PrimeTime: Using DNA Evidence

Kenneth Waters would not have been exonerated last week after 18 years behind bars were it not for DNA testing.

This relatively new technology has resulted in the post-conviction exoneration of 85 people since 1992. Defense Attorney Barry Scheck was involved with Waters' release and is co-director of the Innocence Project at Cardozo Law School in New York, which assists inmates who are challenging their convictions based on DNA testing of evidence.

Q: What was your role in the Waters case? A: Betty Anne contacted us in 1996 or 1997 because we have a project that uses DNA evidence to prove that people are wrongfully convicted. It was an especially compelling case because of her passion and belief in his innocence. We worked with her to get Kenneth out of jail, but Betty Anne did it.

Q: Why did you start the Innocence Project? A: I started it with Peter Neufeld in 1992 because we had developed some expertise in DNA testing and we knew this technology had the potential to exonerate the wrongfully convicted as well as identify who really committed a crime.

Q: What kinds of laws regarding DNA profiles exist? A: Laws require samples to be taken from convicted offenders and put into a databank. But one of the problems is that not enough unsolved crime DNA profiles are being put into a databank. Law enforcement just isn't doing it. One of the things I did was ask [New York] Police Commissioner Howard Safir to do DNA testing on 25,000 rape kits from unsolved crimes. They were going to throw them away. There are hundreds of thousands of rape kits which contain evidence not being tested. It's happening all across the country.

Q: What kind of far-reaching impact can the use of DNA evidence have on the justice system? A: DNA exonerations are creating public pressure to institute serious reform. It's a growing civil rights movement in America. But DNA is not a panacea. The real value is what it will help us understand about the strengths and weaknesses of the criminal justice system. It will help us understand what leads to wrongful convictions as well as solutions that will minimize terrible miscarriages of justice.

Q: I understand that all 85 people who have been exonerated on DNA evidence are men. Why is that? A: Post-conviction DNA evidence in cases of rape or rape-homicide is comparatively easy to find. Another reason is that far more men than women are in prison for committing violent crimes.

Q: Tell me about your new book. A: The book is not about DNA. It's about why innocent people get convicted and what we can do to fix it. It's got stories not unlike Betty Anne and Kenneth's story. Whether it's because of a mistaken eyewitness, junk forensic science, lawyers asleep in the courtroom, police and prosecutorial misconduct … it's the worst imaginable nightmare for people from all walks of life to be wrongfully convicted. Since the book was published, there has been a new DNA exoneration every 18 days.

Q: Aside from using DNA evidence, what suggestions do you have for preventing innocent men and women from being convicted?

A: The first has to do with eyewitnesses. Instead of having all the different individuals line up next to each other, they should be shown one at a time in a sequential presentation. All these studies show that if you do that, it does not reduce the number of correct identifications but you dramatically reduce the number of false ones. To deal with the problem of false confessions, there's a simple solution that conservatives and liberals agree on: Videotape the interrogations. Then there's no dispute about what was said and you have a good record to see if there was unfair coercion. It's not a perfect solution, but it's a good one. Also, we need more money for lawyers defending the poor. It's that simple. We shortchange lawyers who represent middle-class and poor people charged with crime in this country. The easiest way to get the conviction of an innocent person is to have a lawyer who's asleep in the courtroom. And when you have bad lawyers, every other problem in the system is exacerbated.

Q: What is your goal?

A: My goal is to transform the criminal justice system in America to make it fair and just … to minimize the conviction of the innocent and maximize the apprehension of the guilty. And DNA testing gives us a learning moment to see what the other problems are in the system.