Defying DNA: Rethinking the role of the jury in an age of scientific proof of innocence

Boston University Law Review

Volumn 93, Issue 5, 2013, Pages 1643-1698

  Roth, Andrea ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84889875172     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (238)

1. Arthur John Keeffe et al. Sense and Nonsense About Judicial Notice, 2 Stan. L. Rev. 664, 670-71 (1950).
2. Berry v. Chaplin, 169 P.2d 442, 450 (Cal. Dist. Ct. App. 1946) ("The credibility of Miss Berry, like that of all other witnesses, was a matter for the jury to decide. Having heard all of the testimony, including extensive cross-examination of each witness by opposing counsel, the jury made its determination and the verdict will not be disturbed.").
3. Jury vs. Science, Bos. herald, Apr. 19, 1945, at 20
4. quoted in Jules B. Greene, Comment, "Blood Will Tell!," 1 Mercer L. Rev. 266, 274 (1950)
5. See Brief of Appellant at 2-3, 12-17, 27, People v. Rivera, 962 N.E.2d 53 (111. App. Ct. 2011) (No. 09-1060)
6. see also Rivera, 962 N.E.2d at 60.
7. Rivera, 962 N.E.2d at 62-63
8. Rivera, 962 N.E.2d at 62-63
9. Rivera, 962 N.E.2d at 60.
10. See Andrew Martin, The Prosecution's Case Against DNA, N.Y. Times, Nov. 27, 2011, at MM44, available at http://www.nytimes.com/2011/ll/27/magazine/dna- evidence-lake-county.html.
11. Aviva Orenstein, Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence, 48 San Diego L. Rev. 401, 419 (2011)
12. see also Fred C. Zacharias, The Role of Prosecutors in Serving Justice After Convictions, 58 Vand. L. Rev. 171, 173 (2005) (describing "prosecutors' ethical duty to serve justice after convictions are complete" as "particularly neglected").
13. Samuel R. Gross et al. Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 526 n.8 (2005).
14. 443 U.S. 307 (1979).
15. Chad M. Oldfather, Appellate Courts, Historical Facts, and the Civil-Criminal Division, 57 Vand. L. Rev. 437,478 (2004).
16. Burks v. United States, 437 U.S. 1, 16-17 (1977)
17. see also Jon O. Newman, Beyond "Reasonable Doubt," 68 N.Y.U. L. Rev. 979, 997 (1993) ("So when the Supreme Court formulated its standards for testing sufficiency in civil and criminal cases, it naturally directed reviewing judges not to weigh the credibility of witnesses.").
18. See generally James Q. Whitman, The Origins of Reasonable Doubt 12-13 (2007) (explaining the prevalence of so-called "moral comfort procedures" in Western legal history that are "designed to guarantee that judges in capital cases, and people like them, can take away with them a necessary dose of moral comfort").
19. See generally George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575, 577 (1997) ("We say that lie detecting is what our juries do best. In the liturgy of the trial, we name the jurors our sole judges of credibility and call on them to declare each witness truthteller or liar.").
20. 443 U.S. 307 (1979).
21. Elisabeth Stoffeimayr & Shari Seidman Diamond, The Conflict Between Precision and Flexibility in Explaining "Beyond a Reasonable Doubt," 6 psychol. pub. Pol'y & l. 769, 770 (2000).
22. See Barbara J. Shapiro, "To a Moral Certainty": Theories of Knowledge and Anglo-American Juries 1600-1850, 38 Hastings L.J. 153, 157-58 (1986).
23. See Arthur P. Will, A Treatise on the Law of Circumstantial Evidence 303 (1896) (contrasting "mathematical" with "moral certainty").
24. Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instructions, 67 tenn. L. Rev. 45, 65 (1999)
25. see also Victor v. Nebraska, 511 U.S. 1, 10-11 (1994)
26. Commonwealth v. Webster offers the first commonly cited reasonable doubt instruction from American courts, [E]very thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which ... leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. ... [T]he evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment.... This we take to be proof beyond reasonable doubt. ...
27. Mass. (5 Cush.) 295, 320 (1850)
28. see also Victor, 511 U.S. at 11-12 (describing moral certainty as "equivalent" to reasonable doubt and discussing history of concepts).
29. See Barbara J. Shapiro, The Beyond Reasonable Doubt Doctrine: 'Moral Comfort' or Standard of Proof?, 2 L. & Human. 149, 173 (2008) ("[T]he available evidence does not support a deep-seated and persisting fear for the souls of jurors as the dominant motivation behind [the standard]. Rather the evidence, particularly that surrounding the satisfied conscience, moral certainty and beyond reasonable doubt, points to a concern for accurate fact-finding and the 'this world' fate of defendants."). Whitman explained in response that his thesis is simply that moral comfort, and not accurate factfinding, was the predominant concern of jurors in premodern trials, and that any history of the reasonable doubt standard should reflect that reality.
30. See James Q. Whitman, Response to Shapiro, 2 L. & Human. 175, 177 (2008).
31. William Wills, An Essay on the Principles of Circumstantial Evidence 6 (Sir Alfred Wills ed, 5th ed. 1905) (defining such "belief' as underlying concept of "moral certainty").
32. Thomas Starkie, A Practical Treatise of the Law of Evidence, and Digest of Proofs, in Civil and Criminal Proceedings 577 (Benjamin Gerhard ed, Philadelphia, T. & J.W. Johnson, Law Booksellers 1842).
33. See, e.g., Abraham S. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149,1157 & n.22 (1960) (discussing the development of the judge's power to direct verdicts).
34. See Thompson v. City of Louisville, 362 U.S. 199, 206 (1960) (holding that a conviction violates due process where the state presents "no evidence" of an essential element of a crime)
35. Other courts expressly rejected this standard, holding that this was "not the generally accepted rule" and that "beyond a reasonable doubt is a direction to the jury, not a rule of evidence." United States v. Valenti, 134 F.2d 362, 364 (2d Cir. 1943).
