurors; and race-based uses of prosecutorial peremptories declined by only 2% after Batson");
50. Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data from One County, 23 Law & Hum. Behav. 695, 698-99 (1999) (discussing how, in one North Carolina county, 71% excused black jurors were removed by the prosecution; 81% of excused white jurors were removed by the defense). The U.S. Court of Appeals for the Ninth Circuit held that a waiver of peremptory strikes could be discriminatory in a struck jury system. See United States v. Esparza-Gonzalez, 422 F.3d 897, 903 (9th Cir. 2005) ("Failing to provide protection against removal of identifiable jurors, when such removal is achieved by waiver rather than exercise of a peremptory strike, would frustrate the essential purpose of Batson - to eliminate the race-based selection of jurors - and would violate the equal protection rights of both the defendant and prospective jurors.").
51. See Daniel Wolfe, Seeing Is Believing: Visual Tools for Today's Courtroom, Chi. Daily L. Bull., Mar. 2004, at 10, 10, available at http://www.trialgraphix.com/documents/Seeing%20Is%20Believing.pdf.
52. E-mail from Prolumina Trial Technologies to Jacqueline McMurtrie (Apr. 13, 2007, 16:06:34 PDT) (on file with author).
53. Jennifer Robinson Boyle, State v. Pierce: Will Florida Courts Ride the Wave of the Future and Allow Computer Animations in Criminal Trials?, 19 Nova L. Rev. 371, 381 (1994).
54. People v. McHugh, 476 N.Y.S.2d 721, 722-23 (Sup. Ct. 1984); see also Fed. R. Evid. 401 (relevance); Fed. R. Evid. 403 (prejudice); Fed. R. Evid. 702-703 (expert testimony); Fed. R. Evid. 901 (authentication and identification).
55. See Donald E. Shelton et al., A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the 'CSI Effect' Exist?, 9 Vand. J. Ent. & Tech. L. 331, 333, 368 (2006) (noting that a broader "tech effect" in popular culture may be affecting juror expectations more than any television show and that the criminal justice system should adapt to accommodate jurors' expectations and commit more resources to obtaining scientific evidence in certain situations).
56. See id. at 368.
57. Brian Carney & Neal Feigenson, Visual Persuasion in the Michael Skakel Trial: Enhancing Advocacy Through Interactive Media Presentations, Crim. Just., Spring 2004, at 32, 34.
58. Robert B. Bennett, Jr., et al., Seeing Is Believing; or Is It? An Empirical Study of Computer Simulation as Evidence, 34 Wake Forest L. Rev. 257, 286 (1999).
59. Id.
60. Evelyn Marcus, The New Razzle Dazzle: Questioning the Propriety of High-Tech Audiovisual Displays in Closing Argument, 30 Vt. L. Rev. 361, 391 (2006).
61. 58 Pa. D. & C.4th 52 (C.P. Lackawanna County 2001).
62. Id. at 72.
63. Id.
64. Commonwealth v. Serge, 896 A.2d 1170, 1175, 1187 (Pa. 2006); accord Dunkle v. State, 139 P.3d 228, 247 (Okla. Crim. App. 2006).
65. Serge, 58 Pa. D. & C. 4th at 54-55.
66. Id. at 55.
67. Id. at 57-58.
68. Serge, 896 A.2d at 1175.
69. See Serge, 58 Pa. D. & C.4th at 77-84.
70. Id. at 77-78.
71. Id. at 78-79.
72. Id. at 82.
73. State v. Stewart, 643 N.W.2d 281, 286-87 (Minn. 2002).
74. Id. at 295.
75. Id.
76. Id. at 295-96.
77. Dunkle v. State, 139 P.3d 228, 251-52 (Okla. Crim. App. 2006).
78. Id. at 248-49.
79. Id. at 250.
80. Id. at 250-51.
81. Id. at 251.
82. Id.
83. 66 S.W.3d 188 (Tenn. 2002).
84. Id. at 192.
85. Id. at 209-10.
86. Id.
87. Id. at 210.
88. Id.
89. See Fed. R. Evid. 403 (prejudice); Commonwealth v. Serge, 58 Pa. D. & C.4th 52, 72 (C.P. Lackawanna County 2001); see also Fed. R. Evid. 402 (relevance); Fed. R. Evid. 611 (mode and order of interrogation).
90. State v. Stewart, 643 N.W.2d 281, 296 (Minn. 2002).
91. Id.
92. Commonwealth v. Serge, 896 A.2d 1170, 1186 (Pa. 2006).
93. Id. at 1186-87.
94. In re Revisions to the Uniform Jury Instructions, 163 P.3d 567, 582 (Okla. Crim. App. 2007).
95. See I. Neel Chatterjee, Admitting Computer Animations: More Caution and New Approach Are Needed, 62 Def. Couns. J. 36, 42-43 (1995) (noting as well that the information appears more reliable than it actually is).
96. Commonwealth v. Serge, 58 Pa. D. & C.4th 52, 77-82 (C.P. Lackawanna County 2001).
97. Id. at 71;
98. see also Chatterjee, supra note 70, at 38-39.
99. Serge, 58 Pa. D. & C.4th at 69-70; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Frye v. United States, 293 F. 1013 (D.C Cir. 1923).
100. See Chatterjee, supra note 70, at 36.
101. See Daubert, 509 U.S. at 585-98; Frye, 293 F. at 1014.
102. Serge, 58 Pa. D. & C4th at 71.
103. Commercial Union Ins. Co. v. Boston Edison Co., 591 N.E.2d 165, 168 (Mass. 1992).
104. See Walker v. Cardwell, 348 So. 2d 1049, 1052 (Ala. 1977); Standards for Criminal Justice: Prosecution Function and Defense Function Standard 3-5.8(a) (3d ed. 1993).
