News 12.09.10

Preserving Evidence and Overturning Injustice

Pennsylvania Innocence Project Legal Director Marissa Boyers Bluestine writes in today’s Philadelphia Inquirer that her state should create evidence preservation standards and improve open records laws to prevent wrongful conviction and overturn injustice.

Although State Police have used preserved evidence to make more than 250 arrests, Pennsylvania doesn’t have a requirement to keep evidence at all, Bluestine writes.  She also notes that while prosecutors are constitutionally bound to turn over all exculpatory evidence, under current law the state allows prosecutors to determine what is or isn’t released to a defendant.

Of the 261 exonerations involving DNA evidence nationwide, half involved a failure to provide exculpatory evidence to the defense at trial.

The potential for abuse is easy to see: Without any requirement that the prosecution hand over material, there’s no way to determine whether the government has met its constitutional obligations. And a prosecutor who neglects or decides not to provide an exculpatory piece of evidence need not fear detection, as it will never be disclosed.

After a defendant has been convicted in Pennsylvania, information is even more difficult to obtain. Under the law, a defendant may not engage in a fishing expedition for exculpatory evidence. But the defendant has no way of knowing what potentially exculpatory information exists.

None of the nation’s 261 DNA exonerations would have been possible had biological evidence not been available to test. There are currently 32 states that provide for automatic preservation of biological evidence in certain cases; 23 require it in cases of homicides and sex offenses for the duration of a defendant’s incarceration.

While there is no certain way to prevent all wrongful convictions, Pennsylvania can assure fewer of them with two steps: broadening the open-records law to allow disclosure of limited information related to investigations, and establishing standards for preserving physical evidence.


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