36. See, e.g., D. Michael Risinger, Unsafe Verdicts: The Needfor Reformed Standards for the Trial and Review of Factual Innocence Claims, 41 HOUS. L. REV. 1281, 1314 (2004) (explaining that the sufficiency standard in a criminal case "essentially means accepting at face value all testimonial evidence in favor of the verdict and assuming all testimonial evidence to the contrary to have been rejected on credibility grounds").
37. Jackson v. Virginia, 443 U.S. 307, 318 n.ll (1979)
38. Jackson, 443 U.S. at 319.
39. 397 U.S. 358, 364(1970).
40. Jackson, 443 U.S. at 333 (Stevens, J, concurring) ("Indeed, the very premise of Winship is that properly selected judges and properly instructed juries act rationally, that the former will tell the truth when they declare that they are convinced beyond a reasonable doubt, and the latter will conscientiously obey and understand the reasonable-doubt instructions they receive before retiring to reach a verdict, and therefore that either factfinder will itself provide the necessary bulwark against erroneous factual determinations. To presume otherwise is to make light of Winship.").
41. Burks v. United States, 437 U.S. 1, 16-17 (1977)
42. See, e.g., Keith A. Findley, Innocence Protection in the Appellate Process, 93 Marq. L. Rev. 591, 602 (2009) ("Although the Supreme Court in Jackson cautioned against equating this rule with the 'no-evidence' standard, most courts have applied the standard so deferentially that in practice they uphold convictions unless there is essentially no evidence supporting an element of the crime.")
43. John C. Jeffries, Jr. & William J. Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Cases, 57 U. Chi. L. rev. 679, 726 (1990) ("While this standard sounds hard to meet in the abstract, in practice it is even harder: simple insufficiency-of-the-evidence relief on federal habeas is almost unheard of.")
44. See, e.g., Iowa v. Smith, 508 N.W.2d 101, 103 (Iowa Ct. App. 1993) ("The testimony of a witness may be so impossible and absurd and self-contradictory that it should be deemed a nullity by the court." (quoting Graham v. Chi. & Nw. Ry. Co., 199 N.W. 708, 711 (Iowa 1909)) (internal quotation marks omitted)). The doctrine was invoked most often in the rape context in imposing a corroboration requirement on complainant testimony deemed "inherently improbable."
45. See, e.g., State v. Ross, 449 P.2d 369, 373 (Idaho 1968)
46. (quoting State v. Elsen, 187 P.2d 976, 978 (Idaho 1947)).
47. United States v. Stromberg, 179 F. Supp. 278,280 (S.D.N.Y. 1959).
48. United States v. Scheffer, 523 U.S. 303, 313 (1998)
49. quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891).
50. See, e.g., Charles Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 Harv. L. Rev. 1357, 1370 (1985) (describing how cases turning on circumstantial evidence are less likely to inspire deference to the verdict, because such evidence "is available for anyone to assess, and any interested observer stands in as good a position as the juror to make an evaluation").
51. Scheffer, 523 U.S. at 313 (alteration in original) (quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973)).
52. John B. Meixner, Liar, Liar, Jury's the Trier? The Future of Neuroscience-Based Credibility Assessments in the Court, 106 Nw. U. L. Rev. 1451,1463-73 (2012) (reviewing literature on jurors' ability to assess credibility based on demeanor and contextual cues).
53. See Know the Cases, Innocence Project, http://www.innocenceproject.org/ know (last visited Aug. 11, 2013) (over 300 exonerations as of August 2013). I use "exoneration" to mean public acknowledgment by state officials that a previously convicted defendant is factually innocent.
54. See Brandon Garrett, Judging Innocence, 108 Colum. L. Rev. 55,112 (2008).
55. Mirjan Dama Ska, Evidence Law Adrift 143 (1997).
56. William J. Stuntz, The Collapse of American Criminal Justice 227 (2011).
57. Scott v. Harris, 550 U.S. 372, 378 (2007).
58. See, e.g., 2 Wigmore, Evidence § 875 (2d ed. 1923) ("A legal practice which has admitted the evidential use of the telephone, the phonograph, the dictograph, and the vacuum-ray, within the past decades, cannot be charged with lagging behind science.")
59. Notes and Legislation, Scientific Gadgets in the Law of Evidence, 53 Harv. L. Rev. 285, 285 (1939) ("It is the perennial boast of the law that in the ascertainment of facts it will avail itself of any accepted scientific discovery.").
60. Jennifer L. Mnookin & Nancy West, Theaters of Proof: Visual Evidence in Call Northside 111, 13 Yale J.L. & Human. 329,344 (2001).
61. See generally Michael Lynch et al. Truth Machine: The Contentious History of DNA Fingerprinting (2008).
62. Jennifer L. Mnookin, The Image of Truth: Photographic Evidence and the Power of Analogy, 10 Yale J.L. & Human. 1,57(1998).
63. James R. Richardson, Scientific Evidence in the Law, 44 Ky. L.J. 277, 285-86 (1955)
64. See, e.g., United States v. Bursten, 560 F.2d 779, 785 (7th Cir. 1977) ("[J]udges loathe the specter of trial by machine, wherein each man's sworn testimony may be put to the electronic test.")
65. People v. Barbara, 255 N.W.2d 171, 194 (Mich. 1977) ("Further concern is based on a fear that by use of the polygraph, we run dangerously close to substituting a trial by machine for a trial by jury.").
66. See United States v. Scheffer, 523 U.S. 303, 313 (1998) ("Unlike other expert witnesses who testify about factual matters outside the jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth.").
67. United States v. Scheffer, 523 U.S. 303, 313-14 (1998). This theme runs through culture as well: in describing the depiction of a lie detector in the film Call Northside 777
68. See Henry T. Greely, Law and the Revolution in Neuroscience: An Early Look at the Field, 42 Akron L. Rev. 687, 698 (2009) ("[A]t least two companies are already selling fMRI-based lie detection in the United States.").
69. See, e.g., United States v. Semrau, No. 08-10074 Ml/P, 2010 WL 6845092, at 14 (W.D. Tenn. June 1,2010) (excluding defense-proffered fMRI results under Dauberi).