105. See Standards for Criminal Justice: Prosecution Function and Defense Function Standard 3-5.8(a), (c); see also Model Rules of Prof 1 Conduct R. 3.8 cmt. 1 (2007).
106. Marcus, supra note 35, at 361.
107. Id. at 363-67.
108. See id. at 361.
109. Id. at 371 (citation omitted).
110. Id. at 372-73.
111. See id. at 371.
112. Id. at 371-72.
113. Id. at 384-85.
114. Id. at 385.
115. Id. at 387 (quoting Brief of Defendant-Appellant at 78, State v. Skakel, 888 A.2d 985 (Conn. 2006) (No. 16844)).
116. See id.
117. No. 47398-1-I, 2002 WL 258038 (Wash. Ct. App. Feb. 25, 2002).
118. Id. at *3.
119. Id.
120. Id.
121. See infra Part IV.
122. State v. Skakel, 888 A.2d 985, 1060-61 (Conn. 2006) (quoting State v. Morales, 876 A.2d 561, 569 n.7 (Conn. App. Ct. 2005)).
123. Prosecutors will also sometimes resort to inflammatory arguments outside of the context of high-tech cases. In a recent U.S. Court of Appeals for the Eighth Circuit case, Weaver v. Bowersox, 438 F.3d 832 (8th Cir. 2006), the court criticized a prosecutor's use of inflammatory statements. The prosecutor in Weaver made various colorful statements about the role of the jury and his own personal opinion about the death penalty. First, the prosecutor analogized the jurors' role to that of a soldier in battle: I know there's a movie, Patton, and in the movie, George Patton was talking to his troops because the next day they were going to go out in battle and they were scared as young soldiers. And he's explaining to them that I know that some of you are going to get killed and some of you are going to do some killing tomorrow morning. And they all knew that. And he was going to try to encourage them that sometimes you've got to kill and sometimes you've got to risk death because it's right. He said: But tomorrow when you reach over and put your hand in the pile of goo that a moment before was your best friend's face, you'll know what to do. Id. at 836. This vivid imagery was supplemented by statements about the prosecutor's personal belief in the death penalty and about the prosecutor's special position of authority to determine whether to seek the death penalty.
124. Id. at 840. The argument thus emphasized the prosecutor's opinion at the expense of the judgment of the jurors. Finally, the prosecutor stated that executing the defendant was necessary to prevent drug criminals from taking over society and noted, It strikes right at the heart of our system. You've got to look beyond William Weaver. This isn't personal. This is business. You people represent the entire community. You represent society. You have to give a message here. You have to tell the William Weavers ... and you have to be willing to look them right in the eye when you do it, that there's a point at which we won't allow you to go. And when you do, prison's too good. It's the death penalty. Sometimes killing is not only fair and justified; it's right. Sometimes it's your duty. There are times when you have to kill in this life and it's the right thing to do.... This case - I guess it's the one that just cries out to you to say protect the community. The drug dealers, they are taking our streets away from us. Are we going to take them back? Are we going to let them have the streets or are we going to fight back? If the drug peddlers are going to run our community, then all is lost. Then there's no point in having jurors. The death penalty applies in some cases. It applies in this case.
125. Id. at 836. The defendant was convicted of murdering a prospective witness in a drug case, but the Eighth Circuit granted habeas corpus relief from his death sentence due to the prosecutor's impermissibly inflammatory penalty phase arguments.
126. Id. at 842. The Supreme Court granted a writ of certiorari and heard oral argument on the case. Although during oral argument the Court discussed the prosecutor's improper statements, the writ was dismissed as improvidently granted due to a procedural issue. See Roper v. Weaver, 127 S. Ct. 2022, 2024 (2007) (discussing whether the court of appeals' application of the more stringent standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214, was consistent with Court's interpretation of the statute). In a recent U.S. Court of Appeals for the Ninth Circuit case, United States v. Sine, 493 F.3d 1021 (9th Cir. 2007), the prosecutor used inflammatory statements from an earlier civil trial in a criminal trial.
127. Id. at 1024. In Sine, the defendant was a lawyer accused of helping run a pyramid scheme that defrauded victims of millions of dollars.
128. Id. at 1023. He reassured investors that the scheme was legitimate and backed by millions of dollars in collateral, and when the pyramid scheme collapsed Sine began filing lawsuits to recover the value of the collateral in order to establish a good faith defense.
129. Id. at 1023-24. During the civil trial about the defendant's lawsuits to recover the collateral, the judge stated, "The record presently before the court is rife with chicanery, mendacity, deceit, and pretense. The versions each [defendant] has given about his activities, whether in court or out, ring false."
130. Id. at 1027. The judge also noted that "Sine holds in his hands a bottomless bucket, has done absolutely nothing to see that it gets filled, and is unlikely ever to do so."
131. Id. These statements were not formally entered into record, but the prosecution provided "a thorough account of the order for the jury" so the jury was aware of the "sordid details" of the prior litigation.
132. Id. at 1028. The prosecutor also stressed the fact that a judge had made these statements and found Sine's activities to be fraudulent.
133. Id. at 1029-30. Despite finding that the statements were improper, the court held that the prosecutor's actions were harmless error, so Sine's criminal conviction was not overturned.
134. Id. at 1024.
135. John Ashcroft, U.S. Att'y Gen., Attorney General News Conference (Aug. 1, 2001), http://www.usdoj.gov/archive/ag/speeches/2001/080101newsconferencedna. htm.
