CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, August 2, 2013

Garrett on Criminal Justice and the Court's Past Term

Brandon Garrett has this post at the Harvard University Press Blog:

With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex marriage. Understandably less noticed have been three decisions with real implications for criminal justice. In cases concerning the procedural barriers to relief when evidence of innocence arises after conviction, the expanded collection and storage of DNA, and the conduct of police interrogations, the Court issued rulings that bear on the accuracy of our criminal justice system.

First, the Court continues to recognize that innocence should be an important consideration for federal judges reviewing prisoners’ habeas petitions. InMcQuiggan v. Perkins, the Court recognized for the first time that evidence of a prisoner’s innocence can provide an exception to the restrictive one-year statute of limitations imposed in 1996 by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). However, the Court somewhat gratuitously emphasized that this innocence exception would be “severely confined” and that the class of prisoners able to show that a jury presented with new evidence would be likely not to convict may be quite small.

Moreover, the Court still has not recognized an outright constitutional claim of innocence. Innocence is merely a “gateway” to excuse complex procedural barriers, but innocence is not a stand-alone ground for relief in federal courts. More than two-decades into the DNA era, judges are now far more aware than in the past that prisoners can prove their outright innocence of serious crimes. But as I describe in Convicting the Innocent, judges have only slowly and reluctantly loosened their grip on technical rules that make it extremely difficult for even innocent convicts to secure their freedom.

Second, although DNA testing continues to reshape the criminal justice system, the Supreme Court’s decision this term in Maryland v. King may encourage some of the worst tendencies in the law enforcement use of DNA. The Court endorsed police taking DNA from people at the time of arrest for purposes of “identification,” but also to permanently enter that DNA in the national databank to search against any number of past and future unsolved crimes. Given my interest in using DNA to potentially free the innocent, one might expect that I would welcome any and all expansion of DNA databanks. However, I co-authored an amicus brief with Erin Murphy taking the other side and offering adetailed explanation of our thinking. We argued that the federal government and states should absolutely invest in collecting DNA from serious criminals, and in using DNA to potentially free the innocent. But taking DNA from vast numbers of mere arrestees, who have not been convicted of any crime, is counterproductive. It is a serious burden on the privacy of vast numbers of people, including innocent people who are cleared after arrest. By the same token, taking DNA from arrestees has not been shown to improve crime fighting; in fact, it can dilute the power of DNA databases.

Nor does taking DNA from arrestees clearly help the innocent. Indeed, the Supreme Court in its Osborne v. District Attorney’s Office ruling rejected a freestanding due process right for prisoners to obtain DNA tests that might prove their innocence. That stingy ruling was a striking contrast to the Court’s warm embrace of essentially unlimited law enforcement use of DNA from mere arrestees. No DNA exonerations have ever resulted from DNA collected from unconvicted arrestees, while many whose convictions were overturned have benefited from DNA matches with serious convicts. Far more needs to be done to improve inmate access to DNA testing and DNA database searches. That is whyBarry Scheck and Peter Neufeld were not at all happy to be cited by the Court inKing. Rather than take more DNA in marginal cases, we need to invest in improving the testing of forensic evidence from actual serious crime scenes, which directly solves more crimes. The Court’s decision instead opens the door to what Justice Antonin Scalia called in his dissent a “genetic panopticon.”

Finally, in Salinas v. Texas, the Supreme Court further weakened what little remained of the Fifth Amendment’s bulwark against coercive police interrogations of suspects. The right to remain silent is not what it used to be, and to be sure, the Court has been aggressively creating exceptions to its ruling in Miranda v. Arizona over several decades now. In Salinas, a majority of the Justices held that a person’s silence in response to a question asked by the police before any arrest or placement in custody can be used as evidence of guilt at trial. In some way that the plurality opinion by Justice Alito did not deign to explain, a suspect must explicitly invoke a Fifth Amendment right to remain silent, without having been informed of one’s right to remain silent. What suspect would know to do that? Even sophisticated targets of white-collar investigations, the subject of Too Big to Jail, my forthcoming project with HUP, will now need detailed legal advice before speaking to law enforcement, and they may be less willing to cooperate.

Not only is it not at all realistic that typical suspects will invoke their rights without being informed of them, but a special concern raised by the Salinas decision is that it might encourage the types of informal questioning that can cause false confessions and wrongful convictions. As I describe in Convicting the Innocentnot only can innocent people confess, but innocent people can appear to deliver seemingly reliable and detailed confessions. This can occur if confession statements are contaminated by facts fed to suspects, perhaps unwittingly, by detectives during interrogations. Videotaping entire interrogations can help to prevent such false confessions, but if police have incentives to informally question without any documentation, then tragic miscarriage of justice can result. Only Justice Breyer in dissent pointed out this problem, noting that if the suspect is not silent, but “answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.”

Each of these three decisions shows how important the Supreme Court’s rulings continue to be in our criminal procedure, but also how jurisdictions seeking to avoid wrongful convictions might best go their own way and ignore the Court’s enthusiastic but misplaced nudges. States can and do adopt far broader rules allowing convicts to claim their innocence, states have rejected over-broad DNA collection proposals, and states have more carefully regulated interrogations by requiring videotaping. Unfortunately, the Court is not leading in the nationwide efforts to improve our criminal justice system, but fortunately, far more is being done locally to prevent convicting the innocent.

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