70. Julie Seaman, Black Boxes: fMRI Lie Detection and the Role of the Jury, 42 Akron L. Rev. 931, 932, 938 (2009)
71. citing Sean A. Spence et al, 'Munchausen's Syndrome by Proxy' or a 'Miscarriage of Justice'?: An Initial Application of Functional Neuroimaging to the Question of Guilt Versus Innocence, 23 Eur. Psychiatry 309, 309-10 (2007)
72. See generally Teneille Brown & Emily Murphy, Through a Scanner Darkly: Functional Neuroimaging as Evidence of a Criminal Defendant's Past Mental States, 62 Stan. L. Rev. 1119 (2010) (describing issues surrounding the use of fMRI brain imaging as evidence).
73. I do not purport to resolve the long-standing debate about which systemic goal -accuracy or acceptability of verdicts - should be paramount. I do claim that, to the extent courts have invoked acceptability concerns to perpetuate the blind deference rule, such concerns are unfounded in an era of cases like Chaplin and Rivera.
74. But see, e.g., Scott v. Harris, 550 U.S. 372, 378 (2007) (relying on a videotape when there was no evidence in the case that the videotape had been doctored).
75. See, e.g., Jennifer Medina, Police Beating Victim Who Asked 'Can We All Get Along?,' N.Y. Times, June 18, 2012, at Al, available at http://www.nytimes. eom/2012/06/l 8/us/rodney-king-whose-beating-led-to-la-riots-dead-at-47.html ("Many people thought the video alone would lead to the conviction of the officers.")
76. Bush on Los Angeles Riots, History (Apr. 29, 1992), http://www.history. eom/speeches/bush-on-los-angeles-riots#bush" on-los-angeles-riots (reporting then-President George H.W. Bush's statement that "what you saw and what I saw ... was revolting" with respect to the videotape after the acquittal).
77. See, e.g., Dustin F. Robinson, Note, Bad Footage: Surveillance Laws, Police Misconduct, and the Internet, 100 Geo. L.J. 1399, 1400 (2012) (discussing the national dialogue on racism following the King verdict).
78. The O.J. Simpson case is another example of an acquittal that many citizens viewed as contrary to overwhelming evidence of guilt, including DNA. But that case, for many reasons, is a difficult one from which to draw generalizations. Many viewed the acquittal as an act of nullification rather than a failure to credit the State's witnesses. And a decent portion of the public felt that the DNA evidence had been effectively rebutted as unreliable.
79. E.g., United States v. Dougherty, 473 F.2d 1113, 1132-34 (D.C. Cir. 1972) ("This so-called right of jury nullification is put forward in the name of liberty and democracy. ... ").
80. See, e.g., Matthew J. Reedy, Note, Witnessing the Witness: The Case for Exclusion of Eyewitness Expert Testimony, 86 Notre Dame L. Rev. 905, 917 (2011) (discussing studies showing lack of scientific consensus on theories underlying eyewitness expert testimony on various factors such as weapons focus, effect of stress, and cross-racial identification).
81. See, e.g., State v. Goldsby, 650 P.2d 952, 954 (Or. Ct. App. 1982) (justifying the per se rule of exclusion for eyewitness-identification experts because such experts invade the "province of the jury").
82. See, e.g., Johnson v. State, 438 So. 2d 774, 111 (Fla. 1983) ("[A] jury is fully capable of assessing a witness' ability to perceive and remember, given the assistance of cross-examination and cautionary instructions, without the aid of expert testimony.")
83. Deborah Davis & Elizabeth F. Loftus, The Dangers of Eyewitnesses for the Innocent: Learning from the Past and Projecting into the Age of Social Media, 46 New Eng. L. Rev. 769, 782 (2012)
84. See, e.g., Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa. 1995) (excluding eyewitness identification expert in part because jury was able to see defendant "attack the witnesses' credibility and point out inconsistencies of all the eyewitnesses at trial through cross-examination and in his closing argument").
85. See Dist. Attorney's Office v. Osborne, 557 U.S. 52, 62 (2009).
86. See United States v. Scheffer, 523 U.S. 303, 313-14 (1998).
87. See, e.g., David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. Davis L. Rev. 893, 927 (2013) ("Social scientists have increasingly raised the issue whether courts, in fact, employ Daubert more lackadaisically in criminal trials - especially in regard to prosecution evidence ....").
88. See, e.g., Edwin Borchard, Convicting the Innocent (1932). I use the term "factually innocent" as compared to "wrongfully convicted," a broader term that would include those whose factual innocence is contestable but whose conviction was deemed unfair based on prosecutorial misconduct, erroneously admitted evidence, and the like.
89. See Jay D. Aronson & Simon A. Cole, Science and the Death Penalty: DNA, Innocence, and the Debate over Capital Punishment in the United States, 34 L. & Soc. inquiry 603, 609-10 (2009) (describing disagreement in the legal profession about the factual innocence of those included in such compilations, and arguing that "with a few exceptions, cases of innocence have always been contestable" before DNA (citation omitted)).
90. David A. Moran, In Defense of the Corpus Delicti Rule, 64 Ohio St. L.J. 817, 817 (2003).
91. Commonwealth v. Zammarelli, 17 Pa. D. & C. 229, 229 (Ct. Quarter Sessions of Pa, Fayette Cnty. 1931) (bastardy proceeding in which defendant was found guilty notwithstanding undisputed blood test showing nonpaternity, but the court granted a new trial).
92. Gerald Robin Griffin, Note, Blood Grouping Tests in Bastardy Proceedings, 40 Ky. L.J. 200, 200 (1952) (describing criminal bastardy cases involving blood-typing evidence offered by the defense to prove nonpaternity).
93. Zammarelli, 17 Pa. D. & C at 229-31 (discussing how ABO blood typing works and how it can demonstrate definitive nonpaternity).
94. See Frederick R. Dixon, Recent Decisions, Bastardy Proceedings - Blood Grouping Tests, 2 W. Res. L. Rev. 83,86 & n.26 (1950) (citing Zammarelli, 17 Pa. D. & C. at 229).