136. Henry C. Lee & Frank Tirnady, Blood Evidence: How DNA Is Revolutionizing the Way We Solve Crimes 3 (2003).
137. It is beyond the scope of this essay (and these authors) to undertake an explanation of the scientific fields governing DNA typing, which include molecular biology, genetics, and population genetics. For background, see generally David L. Faigman et al., Science in the Law: Forensic Science Issues 664-98 (2002);
138. Lawrence Kobilinsky et al., DNA: Forensic and Legal Applications (2005);
139. David H. Kaye & George F. Sensabaugh, Jr., Reference Guide on DNA Evidence, in Reference Manual on Scientific Evidence 485, 485-576 (2d ed. 2000);
140. Office of Tech. Assessment, Genetic Witness: Forensic Uses of DNA Tests (1990), available at http://govinfo.library.unt.edu/ota/Ota_2/DATA/1990/ 9021 .pdf.
141. Office of Tech. Assessment, supra note 100, at 3.
142. See Gov't of V.l. v. Byers, 941 F. Supp. 513, 527 (D.V.I. 1996) ("There is something very primal about DNA and genetic science that lends itself to a posture of 'mythic infallibility.'").
143. Office of Tech. Assessment, supra note 100, at 6.
144. Johnson v. State, 934 S.W.2d 179, 181 (Ark. 1996).
145. People v. Wesley, 533 N.Y.S.2d 643, 644 (Albany County Ct. 1988).
146. Paul C. Giannelli, The DNA Story: An Alternative View, 88 J. Crim. L. & Criminology 380, 380-81 (1997) (book review) (referencing state and federal cases admitting DNA evidence).
147. Id. at 381 ("No other scientific technique has gained such widespread acceptance so quickly. No other technique is as complex or so subject to rapid change. The change is so dramatic that during the 1980s, new DNA technologies were introduced as cases litigating the older procedures worked their way through the court system." (citations omitted)).
148. See Ian Findlay et al., DNA Fingerprinting from Single Cells, 389 Nature 555 (1997) (noting that short tandem repeat DNA (STR-DNA) profiles can often be obtained from even a single cell of biological material).
149. The first DNA test, restriction fragment length polymorphism (RFLP), required a relatively large sample of biological material (a minimum of 100,000 cells containing DNA). Forensic analysts had to have a sample of biological material that was at least the size of a quarter. Subsequent development of polymerase chain reaction (PCR) testing of DNA revolutionized DNA testing by allowing samples of DNA contained in biological evidence to be copied without affecting the original sample. The PCR amplification technique can be used to reproduce millions of copies of the DNA contained in a few, for example, 50 to 100, cells. Initially PCR testing was directed at a specific region of the DNA, the DQ-alpha loci. Nat'l Inst. of Justice, Postconviction DNA Testing: Recommendations for Handling Requests 26-27 (1999). STR technology evaluates thirteen specific regions (loci) that are found on DNA. The use of PCR with STR sequences is employed in the majority of laboratories that conduct DNA analysis. See Kobilinsky et al., supra note 100, at 90 (reporting that PCR short tandem repeat analysis is the "method of choice" in forensic laboratories).
150. Nat'l Inst. of Justice, Using DNA to Solve Cold Cases 5 (2002) (noting that if a biological sample was degraded "by environmental factors such as dirt or mold, RFLP analysis may have been unsuccessful at yielding a result. Newer technologies could now be successful in obtaining results").
151. For example, evidence that one defendant's DNA matched DNA obtained from saliva samples found on the victim's breasts resulted in his conviction for robbery and rape. See Henry Fitzgerald Jr., Texas Man Convicted in Lauderdale Rape, S. Fla. Sun-Sentinel, July 31, 1997, at 1B. Ray Krone, who spent ten years in prison, some of those on death row, was exonerated after DNA testing done on the saliva and blood found on the victim implicated a man named Kenneth Phillips. Krone was convicted and sentenced to death for the murder of a woman who was stabbed to death and left in the restroom of a bar where she worked. Little physical evidence was found, except for bite marks left on the neck and the breast of the victim. Investigators heard that Krone helped the victim close the bar on the night of the murder, and he was arrested and charged. Styrofoam impressions of Krone's teeth were taken for comparison with the bite marks on the victim. At trial, an ondontologist testified that the bite marks on the victim matched the impression Krone made on the styrofoam. Krone, who testified he was at home at the time of the murder, was convicted and sentenced to death. Krone was successful in obtaining a new trial but was convicted after retrial and sentenced to life imprisonment. See State v. Krone, 897 P.2d 621, 622 (Ariz. 1995) (ordering a new trial because Krone had been prejudiced by the state's failure to disclose a crucial piece of evidence in the form of a videotape which "attempted to show a match between Krone's teeth" and the victim's wounds);
152. Craig M. Cooley, Reforming the Forensic Science Community to Avert the Ultimate Injustice, 15 Stan. L. & Pol'y Rev. 381, 437 (2004) (using Ray Krone's story as an example of the potential fallacies of bite mark identification);
153. Henry Weinstein, Death Penalty Foes Mark a Milestone Crime: Arizona Convict Freed on DNA Tests Is Said to Be the 100th Known Condemned U.S. Prisoner to Be Exonerated Since Executions Resumed, L.A. Times, Apr. 10, 2002, at A16 (reporting on the exoneration of Ray Krone).
