Saturday, August 21, 2010
Jeremy Gans (University of Melbourne) has posted Ozymandias on Trial: The Problem of Fair DNA-Only Hearings on SSRN. Here is the abstract:
Two recent Australian cases have placed the commanding role of DNA evidence in contemporary criminal trials under close scrutiny. In one, the latest entry in the national catalogue of miscarriages of justice, an inquiry found: '[T]he DNA evidence was, like Ozymandias’ broken statue in the poem by Shelley, found isolated in a vast desert. And like the inscription on the statue’s pedestal, everything around it belied the truth of its assertion. The statue, of course, would be seen by any reasonably perceptive observer, and viewed in its surroundings, as a shattered monument to an arrogance that now mocked itself. By contrast, the DNA evidence appears to have been viewed as possessing an almost mystical infallibility that enabled its surroundings to be disregarded.' In the other, all too briefly engaging the attention of the nation’s top court, the defendant submitted: 'It is the basic contention of the applicant that the conviction was unsafe because the only evidence against him was DNA evidence. We submit that in principle he should not have been convicted on DNA evidence alone, but particularly in the facts of this case where there was additional evidence which was in part exculpatory he should not have been convicted.' In short, the cases raise the question: is a trial based solely on DNA evidence a fair one?
This paper uses the two Australian cases in order to explain why the question of the fairness of DNA-only hearings is not only important, but also subtle and difficult. It first describes the nature of each hearing and the response to problems that arose or were said to arise in them. In each case, it develops an alternative argument that a common flaw in such cases is the absence of evidence of the origins of the DNA match. This complex category of evidence, often vital but nearly always dangerous, signals a fraught future for DNA-focussed hearings.