95. See Berry v. Chaplin, 169 P.2d 442,444 (Cal. Dist. Ct. App. 1946).
96. Malcolm McDermott, The Proof of Paternity and the Progress of Science, 1 How. L.J. 40, 50(1955).
97. See, e.g., Jordan v. Mace, 69 A.2d 670 (Me. 1949) (granting a new trial in a paternity suit based on blood test results)
98. Comm'r of Welfare ex rel. Tyler v. Costonie, 97 N.Y.S.2d 804 (N.Y. App. Div. 1950) (granting a new trial in a paternity suit based on blood testing)
99. Jordan, 69 A.2d at 672.
100. Tyler, 97 N.Y.S.2d at 804 (also granting a new trial)
101. Wright, 17 N.E.2d at 429 (sustaining the lower court's grant of a new trial and mentioning the dismissal of the motion for a JNOV).
102. See, e.g., Herbert R. Baer, Radar Goes to Court, 33 N.C. L. Rev. 355, 369 (1955) (cataloging cases in which courts set aside verdicts of guilty and ordered new trials based on exculpatory blood test paternity results)
103. Leo Kearney O'Drudy Jr., Comment, Blood Grouping Test Results, 3 ViLL. L. Rev. 180, 180 (1958) (pointing out the curious result that in Pennsylvania exculpatory blood testing is grounds for a new trial but not a directed verdict).
104. Jordan v. Davis, 57 A.2d 209, 210 (Me. 1948)
105. see also Berry v. Chaplin, 169 P.2d 442, 451 (Cal. Dist. Ct. App. 1946) ("When scientific testimony and evidence as to facts conflict, the jury or the trial court must determine the relative weight of the evidence.").
106. State ear rel. Slovak v. Holod, 24 N.E.2d 962,963 (Ohio Ct. App. 1939).
107. citing Madeline Schoch, Determination of Paternity by Blood-Grouping Tests: The European Experience, 16 S. Cal. L. Rev. 177,190 (1943).
108. Note, The Rules of the Road and Radar, 33 Va. L. Rev. 71, 72 (1947).
109. See, e.g., Commonwealth v. D'Avella, 162 N.E.2d 19, 21 (Mass. 1959) ("The reliability of such tests to prove nonpaternity is well established as a scientific fact.")
110. see also Charles T. McCormick, Handbook of the Law of Evidence 381-82 (1954) (suggesting that the Chaplin court should not have "sustained" the verdict because it was contrary to "incontrovertible physical facts")
111. Felver A. Rowell Jr., Comment, Admissibility of Evidence Obtained by Scientific Devices and Analysis, 6 Ark. L. Rev. 181, 193 (1952) ("[I]f the serological tests show a mistake or attempted imposition [of liability against the wrong man] the jury should not be allowed to ratify the error.").
112. Comment, Blood-Test Results as Conclusive Proof of Non-Paternity, 44 J. Crim. L. Criminology & Police Sci. 472,477 (1953).
113. Frederick K. Beutel, An Outline of the Nature and Methods of Experimental Jurisprudence, 51 Colum. L. Rev. 415, 428 (1951) (citing Berry v. Chaplin, 169 P.2d 442 (Cal. Dist. Ct. App. 1946)).
114. Nat'l Conf. on Unif. State Laws, Handbook of the National Conference on Uniform State Laws & Proceedings of the Annual Conference Meetings in Its Sixty-First Year 434 (1952) [hereinafter Handbook]
115. Hubert W. Smith, Scientific Proof, 52 Yale L.J. 586,605 n.53 (1943).
116. See, e.g., Steuart Henderson Britt, Blood-Grouping Tests and the Law: The Problem of the 'Cultural Lag,' 21 Minn. L. Rev. 671, 699 (1937) ("A decision can easily rest on sympathy for a particular woman or it can rest on addiction to the vague symbols of 'Womanhood' and 'Mother.' The judge and jury may hear how a poor, innocent girl was taken advantage of by a hard, cruel man. He is a rascal, they may say, even to be accused in this affair - make him pay!")
117. See, e.g., Jordan v. Mace, 69 A.2d 670, 672 (Me. 1949) ("The jury has the duty to determine if the conditions existed which made the biological law operative. That is to say, were the tests properly made?"). It is not clear from the sources how the judge knew that the jury had found this particular fact.
118. See, e.g., Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics: Regulations Banning Sex Between Domestic Relations Attorneys and Their Clients, 23 Harv. Women's L.J. 1, 35 (2000) (mentioning reduced number of illegitimacy claims as birth control became widely available).
119. See, e.g., Heidi Meinzer, Essay, Idaho's Throwback to Elizabethan England: Criminalizing a Civil Proceeding, 34 Fam. L.Q. 165, 167, 169-70 (2000) (observing that paternity proceedings have largely shifted from criminal to civil court).
120. See Press Release, Innocence Project, Louisiana Man on Death Row for 15 Years Becomes 300th Person Exonerated by DNA Evidence (Sept. 28,2012), available at http://w ww.innocenceproject.org/Content/Louisiana-Man-on-Death-Row-for-15- Years-Becomes-300th-Person-Exonerated-by-DNA-Evidence.php. I use "exoneration" to mean public acknowledgment by state officials that a previously convicted defendant is factually innocent.
121. See, e.g., Brandon Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 230 (2011).
122. Simon A. Cole & Michael Lynch, The Social and Legal Construction of Suspects, 2 Ann. Rev. L. & Soc. Sci. 39,47 (2006) ("Such exonerations often were obtained only after strenuous efforts to reopen the cases in the face of formidable procedural hurdles. District attorneys sometimes resisted such efforts, while expressing strong confidence in the eyewitness testimony, confessions, and other forms of ordinary and forensic evidence that led to the original convictions.").
123. Radley Balko, How Many More Are Innocent?, reason (May 2010), http://reason.com/archives/2010/04/29/ho w-many-more-are-innocent ("The certainty of DNA testing means we can be positive the 250 defendants listed in the Innocence Project report didn't commit the crimes for which they were convicted.").
124. See, e.g., Tom Kertscher, Prosecutors Won't Retry Innocence Project Case, J. Sentinel Online (July 27,2009), http://www.jsonline.com/news/milwaukee/ 51793602.html (stating that prosecutors in Robert Lee Stinson case claimed that staleness of case, and not belief in innocence based on DNA exclusion, animated their decision not to prosecute).