154. Investigators of the unsolved Green River Killer cases relied upon previously unavailable STR-DNA testing to identify Gary Ridgway as the perpetrator of those crimes. Although the detectives in that case had originally taken vaginal swabs from the victims and tested them using older DNA technology, the samples were too small to reveal conclusive results. However, when the swabs were retested using the STR-DNA method, Ridgway's DNA profile was revealed and the infamous cases were solved. See Eric Sorensen, Advances in DNA Tests Led to Arrest, Seattle Times, Dec. 1, 2001, at A8. Calvin Johnson served over fifteen years in prison before being exonerated for his 1983 rape, sodomy, and burglary convictions. Forensic analysis was conducted on the semen taken from the vaginal swabs from the victim. The blood typing showed that the semen came from an ABO type-O secretor, matching Johnson and about forty percent of the African-American population. In 1997, PCR-based DNA testing on the vaginal swab and cervical slides from the rape kit established that Johnson was not the source of the sperm found on the vaginal slide.
155. See Innocence Project, Know the Cases: Calvin Johnson, http://www.innocenceproject.org/Content/186.php (last visited Oct. 29, 2007).
156. Investigators in California reopened a seventeen-year-old murder case where the victim was abducted from an ATM machine and then stabbed to death. A DNA profile taken from sweat on a blue paisley cap found in the victim's car led to the arrest of Tyrone Hamel. At the time of his arrest, Hamel was serving a life term in a Texas prison for two rapes and four robberies. See S.L. Wykes & Jessie Seyfer, DNA Links Texas Inmate to '88 Killing of Woman: Rapist to Face Charges in Death of Lawyer, San Jose Mercury News, July 11, 2005, at 3A. Stephan Cowans was exonerated after a DNA profile taken from saliva on a glass used by the perpetrator of an assault did not match Cowans's DNA profile. Cowans was convicted of multiple crimes associated with an assault on a police officer. Jurors heard that the assailant shot a police officer after wrestling the gun away from the officer during a physical struggle. The assailant then shot at a resident of the neighborhood, before breaking into a home. The assailant drank from a glass of water in the house and left behind a baseball cap, the gun, and a sweatshirt. Two fingerprint technicians testified that a fingerprint lifted from a glass used by the assailant matched Cowans's print. Cowans was convicted and sentenced to thirty to forty-five years in prison. In 2003, the state agreed to release the glass, baseball hat, and sweatshirt for DNA testing. Profiles obtained from the glass and the hat matched each other, but did not match Cowans. The state asked to have the sweatshirt tested, and again, the profile matched the profiles from the glass and the hat, but did not match Cowans. In 2004, Cowans was exonerated after serving six years in prison.
157. See Jonathan Saltzman & Mac Daniel, Man Freed in 1997 Shooting of Officer: Judge Gives Ruling After Fingerprint Revelation, Boston Globe, Jan. 24, 2004, at Al.
158. In 2000, the mother of a five year old was raped in her home while her son slept in an adjacent room. The rapist forced her to shower after the rape in order to eliminate DNA evidence. However, the victim saved skin scrapings hidden under her fingernails, and analysts obtained a profile from the scrapings that was linked to Nicholas Stanishia in 2004. Stanishia was found guilty in March 2006 and sentenced to sixty-two years in prison. See Richard Willing, Many DNA Matches Aren't Acted On, USA Today, Nov. 20, 2006, at 1A. James O'Donnell was exonerated after a DNA profile found in the victim's fingernail scrapings and on swabs taken from the victim's bite mark matched each other, but excluded O'Donnell as the contributor. See O'Donnell v. State, 808 N.Y.S.2d 266, 267-68 (App. Div. 2005);
159. Innocence Project, Know the Cases: James O'Donnell, http://www. innocenceproject.org/Content/228.php (last visited Oct. 29, 2007).
160. Donald Jones was convicted of murder in 2007, after investigators matched his DNA with DNA found in the roots of hair taken from a skull cap recovered from the crime scene. See Gabrielle Banks, 2nd Jury Convicts Man in 2001 Slaying, Pitt. Post-Gazette, Mar. 20, 2007, at B5;
161. City: Westwood, Mistrial in Murder Trial, Pitt. Post-Gazette, May 26, 2006, at B5. Anthony Hicks served five years in prison before DNA tests on the root of a single hair cleared him of rape and robbery charges. He was convicted of sexual assault in Wisconsin in 1991, on the basis of eyewitness testimony and microscopic hair examination. DNA analysis subsequently proved that the hairs, which had been attributed to Hicks, were not his.
162. See Innocence Project, Know the Cases: Anthony Hicks, http://www.innocenceproject.org/Content/177.php (last visited Oct. 29, 2007).
163. Mitochondrial (mtDNA) technology analyzes DNA found in the mitochondrian
164. See Butch John, Lawmaker Calls for More Use of DNA Tests, Courier-Journal (Louisville, Ky.), July 6, 2000, at Al;
165. Mark Schaver, DNA Evidence Frees Man Convicted in Rape Case, Courier-Journal (Louisville, Ky.), July 6, 2000, at Al.
166. In one recent case, "DNA analysis of a single hair (without the root) found deep in the victim's throat provided a critical piece of evidence used in a capital murder conviction." Nat'l Inst. of Justice, What Every Law Enforcement Officer Should Know About DNA Evidence 3 (1999).
167. But see Edward K. Cheng, Mitochondrial DNA: Emerging Legal Issues, 13 J.L. & Pol'y 99, 118 (2005) (lauding mtDNA as an important and exciting development in forensic technology, but cautioning that its evidentiary weight is not equivalent to nuclear DNA).
168. Nat'l Inst. of Justice, supra note 110, at 2.
169. Nat'l Inst. of Justice, supra note 110, at 6, 9-10. Other types of DNA profiles, such as RFLP and mtDNA profiles, cannot be matched through CODIS.
