Non-DNA cases:
  What happens if there
   is no DNA to test?

“Most people who seek DNA testing cannot get it because the evidence was long since destroyed."

   —University of Virginia Law School Professor
      Brandon Garrett, in "Convicting the Innocent," 2011

How are people exonerated
without DNA testing?

Our Justice Brandeis Law Project (formerly the Justice Brandeis Innocence Project) was founded in 2005 to investigate cases in which there is no DNA to test. This means that to establish that an inmate was wrongfully convicted, these cases must be re-investigated from the ground up. We dig into the facts of the cases, examining reams of court documents and police records, reconstructing the crime scene and timeline and interviewing or re-interviewing witnesses. 

The Justice Brandeis Law Project is different from Innocence Projects. Our project depends on the tools of investigative reporting, and is one of only a handful of projects investigating wrongful convictions that are staffed by journalists; the vast majority are staffed by lawyers who usually formally represent inmates

Many experts say that DNA testing is not an option in the majority of cases in which people may claim to be innocent—evidence may have been lost, destroyed, or never collected or left in the first place.

That’s why journalism projects investigating suspected cases of wrongful conviction like the Justice Brandeis Law Project are necessary: In the absence of DNA, thorough, accurate investigative reporting may be the only way to bring some of these cases to the public eye—and to find the truth.  

If, in the course of our investigation, we uncover information that suggests the inmate is in fact guilty, we will no longer pursue the investigation. 

More from Garrett’s "Convicting the Innocent": 

“In our fragmented criminal justice system, exonerations hinge on cooperation of local police, prosecutors, and judges. Most police in the 1980s did not routinely save evidence after conviction. In Dallas, Texas, where biological evidence was preserved, we have a large set of nineteen DNA exonerations. In nearby Houston, Texas, the county clerk destroyed evidence whenever its storerooms got full, so there have been just six DNA exonerations, despite a major scandal that led to the shutdown of the Houston crime lab. Further, for most crimes, there is no useful evidence collected at a crime scene that can be tested using DNA. If DNA is the “truth machine,” it tells us only about a sliver of very serious convictions, most for rape, chiefly from the 1980s.

“…[We] will never know how large the iceberg is—but we have good reasons to worry that intolerable numbers of innocent people have been convicted. A federal inquiry conducted in the mid-1990s, when police first began to send their samples for DNA testing, found that 25% of “primary suspects” were cleared by DNA before any trial.

“The trial records in these cases give us every reason to believe that most of the police, prosecutors, forensic analysts, defense lawyers, judges, and jurors acted in good faith. Few likely realized they were targeting the innocent. They may have suffered from the everyday phenomenon of cognitive bias, meaning that they unconsciously discounted evidence of innocence because it was inconsistent with their prior view of the case, or they were motivated to think of themselves as people who pursued only the guilty. That makes these cases all the more troubling. If there is no reason to think that anyone acted differently in these cases as compared to others, then similar errors may have convicted countless other innocent people and led to the guilty going free.” 

Last page update: November 19, 2011

© 2011-2013 Schuster Institute for Investigative Journalism at Brandeis University, Waltham, MA. All rights reserved.