125. See, e.g., Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 calif. L. Rev. 721, 724 (2007) (referring to "new, more reliable methods" of forensic testing).
126. See, e.g., Bert-Jaap Koops & Maurice Schellekens, Forensic DNA Phenotyping: Regulatory Issues, 9 Colum. Sci. & Tech. L. Rev. 158,161 (2008).
127. See, e.g., Lisa Kern Griffin, Narrative, Truth, and Trial, 101 Geo. L.J. 281, 313 (2013).
128. See, e.g., Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 L. & Hum. Behav. 469,472 (1997) (empirical study showing that confession evidence is "more potent" compared to eyewitness identification testimony and bad character evidence)
129. Saul M. Kassin et al, Police-Induced Confessions: Risk Factors and Recommendations, 34 L. & Hum. Behav. 3, 6-7, 9 (2010) (discussing the reforms brought about through judicial concern with juror overreliance on confession evidence).
130. Dan Simon, In Doubt: The Psychology of the Criminal Justice Process 161 (2012).
131. See Saul M. Kassin, Why Confessions Trump Innocence, 67 Am. Psychologist 431, 440-41 (2012).
132. See generally Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & criminology 429, 492 (1998) ("The sixty false confessions described in this article dispel the myth ... that the physiological interrogation methods [police] advocate do not cause suspects to confess to crimes they did not commit. In fact, the opposite is true.").
133. See, e.g., Richard Leo, Police Interrogation and American Justice 165-94 (2008) (explaining how police "construct[] culpability" by continuing interrogation until they extract a confession "story" that they view as consistent with their theory of guilt).
134. See, e.g., Brandon Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 85 & n.113 (2008).
135. See People v. Rivera, 962 N.E.2d 53, 55 (111. App. Ct. 2011).
136. See Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891,946 (2004).
137. To be clear, a defendant need not prove his factual innocence to be legally entitled to an acquittal; the state retains the burden of proving guilt beyond a reasonable doubt. My point here is to explore whether definitive proof of innocence should affect the deference given on sufficiency review to a jury's credibility finding supporting guilt.
138. See James S. Liebman, The New Death Penalty Debate: What's DNA Got to Do with It?, 33 Colum. Hum. Rts. L. Rev. 527,543 (2002)
139. Of course, the presence of sperm from another person, even if unrelated to a charged sexual assault, need not be entirely "innocent." In the case of an underage victim, the contributor would presumably be guilty of a sex crime.
140. See, e.g., David S. Faigman et al, 4 Modern Scientific Evidence § 31:13 (2012) (discussing possibility of DNA "transfer").
141. See, e.g., Julia Terruso, Defense Argues DNA Evidence Proves Innocence of N.J. Man Accused of 1976 Murder, N.J. Star-Ledger (Dec. 4, 2012), http://www.nj.com/union/index.ssf/2012/12/defense-argues-dna-evidence-of.html (defendant in homicide trial argued that someone else's DNA was found on wine bottle used to kill victim).
142. People v. Leiterman, No. 265821, 2007 WL 2120514, at 2 (Mich. Ct. App. July 24, 2007).
143. William c. Thompson, Tarnish on the "Gold Standard": Understanding Recent Problems in Forensic DNA Testing, 30 champion 10, 10, 13 (2006) (discussing two "false 'cold hit[s]"' due to contamination)
144. William C. Thompson, The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Identification) 25, 28-29 (Aug. 12, 2008) (unpublished manuscript), http://www. councilforresponsiblegenetics.Org/pageDocuments/H 4T5EOYUZI.pdf (describing examples of false cold hits due to likely contamination between samples and, later, an admitted false cold hit due to suspected contamination in New Jersey case)
145. Maura Dolan & Jason Felch, The Peril of DNA: It's Not Perfect, L.A. Times (Dec. 26,2008), http://articles.latimes.com/2008/dec/26/local/me-dna26 (describing a New Jersey case with a false cold hit due to contamination).
146. See, e.g., Laurence D. Mueller, Can Simple Population Genetic Models Reconcile Partial Match Frequencies Observed in Large Forensic Databases?, 87 J. genetics 101 (2008) (discussing potential explanations for why a particular set of samples showed a large proportion of "locus" matches).
147. See, e.g., Bruce Budowle et al. Source Attribution of a Forensic DNA Profile, 2 Forensic Sci. Comm. (2000), http://www.fbi.gov/about-us/lab/forensic- science-communicat ions/fsc/july2000/source.htm (explaining that the chance of siblings matching in some populations is 1 in 40,000).
148. David R. Paoletti et al. Empirical Analysis of the STR Profiles Resulting from Conceptual Mixtures, 50 J. Forensic Sci. 1361,1362 (2005) (discussing homozygous alleles and explaining that some alleles may be effectively undistinguishable from others).
149. Douglas H. Ginsburg & Hyland Hunt, The Prosecutor and Post-Conviction Claims of Innocence: DNA and Beyond?, 7 Ohio St. J. Crim. L. 771, 785 (2010) (mentioning the problem of false negatives when a sample has degraded or is contaminated)
150. see also People v. McSherry, 14 Cal. Rptr. 2d 630, 636 n.6 (Cal. Ct. App. 1992) (describing how the State's experts opined that DNA exclusion was due to "allelic dropout" caused by degradation from the age and small quantity of the sample).
151. 916 A.2d 922 (D.C. 2007).
152. See 60 Minutes: Chicago: The False Confession Capital (CBS television broadcast Dec. 9, 2012), available at http://www.cbsnews.com/video/watch/?id= 50136707n (discussing Chicago's comparatively high prevalence of false confessions, especially from teenagers).
153. See Three Men from Cook County, Illinois, Exonerated of 1991 Rape and Murder, Exonerations of Two Others to Follow, innocence project (Nov. 11, 2011), http://www.in nocenceproject.org/Content/Three-Men-from-Cook-County-Illinois- Exonerated-of-1991 -Rape-and-Murder-Exonerations-of-Two-Others-to-Follow.php ("After DNA testing linked a rapist to the 1991 rape and murder of a 14-year-old southwest suburban girl, a Cook County Circuit Court judge today set aside the convictions of three men who were convicted of the crime by confessions now known to be false.").