170. Id. at 7.
171. See FBI, CODIS-NDIS Statistics, http://www.fbi.gov/hq/lab/codis/ clickmap.htm (last visited Oct. 27, 2007).
172. See, e.g., Tracy Johnson, Critical Clue Rests 30 Years in Victim's Clothes, Seattle Post-Intelligencer, Oct. 24, 2007, at Al. After a detective pulled clothing from an evidence bag in an unsolved 1978 murder, submitted it for an STR test, and ran the test results through CODIS, the DNA profile matched a convicted offender imprisoned for murder.
173. Id.
174. The unique power of DNA typing to exonerate, as well as incriminate, came to light the first time it was used in a criminal investigation. In 1986, Scotland Yard called upon Dr. Alec Jeffreys, who had developed a process of DNA typing while at Leicester University, to assist in the investigation of two brutal rape and strangulation cases. The murders occurred in two neighboring villages in Narborough, England. Police soon focused on a suspect, Richard Buckland, who provided a graphic confession after several hours of interrogation. In it, he described details of the crime that police proclaimed were only known to the killer. In order to solidify the case against Buckland, police submitted semen samples from both crimes to Jeffreys, who had developed a process he called "DNA fingerprinting," for analysis and comparison against Buckland's blood sample. Jeffrey's conclusion, which stunned the police and the community, was that Buckland was not the perpetrator. The DNA tests confirmed that both girls had been raped by the same perpetrator, but Buckland was not that man. Buckland became the first person in the world to be cleared through the use of DNA tests. When their prime suspect was excluded from consideration, police embarked upon a campaign of "voluntary" blood testing, obtaining samples from over 5000 men in the environs of the crime. The results of this first-reported DNA dragnet did not identify the rapist. However, it did lead the police to Colin Pitchfork. A coworker revealed that Pitchfork had persuaded him to provide a sample in his stead. The ruse was eventually uncovered and Pitchfork was arrested in 1987. After his arrest, Pitchfork confessed to the crimes and subsequent DNA tests linked him to the crimes. See Lee & Tirnady, supra note 99, at 1-2. For a fuller account of the Narborough Village cases, see Joseph Wambaugh, The Blooding (1989).
175. Scheck & Neufeld, supra note 6, at 38-39.
176. See, e.g., Debra Cassens Moss, DNA - The New Fingerprints, 74 A.B.A. J. 66, 68-70 (1988) (discussing then - California Attorney General John Van de Kamp's cautionary note against prosecutors rushing to use the new DNA typing tests before independent tests established their reliability).
177. See, e.g, Jean L. Marx, DNA Fingerprinting Takes the Witness Stand, Science, June 17, 1988, at 1616, 1616 (quoting an enthusiastic lawyer in the Palatka, Florida, district attorney's office as saying that DNA typing was "the greatest boon to forensic medicine and law since fingerprinting").
178. See generally Simon A. Cole & Rachel Dioso-Villa, CSI and Its Effects: Media, Juries, and the Burden of Proof, 41 New Eng. L. Rev. 435 (2007) (reviewing scholarship and news accounts of the "CSI Effect"). The authors identified at least six different claims which were labeled the "CSI Effect": "strong prosecutor's effect"; "weak prosecutor's effect"; "defendant's effect"; "producer's effect"; "professor's version"; and "police chief's version."
179. Id. at 447-52. The authors suggest that "even if there were a CSI Effect it would not be raising the burden of proof, but merely reinforcing the, already quite high, standard."
180. Id. at 467-68.
181. See infra notes 133-50 and accompanying text.
182. See infra Part II.B.2.
183. Brady v. Maryland, 373 U.S. 83, 87 (1963).
184. Id.
185. Model Rules of Prof'l Conduct R. 3.8(d) (2007) (noting that a prosecutor shall "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal").
186. Duff Wilson & Juliet Macur, Lawyers for Duke Players Say DNA Evidence Clears the Team, N.Y. Times, Apr. 11, 2006, at Dl. For a full treatment of the Duke lacrosse case and the ethical issues raised by Durham County District Attorney Michael Nifong's conduct,
187. see Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice, " 76 Fordham L. Rev. 1337 (2007).
188. Id.
189. See Susan Hanley Kosse, Race, Riches & Reporters - Do Race and Class Impact Media Rape Narratives? An Analysis of the Duke Lacrosse Case, 31 S. 111. U. L.J. 243, 276-78 (2007) (examining media coverage to determine whether race and class played a role in the exculpation or vilification of either the complainant or the defendants, and concluding that the press reported evenhandedly by sharing unflattering information about all the participants).
190. Duff Wilson & David Barstow, Duke Prosecutor Throws Out Case Against Players, N.Y. Times, Apr. 12, 2007, at Al.
191. David Barstow & Duff Wilson, DNA Witness Jolted Dynamic of Duke Case, N.Y. Times, Dec. 24, 2006, at Al.
192. Id.
193. Id.
194. Id.
195. Joseph Neff et al., Lab Chief. Nifong Said Don't Report All DNA Data, News & Observer (Raleigh, N.C.), Dec. 16, 2006, at Al.
196. Barstow & Wilson, supra note 137.
197. Wilson & Barstow, supra note 136.
198. Id.
199. Id.
200. Id.
201. Id.
202. See Thomas Bartlett & Sara Lipka, One Ad, 88 Professors, and No Apologies, Chron. Higher Educ., Feb. 16, 2007, at 10.
