Wrongful Conviction, Forensic Science and DNA Evidence

Tuesday, 2 October 2018, marks the fifth year that Wrongful Conviction Day will be officially acknowledged internationally. It is a day to draw attention and awareness to the problem of the wrongful conviction – a problem that impacts well beyond the individual serving time for a crime he or she did not do, to family, friends and society more broadly. The emotional costs for innocent but convicted people and their families, is incalculable. For society, there is a public safety issue with the real perpetrator free and able to commit further crimes.

The first Innocence Project started in the United States in 1992. Since then the Innocence Network has grown to become an affiliation of 69 member organisations dedicated to assisting wrongly convicted people in several countries across the world – including projects in Argentina, Australia, Canada, Ireland, Israel, Italy, the Netherlands, New Zealand, Taiwan and the United Kingdom.[1]

Systemic causes of wrongful conviction as highlighted through exonerations that have occurred in the United States exonerations include perjury or false accusations, mistaken eyewitness identification, false or misleading forensic evidence, false confessions, inadequate defence, incentivized informants and official misconduct. One of the leading causes of wrongful convictions as highlighted in the United States is that of the misapplication of forensic science. Contributing to 45% of the wrongful convictions that have been overturned by DNA in that country,[2] it is also estimated to have contributed to 31% of wrongful convictions in Australia.[3]

While DNA evidence has been a unique tool of justice in uncovering so many wrongful convictions, it can also result in wrongful convictions. Farah Jama’s conviction rested solely on DNA evidence that was wrong. As stated by The Honourable Justice Vincent who undertook a review of the case:

It is almost incredible that, in consequence of a minute particle, so small that was invisible to the naked eye, being released into the environment and then by some mechanisms settling on a swab, slide or trolley surface, a chain of events could be started that culminated in the conviction of an individual for a crime that had never been committed by him or anyone else, created immense personal distress for many people and exposed a number of deficiencies on our criminal justice system. But that, I believe is what happened.[4]

In a paper currently being written by Lynne Weathered and Kirsty Wright,[5] potential hazards with the use of DNA evidence in the courtroom are explored. This includes (mis)understanding of DNA statistics; possible problems associated with the use of ‘partial’ match profiles; complexities associated with the accuracy of evidence where innocent primary, secondary or tertiary transfer may have occurred; concerns in regard to underlying assumptions and interpretation of transfer and activity information to determine how and when the DNA was deposited; and possible issues with the new DNA software calculations now being presented in court.

Weathered and Wright have particular concern in regard to the newly introduced scientific method for the ‘ranking’ of scenarios as to how and when the DNA was deposited on an item. They argue that this ‘ranking’ has found its way into the courtroom riding on the back of the acceptance of DNA evidence in the courtroom in general, but without the validation studies required for the introduction for its use in this very different way.

The complexities to understanding scientific evidence and in particular, DNA evidence is creating a challenging situation for the criminal justice system. Weathered and Wright believe greater collaboration between scientists and lawyers in Australia is required to bridge the chasm that currently exists between law and science, if this challenge is to be met and justice served.

No one is served by a wrongful conviction.

[1] The Innocence Network, https://innocencenetwork.org/ (18 September 2018).

[2] The Innocence Project, Misapplication of Forensic Science, https://www.innocenceproject.org/causes/misapplication-forensic-science/ (18 September 2018).

[3] Rachel Dioso-Villa, A Repository of Wrongful Convictions in Australia: First Steps Towards Estimating Prevalence and Causal Contributing Factors, Flinders Law Journal (2015) 17(2), 163 – 202 at 182.

[4] The Honourable FHR Vincent, Report: Inquiry into the circumstances that led to the conviction of Mr Farah Abdulkadir Jama (Victorian Government Printer, May 2010), 48.

[5] School of Environment and Science, Griffith University, 170 Kessels Road, Nathan, Queensland 4111, Australia.

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