154. Hobbs v. Cappelluti, 899 F. Supp. 2d 738, 738 (N.D. 111. 2012) ("Police quickly identified him as a suspect and, after interrogating him for 24 hours, coerced him into falsely confessing. This confession was then used to detain him on murder charges for over five years ...")
155. Hobbs, 899 F. Supp. 2d at 750-51
156. Dan Hinkel, Suit Against Prosecutors Continues, Chi. Trib, Nov. 18, 2012, at C5 ("Though DNA indicated his innocence in 2007, prosecutors continued to press charges until the evidence led authorities to another man in 2010, and Hobbs was freed.").
157. Hobbs, 899 F. Supp. 2d at 751.
158. Hobbs, 899 F. Supp. 2d at 751.
159. Dan Rozek & Vernon Clement Jones, DNA Ends Case Against Father, Jerry Hobbs Freed After Murder Charges Dropped, Chi. Sun times, Aug. 5, 2010, at 2.
160. In Washington state, postconviction DNA testing exonerated Ted Bradford after he had served nine years on rape and burglary charges. Even then, the State refilled charges only for the case to result in acquittal.
161. See Prosecutors Refile Charges Against Ted Bradford, Choosing His Confession over DNA Evidence that Excludes Him [sic] Courts [sic] Previously Overturned Conviction, UNrv. Wash. Sch. L. (Oct. 24, 2008), http://www.law. washington.edu/News/Articles/Default.aspx?YR=2008&ID=Bradford
162. Ted Bradford, Nat'l Registry Exonerations, http://www.law.umich.edu/ special/exoneration/Pages/casedetail.aspx?caseid=3040 (last visited Aug. 21, 2013).
163. John Kogut, Nat'l Three Ashville Area Men, Asheville Citizen-Times (June 7, 2012), http://www.citizen-times.com/article/20120608/NEWS/306080047/ Commission-investigating-innocence-claims-by-three-Asheville-area-men.
164. Tice v. Johnson (The Norfolk Four Case), 647 F.3d 87 (4th Cir. 2011).
165. See Chronology, Norfolk Four 1-2, http://www.norfolkfour.com/images/ uploads/pd f-files/Chronology.pdf (last visited Aug. 21, 2013) (chronicling the factual background and subsequent conviction of the Norfolk Four).
166. See generally Tom Wells & Richard A. Leo, The Wrong Guys: Murder, False Confessions, and the Norfolk Four (2008). Ballard matched DNA on blood under the victim's fingernails, on semen in a vaginal swab, and on semen on a blanket near the body.
167. Real Killer, Norfolk Four, http://www.norfolkfour.com/index.php7/norfolk/ realkiller (last visited Aug. 21,2013).
168. See Confession and Evidence Comparison Chart, NORFOLK FOUR 1, http://www.norfolkfour.com/images/uploads/pdf-files/Confession-Evidence- Comparison-Chart.PDF (last visited Aug. 21, 2013). The number of conspirators also curiously kept increasing. First, defendant Joseph Dick implicated only himself and defendant Danial Williams, but when their DNA matched none of the semen at the scene, police came back and extracted a second confession from Dick alleging that others were involved.
169. See Tice, 647 F.3d at 92. Two of the men pled guilty before trial.
170. See Williams v. Commonwealth, No. 1099-99-1, 2000 WL 1014692, at *1 (Va. Ct. App. July 25, 2000)
171. Brief of Petitioner-Appellant at 18, Wilson v. Flaherty, 689 F.3d 332 (4th Cir. 2012) (No. 11-6919). Wilson was convicted by a jury of rape, and Tice of rape and murder. Tice, 647 F.3d at 93. At defendant Derek Tice's trial, the
172. See Williams v. Fahey, 81 Va. Cir. 204, 206 (2010)
173. Williams v. Fahey, No. 3:09CV769, 2011 WL 2443722, at *1 (E.D. Va. June 14, 2011)
174. Dick v. Fahey, No. 3:10CV00505, 2011 WL 2443898, at *1 (E.D. Va. June 14, 2011). However, the Fourth Circuit recently found that Wilson is no longer "in custody" for the purposes of his habeas petition.
175. See Wilson v. Flaherty, 689 F.3d 332, 339 (4th Cir. 2012).
176. See, e.g., State v. Hammond, 604 A.2d 793, 794 (Conn. 1992) (granting defendant a new trial on discretionary "weight of the evidence" grounds where circumstantial evidence of guilt was difficult to reconcile with innocence but DNA and blood typing exclusions were equally compelling and difficult to reconcile with guilt)
177. Connecticut's Doubtful Claim to Fame: DNA Results Rejected by Jury, Sci. Sleuthing Rev, Winter 1990, at 6 (stating about the Hammond case that "[t]he jury trial is still not ... a court of science")
178. Jack Ewing, Connecticut Jury Disregards DNA Test, Nat'l L.J, Apr. 23, 1990, at 9 (discussing, among other things, that the attorneys were surprised with Hammond case's result)
179. cf. State v. McSherry, 14 Cal. Rptr. 2d 630, 636 (Cal. Ct. App. 1992) (holding that fact that defendant was excluded as source of semen on victim's underwear in rape case did not merit new trial where evidence of guilt was "overwhelming[]," including victim's unexplained knowledge of layout of crime scene, defendant's grandmother's house, and that chance of contamination was real, given that underwear was highly soiled and a one year old before being tested).
180. See, e.g., Jeffrey Deskovic, Nat'l Registry Exonerations, http://www.law.umich.e du/special/exoneration/Pages/casedetail.aspx?caseid=3171 (last visited Aug. 21, 2013) ("The victim was found naked and her autopsy revealed genital trauma. Semen was identified on the vaginal swabs from her rape kit but no semen was observed on her clothes. DNA testing was conducted before trial. The results showed that Deskovic was not the source of semen in the rape kit.")