203. Duff Wilson, Facing Sanction, Duke Prosecutor Says He'll Resign, N.Y. Times, June 16, 2007, at Al.
204. See Aaron Beard, New Ethics Charges for Duke Prosecutor, CBS News, Jan. 24, 2007, http://www.cbsnews.com/stories/2007/01/24/ap/national/ mainD8MRP40G2.shtml (internal quotation marks omitted).
205. Model Rules of Prof'l Conduct R. 3.6(a) (2007).
206. Id. R. 3.8(f).
207. Id.
208. See Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics: Lawyer's Deskbook on Professional Responsibility § 3.8-2(e) n.38 (2007 ed.). According to Rotunda and Dzienkowski,
209. In a world of ubiquitous publicity about trials, Maryland Attorney Grievance Commission v. Gansler, 377 Md. 656, 835 A.2d 548 (2003), represents a relatively rare reprimand for it. Respondent, the State's Attorney for one of Maryland's largest counties, had held press conferences about highly publicized cases and reporting evidentiary details, prior criminal records, and alleged confessions and offered plea deals. The Maryland Supreme Court agreed with Gansler that "information contained in a public record" includes all information made public from any source, including the media. Thus, publicly revealing a defendant's criminal record is permissible, even if prejudicial to the defendant, if the speaker can show that a private citizen could discover the record from public documents. Confessions, however, could not be so discovered, nor could information about plea discussions, so Gansler's reference to them was improper. Further, the fact Gansler was a public official was important, the Court said. "Prosecutors are held to even higher standards of conduct than other attorneys due to their unique role as both advocate and minister of justice....[Moreover,] a prosecutor's opinion of guilt is much more likely to create prejudice, given that his or her words carry the authority of government and are especially persuasive in the public eye." 835 A.2d at 572. The Court concluded that a formal reprimand, issued publicly, would adequately deter future violations of professional standards.
210. Id.
211. See Victoria Ward, DA Nifong Faces State Ethics Charges, Chronicle (Duke Univ.), Jan. 11, 2007, at 1 (noting that a seventeen-page complaint against Nifong by the Norm Carolina State Bar included allegations that he made "improper statements expressing his personal opinions about the guilt of the accused and whether a crime had occurred").
212. 509 U.S. 579 (1993).
213. 293 F. 1013,1014 (D.C. Cir 1923).
214. Kobilinsky et al, supra note 100, at 197-207.
215. Id. at 207-08.
216. See Nat'l Inst. of Justice, The Evaluation of Forensic DNA Evidence 185 (2006) ("[T]he concern that has given courts the most pause in admitting DNA evidence involves the methods for characterizing the implications of an observed degree of similarity in DNA types.").
217. See, e.g., State v. Cauthron, 846 P.2d 502, 503 (Wash. 1993) (reversing a rape conviction because "testimony that Cauthron's DNA 'matched' the perpetrator was admitted in error, in that it was unsupported by valid probability statistics").
218. See, e.g., United States v. Yee, 134 F.R.D. 161, 181 (N.D. Ohio 1991) ("Without the probability assessment, the jury does not know what to make of the fact that the patterns match: the jury does not know whether the patterns are as common as pictures with two eyes, or as unique as the Mona Lisa.").
219. See, e.g., State v. Vandebogart, 616 A.2d 483, 493-94 (N.H. 1992) (holding that the FBI's method for estimating population frequencies had not found general acceptance in the field of population genetics).
220. FBI, Statistical and Population Genetics Issues Affecting the Evaluation of the Frequency of Occurrence of DNA Profiles Calculated from Pertinent Population Database(s) (2000), http://www.fbi.gov/hq/lab/fsc/backissu/july2000/ dnastat.htm.
221. Jennifer Eckroth, Note, Tainted DNA Evidence and Post-Conviction Reversals in Houston, Texas: Suggested Solutions to Curb DNA Evidence Abuse, 31 Am. J. Crim. L. 433, 436 (2004) (citations omitted).
222. United States v. Chischilly, 30 F.3d 1144, 1157 (9th Cir. 1994) (citing Jonathan J. Koehler, Error and Exaggeration in the Presentation of DNA Evidence at Trial, 34 Jurimetrics J. 21, 27 n.24 (1993)) (noting "instances where courts, commentators and expert witnesses have committed such source probability errors").
223. Often the errors in DNA typing and random match probabilities emanate from the crime laboratory. See Craig M. Cooley, The CSI Effect: Its Impact and Potential Concerns, 41 New Eng. L. Rev. 471, 478-81 (2007) (detailing instances of DNA laboratory errors, miscalculations, and contamination in Arizona, California, Florida, Illinois, Massachusetts, Nevada, North Carolina, Pennsylvania, Virginia, and Washington).
224. Roma Khanna, DNA from Conviction of Teen Will Be Retested: 1999 Rape Case Part of HPD Crime Lab Review, Hous. Chron., Feb. 8, 2003, at A33.
225. Id.
226. Id.
227. Id.
228. William C. Thompson, Review of DNA Evidence in State of Texas v. Josiah Sutton, Sci. Testimony, Feb. 6, 2003, at 7-8, available at http://www.scientific.org/archive/Thompson%20Report.PDF.
229. Id. at 2.
230. Khanna, supra note 168.
231. See Thompson, supra note 172, at 6.
232. Id.
233. Id.
234. See Thompson, supra note 172, at 6-7.
235. State v. Sutton, No. 14-99-00951-CR, 2001 WL 40349, at *1 (Tex. Crim. App. Jan. 18, 2001).
236. Id.
237. Id. at *2.
238. Id.
239. Id.
240. See Innocence Project, Know the Cases: Josiah Sutton, http://www.innocenceproject.org/Content/268.php (last visited Oct. 27, 2007).
