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The Evidence of Things Not Seen: Non-Matches as Evidence of Innocence

113 Pages Posted: 28 Dec 2012 Last revised: 21 Feb 2013

James S. Liebman

Columbia University - Law School

Shawn Blackburn

Columbia University - Law School

David Mattern

Columbia University - Law School

Jonathan Waisnor

Columbia University - Law School

Date Written: 2012

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.

Keywords: criminal law, identity, evidence, matches and non-matches, Bayesian inference, heuristic bias

JEL Classification: K4, K14

Suggested Citation

Liebman, James S. and Blackburn, Shawn and Mattern, David and Waisnor, Jonathan, The Evidence of Things Not Seen: Non-Matches as Evidence of Innocence (2012). Iowa Law Review, Vol. 98, No. 2, 2012; Columbia Public Law Research Paper No. 13-333. Available at SSRN: https://ssrn.com/abstract=2194117 or http://dx.doi.org/10.2139/ssrn.2194117

James Steven Liebman (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-3423 (Phone)
212-854-7946 (Fax)

Shawn Blackburn

Columbia University - Law School

435 West 116th Street
New York, NY 10025
United States

David Mattern

Columbia University - Law School

435 West 116th Street
New York, NY 10025
United States

Jonathan Waisnor

Columbia University - Law School

435 West 116th Street
New York, NY 10025
United States

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