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Non-Matches As Evidence of Innocence

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Non-Matches As Evidence of Innocence Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2012 The Evidence of Things Not Seen: Non-Matches as Evidence of Innocence James S. Liebman Columbia Law School, [email protected] Shawn Blackburn [email protected] David Mattern [email protected] Jonathan Waisnor [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation James S. Liebman, Shawn Blackburn, David Mattern & Jonathan Waisnor, The Evidence of Things Not Seen: Non-Matches as Evidence of Innocence, IOWA LAW REVIEW, VOL. 98, P. 577, 2012; COLUMBIA PUBLIC LAW RESEARCH PAPER NO. 13-333 (2012). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1776 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Columbia Law School Public Law & Legal Theory Working Paper Group Paper Number 13-333 The Evidence of Things Not Seen: Non-Matches as Evidence of Innocence James S. Liebman Columbia Law School and Shawn Blackburn J.D., Columbia Law School, 2011 David Mattern J.D. Candidate, Columbia Law School, 2013 Jonathan Waisnor J.D., Columbia Law School, 2012 February 20, 2013 Electronic copy available at: http://ssrn.com/abstract=2194117 A3_LIEBMAN.DOCX (DO NOT DELETE) 12/10/2012 4:17 PM The Evidence of Things Not Seen†: Non-Matches as Evidence of Innocence James S. Liebman, Shawn Blackburn, David Mattern & Jonathan Waisnor ABSTRACT: Exonerations famously reveal that eyewitness identifications, confessions, and other “direct” evidence can be false, though police and jurors greatly value them. Exonerations also reveal that “circumstantial” non-matches between culprit and defendant can be telling evidence of innocence (e.g., an aspect of an eyewitness’s description of the perpetrator that does not match the suspect she identifies in a lineup, or a loose button found at the crime scene that does not match the suspect’s clothes). Although non-matching clues often are easily explained away, making them seem uninteresting, they frequently turn out to match the real culprit when exonerations reveal that the wrong person was convicted. This Article uses “non-exclusionary non-matches” and what would seem to be their polar opposite, inculpatory DNA, to show that: (1) all evidence of identity derives its power from the aggregation of individually uninteresting matches or non-matches, but (2) our minds and criminal procedures conspire to hide this fact when they contemplate “direct” and some “circumstantial” evidence (e.g., fingerprints), making those forms of evidence seem stronger than they are, while, conversely, (3) our minds and procedures magnify the circumstantial character of non-exclusionary non-matches, making them seem weaker than they are. We propose ways to use circumstantial matches and non-matches more effectively to avoid miscarriages of justice. † See JAMES BALDWIN, THE EVIDENCE OF THINGS NOT SEEN (1985). Simon H. Rifkind Professor, Columbia Law School. Thanks to Alexandra Blaszczuk, Leslie Demers, Robert King, and Abshir Kore for superb research assistance. This Article is dedicated to David Baldus, who until his recent death was the Joseph B. Tye Professor of Law at The University of Iowa. As a pioneer in bringing the discipline of science and rigorous inquiry—and the courage to confront the facts as best we can discern them and as troubling as they may be—to the analysis of the operation of the criminal justice system, Professor Baldus was an inspiration for this Article and for all of our work. We are deeply saddened by his death. J.D., Columbia Law School, 2011. J.D. Candidate, Columbia Law School, 2013. J.D., Columbia Law School, 2012. 577 Electronic copy available at: http://ssrn.com/abstract=2194117 A3_LIEBMAN.DOCX (DO NOT DELETE) 12/10/2012 4:17 PM 578 IOWA LAW REVIEW [Vol. 98:577 I. INTRODUCTION: THE UNDERUSE OF NON-EXCLUSIONARY NON- MATCHES TO AVOID WRONGFUL CONVICTION ..................................... 580 II. THE AGGREGATE POWER OF NON-EXCLUSIONARY NON-MATCHES ON THE QUESTION OF IDENTITY ............................................................ 588 A. PEOPLE V. ADAMSON REVISED ......................................................... 588 B. R V. ADAMS REVISITED ..................................................................... 595 III. JUDICIAL RESISTANCE TO AGGREGATIVE ANALYSIS OF MATCHES AND NON-MATCHES ....................................................................................... 597 A. OBJECTIONS TO PROBABILISTIC PROOF GENERALLY: PEOPLE V. COLLINS ......................................................................................... 