241. Sylvia Moreno, New Prosecutor Revisits Justice in Dallas: District Attorney Embraces Innocence Project and 'Smart on Crime ' Approach, Wash. Post, Mar. 5, 2007, at A4.
242. Id.
243. Office of the County of Santa Clara Dist. Att'y, Innocence Project, http://www.santaclara-da.org (follow "District Attorney's Office Directory" hyperlink; then follow "District Attorney Departments" hyperlink; then follow "Innocence Project" hyperlink) (last visited Nov. 5, 2007).
244. Id.
245. See Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 U. Pa. L. Rev. 547, 563-64 (2002) (recounting instances of prosecutor's resistance to postconviction DNA testing).
246. See generally Medwed, supra note 14.
247. Id. at 134-37.
248. Id. at 135-36.
249. Id. at 136, 138.
250. Id. at 140-43.
251. Id.
252. See id. at 136-37.
253. Id.
254. Id. 148-50.
255. Keith A. Findley & Michael S. Scott, Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 292. The authors discuss the Central Park jogger case as an example of a case where tunnel vision affected the investigation and caused police and prosecutors to resist strongly a claim of innocence in the face of exculpatory DNA evidence. In that case, a female jogger was raped and left for dead in the same area of Central Park where a large group of boys had attacked and attempted to rob several joggers that same night. Police and prosecutors quickly focused their attention on this group of boys, and obtained confessions from five of the boys-after interrogations ranging from fourteen to thirty-five hours. Police videotaped the confessions, but not the preceding hours of interrogation. Although the boys' confessions were inconsistent with each other and with objectively verifiable evidence and were arguably coerced, the court admitted the confessions at trial, and the boys were convicted for the jogger's rape. After another man, Matias Reyes, confessed to the rape and a DNA test excluded the boys as the rapists, the district attorney joined the defense in a motion to vacate the boys' convictions. However, the original prosecutors and police on the case criticized the district attorney's decision to join the motion to vacate, sought to discredit Reyes's detailed confession, and offered several theories to explain how the boys might have committed the crime with Reyes. The court vacated the convictions despite this resistance.
256. Id. at 305-07.
257. Id.
258. Id. at 305.
259. Alafair Burke, Improving Prosecutorial Decision-Making: Some Lessons of Cognitive Science, 47 Wm. & Mary L. Rev. 1587, 1593-94 (2006).
260. Id.
261. Id.
262. Id.
263. Id.
264. Findley & Scott, supra note 199, at 319.
265. Id. at 313.
266. Burke, supra note 202, at 1612-14.
267. Id.
268. Peter A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 Wis. L. Rev. 399, 400.
269. Kreimer & Rudovsky, supra note 189, at 556-57.
270. See, e.g., Toney v. Gammon, 79 F.3d 693, 700 (8th Cir. 1996) (reversing the district court's refusal to permit a habeas petitioner alleging ineffective assistance of counsel to conduct DNA tests that were not available at time of trial, where the petitioner consistently maintained his innocence and claimed the test results could exonerate him);
271. Godschalk v. Montgomery County Dist. Att'ys Office, 177 F. Supp. 2d 366 (E.D. Pa. 2001) (holding that Brady requires DNA testing);
272. Sewell v. State, 592 N.E.2d 705, 708 (Ind. Ct. App. 1992) (concluding that fundamental fairness requires the release of evidence for DNA testing when it has exculpatory potential);
273. Dabbs v. Vergari, 570 N.Y.S.2d 765, 767-69 (Sup. Ct. 1990) (holding that due process under Brady requires DNA evidence with high exculpatory potential to be discoverable after conviction);
274. Commonwealth v. Brison, 618 A.2d 420, 423-26 (Pa. Super. Ct. 1992) (concluding that due process requires testing of DNA material due to its extraordinary accuracy in matching cellular material to individuals).
275. But see State v. El-Tabech, 610 N.W.2d 737, 746-47 (Neb. 2000) (holding that there is no constitutional right to demand judicial consideration of newly discovered evidence after the statutory time limit has expired for seeking a motion for new trial based on newly discovered evidence - and that this is true even if the new evidence establishes the defendant's factual innocence).
276. 460 F. Supp. 2d 226 (D. Mass. 2006).
277. Id. at 249.
278. Id. at 229.
279. Id. at 231.
280. Id.
281. Id. at 248 (noting that "none of these interests is adversely affected by DNA testing").
282. Fred C. Zacharias, The Role of Prosecutors in Serving Justice After Convictions, 58 Vand. L. Rev. 171, 192 (2005).
283. Id. at 193-98.
284. Id. at 177-78.
285. Id. at 179.
286. People v. Warney, 750 N.Y.S.2d 731, 732-33 (App. Div. 2002).
287. Jim Dwyer, Inmate to Be Freed as DNA Tests Upend Murder Confession, N.Y. Times, May 16, 2006, at B1.
288. Id.
289. State v. Thomas, 586 A.2d 250, 254 (N.J. Super. Ct. App. Div. 1991).
290. See Adam T. Berkoff, Comment, Computer Simulations in Litigation: Are Television Generation Jurors Being Misled?, 77 Marq. L. Rev. 829, 852 (1994) (citing costs of $1000 to $4000 per second for computer simulations);
291. Alan Gahtan, Computer Technology Invades Litigation Practice (Nov. 6, 1995), http://www.gahtan.com/alan/articles/ctechlit.htm (citing average costs of $1000 per second for computer animations).