181. People v. Deskovic, 607 N.Y.S.2d 957 (N.Y. App. Div. 1994) (rejecting sufficiency argument based on defendant's stationhouse confession, and failing to mention DNA exclusion or evidence to support prosecutor's consensual sex theory to explain presence of semen in vaginal swab)
182. DNA Proves Jeffrey Deskovic's Innocence 16 Years After He Was Wrongly Convicted as a Teenager, Innocence Project (Sept. 20, 2006), http://www.innocenceproject.org/Content/DNA-Proves-Jeffrey-Deskovics-Innocen ce-l 6-Years-After-He-Was-Wrongly-Convicted-as-a-Teenager.php (indicating that Deskovic's conviction was vacated after database search finally ended in a "hit").
183. See, e.g., People v. Hatchett, No. 211131, 2000 WL 33419396, at *1-2 (Mich. Ct. App. May 19, 2000) (rejecting sufficiency challenge in rape case, citing victim's identification of defendant about which she had "no doubt," fact that defendant was driving victim's car three days after rape, and defendant's detailed confession, all notwithstanding three alibi witnesses and DNA exclusion from semen in vagina, mentioning the possibility that semen came from spouse, even though spouse was excluded as source).
184. See Police Perjury and Jailhouse Snitch Put Rolando Cruz on Death Row, Bluhm Legal Clinic Center on Wrongful Convictions, http://www.law.northwestern. edu/legalclinic/wrongfulconvictions/exonerations/il/rolando-cruz.html (last visited Aug. 21, 2013) ("At his third trial, however, a high-ranking police officer admitted under oath that Cruz had not made the inculpatory statement attributed to him by detectives at the previous trials. The trial judge then directed a verdict of not guilty.").
185. See People v. Rivera, 962 N.E.2d 53, 67 (111. App. Ct. 2011) ("The State failed to provide sufficient independent evidence to corroborate defendant's confession, especially in light of the DNA evidence. The State failed to provide corroboration for defendant's use of a dangerous weapon; defendant's sexual penetration of the victim by the use of force; and the victim's death during the attempt or commission of the aggravated criminal sexual assault.").
186. See, e.g., La. Rev. Stat. Ann. § 15:438 (2012) ("The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.").
187. See Michael S. Pardo, Second-Order Proof Rules, 61 Fla. L. Rev. 1083, 1105 (2009).
188. Tice v. Johnson (The Norfolk Four Case), 647 F.3d 87 (4th Cir. 2011).
189. See Jeffrey Toobin, The Wrong Guys, New Yorker, Aug. 24, 2009, at 20, available at http://www.newyorker.com/talk/2009/08/24/090824ta-talk-toobin ("[Richard Leo, a law professor at the University of San Francisco, is an expert on false confessions. ... Troubled by what he heard ... Leo wound up devoting much of the next seven years of his life to the case.")
190. Frontline: The Confessions (PBS television broadcast Apr. 21, 2010), available at http://www.pbs.org/wgbh/pages/frontline/the-confessions/interviews/ richard-leo.html (interviewing Professor Richard Leo about false confessions and the Norfolk Four).
191. The Jackson standard has been critiqued as imprecise.
192. Tice v. Johnson (The Norfolk Four Case), 647 F.3d 87 (4th Cir. 2011).
193. These are, in essence, the facts of United States v. Semrau, No. 07-10074 Ml/P, 2010 WL 6845092, at *14 (W.D. Tenn. June 1, 2010) (excluding such evidence under Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579 (1993)).
194. See, e.g., Richard Friedman, Squeezing Daubert Out of the Picture, 33 Seton Hall L. Rev. 1047, 1047 (2003) ("[T]he standards for treatment of expert evidence should differ depending on the litigation context. Standards should be very lenient for criminal defendants, and tougher for prosecutors, with the standards for civil litigants somewhere in between.").
195. See generally Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329 (1971) (discussing the role and danger associated with mathematics in the trial context).
196. Berry v. Chaplin, 169 P.2d 442 (Cal. Dist. Ct. App. 1946).
197. See Joseph Goldstein, New York Sees Errors on DNA in Rape Cases, N.Y. Times, Jan. 11, 2013, at Al, available at http://www.nytimes.eom/2013/0l/ll/ nyregion/new-york-reviewing-over-800-rape-cases-for-possible-mishandling-of-dna- ev idence.html.
198. See, e.g., David A. Sklansky, Hearsay's Last Hurrah, 2009 Sup. Ct. Rev. 1, 72-73 (indicating that in those DNA-exoneration cases where the underlying wrongful conviction was based on shoddy forensic work, cross-examination of forensic analysts is "inadequate" as a means of testing government forensic evidence).
199. See Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology 82 (2006).
200. See Laurens Walker & John Monahan, Scientific Authority: The Breast Implant Litigation and Beyond, 86 Va. L. Rev. 801, 821 (2000).
201. See generally Jennifer Mnookin, Expert Evidence, Partisanship, and Epistemic Competence, 73 Brook. L. Rev. 1009, 1010 (2008) (describing the longstanding view that "[e]xpert witnesses in court are often not deserving of our confidence").
202. See Frye v. United States, 293 F. 1013,1014 (D.C. Cir. 1923) (holding that a scientific principle "from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs").
203. Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52,80 (2009) (Alito, J, concurring).
204. See Erin Murphy, The Art in the Science of DNA: A Layperson's Guide to the Subjectivity Inherent in Forensic DNA Typing, 58 emory L.J. 489, 507 (2008) (explaining that if a suspect has even one allele missing from the evidence sample, the result is an exclusion).
205. See, e.g., Andrea Roth, Safety in Numbers? Deciding When DNA Alone Is Enough to Convict, 85 N.Y.U. L. Rev. 1130, 1136 (2010). The result is a reported "random match probability" (RMP), or the probability that a random person from the population will match the given profile.
206. The RMP is different from the "source probability," the chance that the defendant is the source of the evidence profile.
207. See, e.g., United States v. Martin Linen Supply Co, 430 U.S. 564, 572-73 (1977). This has not always been the case: a federal judge directed a verdict of guilt in Susan B. Anthony's trial for unauthorized voting in New York, before women were granted the right to vote.