597 B. OBJECTIONS TO AGGREGATIVE ANALYSIS OF MATCHES AND NON- MATCHES ........................................................................................ 600 IV. STANDARD IDENTITY EVIDENCE AS AGGREGATIONS OF MATCHES AND NON-MATCHES ....................................................................................... 601 A. THE COMPATIBILITY OF AGGREGATIVE ANALYSIS AND CRIMINAL JUSTICE ............................................................................................ 601 1. Confessions, Eyewitness Identifications, and Fingerprints as Aggregative Evidence .................................. 601 2. The Courts’ Enthusiastic Embrace of Aggregative Analysis: Inculpatory DNA ..................................................... 605 B. THE ADVERSARIAL SYSTEM’S ABILITY TO DOMESTICATE AGGREGATIVE ANALYSIS ................................................................... 610 C. MODERN DATA MINING AND THE BROAD AVAILABILITY OF FREQUENCY INFORMATION ................................................................ 618 D. AGGREGATIVE USE OF NON-EXCLUSIONARY NON-MATCHES OUTSIDE OF COURT ........................................................................................ 623 V. COGNITIVE, STRUCTURAL, AND LEGAL IMPEDIMENTS TO USING NON-EXCLUSIONARY NON-MATCHES .................................................... 623 A. COGNITIVE RESISTANCE .................................................................... 624 1. Heuristic Economization ....................................................... 624 2. The Representativeness Bias ................................................. 624 3. The Simulation, Confirmation, and Certainty Biases .......... 629 a. The Simulation Bias ........................................................... 629 b. The Confirmation Bias ....................................................... 631 c. The Certainty Effect ............................................................ 633 4. The “Uniqueness Fallacy” ...................................................... 636 5. The “Irrelevance Fallacy” ....................................................... 642 B. STRUCTURAL DISADVANTAGES .......................................................... 650 1. Reasons To Doubt the Adversarial Antidote ........................ 650 Electronic copy available at: http://ssrn.com/abstract=2194117 A3_LIEBMAN.DOCX (DO NOT DELETE) 12/10/2012 4:17 PM 2013] THE EVIDENCE OF THINGS NOT SEEN 579 2. The Biasing Effect of the State’s Monopoly over the Initial Investigation ................................................................ 651 C. LEGAL OBSTACLES ........................................................................... 657 1. Rules Distinguishing “Direct” and “Circumstantial” Evidence .................................................................................. 657 2. Rules Regulating Police Investigations ................................. 659 3. Rules Regulating Discovery ................................................... 663 4. Rules Limiting Evidence of a Third Party’s Guilt ................ 667 5. Rules Limiting Statistical Evidence ....................................... 670 VI. SENSIBLE REGULATION OF NON-EXCLUSIONARY NON-MATCHES AS EVIDENCE OF IDENTITY .......................................................................... 673 A. NEW TOOLS TO IMPROVE LAY DECISION MAKERS’ APPRECIATION OF AGGREGATIVE ANALYSIS ................................................................... 674 B. MANAGEMENT-BASED REGULATION OF NON-EXCLUSIONARY NON- MATCHES AS EVIDENCE OF IDENTITY ................................................. 679 1. Management-Based Regulation ............................................ 679 2. Regulation of “Big” Evidence of Identity.............................. 681 3. Regulation of “Small” Non-Matches ..................................... 685 VII. CONCLUSION ......................................................................................... 687 A3_LIEBMAN.DOCX (DO NOT DELETE) 12/10/2012 4:17 PM 580 IOWA LAW REVIEW [Vol. 98:577 I. INTRODUCTION: THE UNDERUSE OF NON-EXCLUSIONARY NON-MATCHES TO AVOID WRONGFUL CONVICTION In 1998 in State v. Hayes, a New Orleans jury convicted juveniles Ryan Matthews and Travis Hayes of the robbery–murder of a New Orleans store owner.1 There was considerable evidence against the two. Witnesses reported that a black male shot the robbery victim, then leapt into a getaway car through an open passenger-side window and escaped.2 Police stopped Hayes and Matthews in a vehicle resembling witnesses’ description of the getaway car.3 Hayes confessed to the police that he drove the getaway
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