292. See Boyle, supra note 28, at 383.
293. Wash. State Supreme Court, Washington State Access to Justice Technology Principles 6 (2004).
294. See Bennett, supra note 33, at 286.
295. 896 A.2d 1170 (Pa. 2006).
296. Id. at 1189.
297. Id. at 1189-90.
298. Wilson & Barstow, supra note 136.
299. Alan D. Sobel, Restoring Confidence in the Criminal Justice System, 86 Judicature 64 (2002).
300. See Armstrong & Possley, supra note 18.
301. Id.;
302. see also Robert H. Aronson, Professional Responsibility: Education and Enforcement, 51 Wash. L. Rev. 273, 313 n.122 (1976). Armstrong and Possley comment that, of the 381 cases of homicide defendants who received new trials because of prosecutorial misconduct, "[o]ne [prosecutor] was fired, but appealed and was reinstated with back pay. Another received an in-house suspension of 30 days. A third prosecutor's law license was suspended for 59 days, but because of other misconduct in the case."
303. Armstrong & Possley, supra note 18. There were no public sanctions, and it is not clear that any of these prosecutors received any professional discipline at all.
304. Id.
305. Professor Aronson notes, An indication of just how strongly the belief in the total partisanship of the prosecutor has been ingrained in Americans is the reaction to the Supreme Court decision in Alcorta v. Texas, 355 U.S. 28 (1957). In Alcorta, the Court struck down a conviction of first degree murder because the prosecutor had 'elicited' inaccurate testimony from a key witness with knowledge of its inaccuracy. The defendant had claimed to have killed his wife in a fit of passion after seeing her kiss a man named Castilleja in a parked car at night. Castilleja testified on direct examination that he had not kissed the deceased and had had only a casual relationship with her. It was subsequently revealed that he had informed the prosecutor prior to trial that he had engaged in sexual intercourse with her on a number of occasions and was told not to volunteer any information about the intercourse, but if specifically asked about it, to answer truthfully. What is most significant is that the prosecuting attorney in Alcorta was subsequently recognized as "Outstanding Texas Prosecutor" by the Texas Law Enforcement Foundation "in recognition and appreciation of his single and matchless contribution to criminal justice in this state." The prosecutor felt that what he had done was "right and proper," and that telling Castilleja to volunteer nothing was simply good practice, taught every day in law school. He feared that the Court's decision threatened to '"wipe out' the entire adversary system of pitting one lawyer against another."
306. Id. (citations omitted).
307. See Edward J. Imwinkelried, Clarifying the Curative Admissibility Doctrine: Using the Principles of Forfeiture and Deterrence to Shape the Relief for an Opponent's Evidentiary Misconduct, 76 Fordham L. Rev. 1295 (2007).
308. See Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007).
309. Id.
310. Id. at 504-05.
311. Wilson & Barstow, supra note 136.
312. Nifong Officially Out, Faces Contempt Charges July 26, N. Country Gazette, July 2, 2007, http://www.northcountrygazette.org/news/2007/07/02/ nifong_out.
313. Id.
314. Brendan Smith, Partner Admits Ethics Violations While Prosecutor, N.Y. Law., Mar. 16, 2007, http://www.nylawyer.com/display.php/file=/news/07/03/ 031607e.
315. Emma Schwartz, Prosecutor-Turned-Partner Who Paid Off Witnesses Waits to See If He'll Keep His License, N.Y. Law., May 11, 2007, http://www.nylawyer.com/display.php/file=/news/07/05/051107q.
316. See Green & Zacharias, supra note 4, at 394;
317. see also Model Rules of Prof'l Conduct R. 3.8 cmt. 1 (2007).
318. Model Rules of Prof'l Conduct R. 3.8(d).
319. See Zacharias, supra note 220, at 174.
320. See Green & Zacharias, supra note 4, at 397.
321. See id. at 398.
322. See id. at 398-99.
323. But see Elizabeth Napier Dewar, Note, A Fair Trial Remedy for Brady Violations, 115 Yale L.J. 1450 (2006) (suggesting that courts should instruct the jury on the duty to disclose when the government fails to fulfill its constitutional duty to disclose favorable evidence and allow the defendant to argue that the failure to disclose raises doubt about the defendant's guilt).
324. See Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 11 Wash. U. L.Q. 713, 818-19 (1999);
325. Anthony Meier, Note, Prosecutorial Immunity: Can § 1983 Provide an Effective Deterrent to Prosecutorial Misconduct?, 30 Ariz. St. L.J. 1167, 1168 (1998).
326. Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
327. See Bruce A. Green, Prosecutorial Ethics as Usual, 2003 U. 111. L. Rev. 1573, 1582.
328. Davis, supra note 16, at 161.
329. Weinstein, supra note 18 (discussing a veteran deputy district attorney in Los Angeles, Lael Rubin, and the three separate committees in her office concerned with ethics, including one dealing exclusively with the office's responsibility to turn over exculpatory information to defense lawyers).
330. Davis, supra note 16, at 165.
331. Green & Zacharias, supra note 12, at 840.
332. Id. at 898-99.
333. See Burke, supra note 202, at 1616-18.
334. See id. at 1576 n. 13.
335. See Burke, supra note 202, at 1618-20.
336. See Zacharias, supra note 220, at 238.
337. See Robert F. Blomquist, Ten Vital Virtues for American Public Lawyers, 39 Ind. L. Rev. 493, 506-17 (2006) (listing ten lawyerly virtues that every lawyer should put into practice: (1) balance, (2) integrity, (3) idealism, (4) compassion, (5) courage, (6) creativity, (7) energy, (8) justice, (9) discipline, and (10) perseverance).