208. See United States v. Anthony, 24 F. Cas. 829, 833 (C.C.N.D.N.Y. 1873) (No. 14,459) ("Every fact in the case was undisputed. There was no inference to be drawn or point made on the facts, that could, by possibility, alter the result. It was, therefore, not only the right, but it seems to me, upon the authorities, the plain duty of the judge to direct a verdict of guilty."). A directed verdict would also interfere with the jury's nullification power, to which the defendant is not legally entitled, but which has been recognized as part of the jury's historic and legitimate role as a check on state power.
209. A rich "trial-by-mathematics" literature exists critiquing prosecutions based solely on statistical evidence. I have argued in the DNA context that astronomically high source probabilities, as are common in "pure cold hit" DNA cases, are not necessarily viewed by the jury as probabilistic and could therefore inspire moral certainty.
210. See, e.g., Ala. Code § 26-17-505(a)(l) (2009) (creating rebuttable presumption with test result indicating 99% probability of paternity) Ind. Code § 31-14-7-1(3) (2004) (setting presumption of paternity at 99% probability) La. Rev. Stat. Ann. § 40:34(E)(5) (2012) (setting conclusive presumption at 99.9% probability for purposes of child support)
211. Mich. Comp. Laws § 712.11(3) (2007) (setting presumption of paternity at 99% probability)
212. Pa. Cons. Stat. Ann. § 4343(c)(2) (2010) (setting rebuttable presumption at 99% probability)
213. Tenn. Code Ann. § 24-7-112(b)(2)(C) (2000) (setting rebuttable presumption at 99% probability)
214. Utah Code Ann. §§ 78B-15-505(l)(a), (2) (2012) (creating presumption with test results indicating 99% probability of paternity, rebuttable only by contradictory genetic test)
215. Wyo. Stat. Ann. §14-2-705(a)(i) (2011) (setting rebuttable presumption at 99% probability).
216. Theoretical defenses, such as that the complainant stole the defendant's sperm and impregnated herself without his knowledge, would be possible but are unlikely to be persuasive.
217. See, e.g., United States v. Ruggiero, 726 F.2d 913, 927 (2d Cir. 1984) (Newman, J, concurring in part and dissenting in part) (indicating that in the criminal context special interrogatories for jurors are generally disfavored and used only in limited circumstances).
218. See, e.g., Julie A. Seaman, Black Boxes, 58 Emory L.J. 427, 433-34 (2008) (suggesting that admission of inculpatory fMRI results, if highly reliable, would render acts of jury nullification more obvious and therefore probably less frequent). Then again, if the evidence of factual guilt is so obviously definitive and dispositive, the jury may well feel exposed with or without an instruction.
219. See, e.g., Sparf v. United States, 156 U.S. 51, 174, 176-77 (1895) ("The jury ha[s] the undoubted and uncontrollable power to determine for themselves the law as well as the fact by a general verdict of acquittal .... [W]e are of opinion that the learned judge erred in instructing the jury that they were bound to accept the law as stated in his instructions ...")
220. Michael S. Pardo & Ronald J. Allen, Juridical Proof and the Best Explanation, 27 L. & Phil. 223,225 (2008).
221. Edward Cheng, Reconceptualizing the Burden of Proof, 122 Yale L.J. 1254, 1259 (2013) ("[T]he preponderance standard is better characterized as a probability ratio, in which the probability of the plaintiffs story of the case is compared with the defendant's story of the case.").
222. Daniel Shaviro, Commentary, Statistical-Probability Evidence and the Appearance of Justice, 103 Harv. L. Rev. 530,540 (1989).
223. Laurence H. Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va. L. Rev. 371, 386 (1970).
224. See, e.g., Jonathan J. Koehler & Daniel N. Shaviro, Veridical Verdicts: Increasing Verdict Accuracy Through the Use of Overtly Probabilistic Evidence and Methods, 75 Cornell L. Rev. 247, 250 (1990) (suggesting that a factfinder motivated solely by verdict accuracy would embrace overtly probabilistic methodology).
225. See, e.g., Hudson v. Louisiana, 450 U.S. 40, 44 & n.5 (1981) (exemplifying the distinction between discretionary grant of new trial and grant of judgment of acquittal, as an acquittal is based on insufficiency as a matter of law but the former allows judge to sit as "13th juror").
226. Samuel Krislov & Paul Kramer, 20/20 Vision: The Future of the California Civil Courts, 66 S. Cal. L. Rev. 1915,1949 (1993).
227. Scott v. Harris, 550 U.S. 372, 389 (2007) (Stevens, J, dissenting).
228. See Dan M. Kahan et al. Whose Eyes Are You Going to Believe?
229. Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837, 879-80 (2009) (finding that mock jurors came to different conclusions based on individual cultural styles, including ideology, race, socioeconomic status, and education, among other factors).
230. See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 103-05 (1998)
231. Laura I. Appleman, The Lost Meaning of the Jury Trial Right, 84 Ind. L.J. 397, 398 (2009) (describing the right to a jury trial as "strictly a collective right")
232. see also U.S. Const, art. Ill, § 2 ("The trial of all Crimes, except in Cases of Impeachment, shall be by Jury ... [.]")
233. cf. Singer v. United States, 380 U.S. 24, 36-37 (1965) (holding Federal Rule of Criminal Procedure 23(a), requiring government and court approval before a defendant can waive a jury trial in favor of trial by judge, is constitutional).
234. At least one scholar has suggested some type of heightened sufficiency review for cases involving the types of inculpatory evidence - including, notably, confessions - that the jury wrongly credited in the DNA exoneration cases.
235. But see Iowa R. Court 2.21(4) ("The confession of the defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the defendant committed the offense.")
236. People v. Rivera, 962 N.E.2d 53, 67 (111. App. Ct. 2011) ("Because defendant's confession was the only remaining evidence connecting him to the victim's sexual assault and murder, the State was required to present evidence aliunde the confession to prove offense.").
237. Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. Davis L. Rev. 1487, 1487 (2008) ("[This article] proposes the implementation of a rule requiring corroborating evidence in cases involving eyewitness identification.")
238. David Crump, Eyewitness Corroboration Requirements as Protections Against Wrongful Convictions: The Hidden Questions, 1 Ohio St. J. Crim. L. 361, 361-63 (2009) (examining costs to Guerra Thompson's proposed eyewitness corroboration rule).