By: Sydney Perkins
Post-conviction proceedings reveal a striking asymmetry. While the introduction of scientifically invalid forensic evidence can easily secure a conviction, newly discovered evidence undermining that conviction rarely guarantees relief. Such evidence, rather than securing immediate exoneration, frequently becomes the basis for coercive prosecutorial bargaining.
Consider the following scenario: after spending nearly twenty years in prison for a crime you did not commit, newly discovered DNA reveals that the sole evidence against you was inaccurate. In principle, newly discovered evidence should function as a decisive basis for relief. However, in practice, prosecutorial discretion often dictates otherwise. The systemic reality is that even when the theory underlying the conviction is baseless, there is no guarantee that the conviction will be overturned. Consequently, it is typically in a defendant’s best interest to plead guilty to a lesser offense rather than proceed with an evidentiary hearing—despite being completely innocent. This coercive tactic, known as a “dark plea,” illustrates the extent to which the system prioritizes finality over accuracy. Dark pleas are especially common in instances where the prosecutor knows they have a failing argument, as is the case where the forensic evidence underlying the conviction is no longer reputable.
Background
DNA evidence is highly persuasive when presented to jurors —and rightfully so. It is grounded in science, regarded as objective, and therefore construed as reliable. Jurors must rely upon expert testimony to interpret DNA evidence, and the skewed way in which this evidence may be framed can have a substantial impact on case outcomes. [1] DNA evidence tends to be disproportionately compelling to jurors, and it can even serve as a predictor of guilty verdicts.[2] Several factors can explain this phenomenon, including jurors attaching inappropriate weight to DNA evidence, “considering it credible only because it is science;”[3] failure to understand and comprehend the DNA match probability provided;[4] and the “prosecutor’s fallacy,”[5] wherein the strength of other evidence is ignored considering the DNA match statistic.[6]
Fallibility of DNA Evidence
Flawed DNA evidence is not rare.[7] Issues with forensic evidence can be as minimal as a harmless mistake, or as severe as invalid techniques and fraud.[8] In a study analyzing 732 cases and 1,391 forensic examinations from the National Registry of Exonerations, 635/732 cases contained errors relating to forensic evidence.[9] Notably, 64% of DNA cases contained at least one error.[10] Despite these disconcerting statistics, “[p]rosecutors continue to defend the integrity of convictions even when new evidence is discovered that, if true, would completely undermine the theory of guilt that was put forth in the original case.”[11]
Dark Pleas
Michael Donnelly, an Ohio Supreme Court Justice, outlines two major problems with the Criminal Justice System: (1) a lack of transparency at the front end; and (2) a back end that is so unduly egregious that it “makes the flawed front end . . . look like a beacon of transparency and efficiency by comparison.”[12] During this post-conviction phase, with only few rare exceptions, a defendant loses any protections they had at the front end under the Sixth Amendment. [13] Here, even in instances of newly discovered evidence, defendants are not entitled to an evidentiary hearing[14] nor to a presumption of innocence.[15] Infrequently, where an evidentiary hearing is granted, the defendant has the burden to prove their allegations through evidence supporting the merits of their case[16]. If the defendant meets this burden of proof, their conviction may be reversed. However, even when all available evidence conclusively supports a defendant’s innocence, many still choose to accept a plea deal. Prior to the evidentiary hearing, prosecutors capitalize on the power imbalance and “present prisoners with the government’s ultimate trump card”—the Dark Plea.[17]
Coercive tactics used to induce an innocent defendant to plead guilty for a lesser offense seem more appealing than opening pandora’s box of wrongful convictions. When prosecutors utilize these coercive tactics, a greater emphasis is placed on preserving the integrity of the conviction than on doing what is just. Further, prosecutors exercise unchecked discretion with all the power in their hands. Prosecutors can get “law enforcement officers to investigate, magistrates to issue warrants, grand juries to indict, defendants to plead guilty (or, if necessary, trial juries to convict), and judges to imprison,”[18] but the real power lies in their “ability to cause outcomes through influence.”[19] When a defendant must choose between (a) proceeding with a potentially lengthy hearing and risking an unfavorable outcome, or (b) securing an immediate release at the cost of admitting guilt, the Dark Plea seems like the best option.
Conclusion
Simply put, “[a] criminal justice system that routinely forces innocent people to plead guilty is unfair and unjust, and, ultimately, violates the principles intended by Sixth Amendment.”[20] Although plea deals are essential for the efficient functioning of our Criminal Justice System, a system that coerces innocent individuals to plead guilty is untenable. Exemplifying the notion that the line between efficiency and fairness has been irreparably blurred is the fact that over 10% of 349 people proven innocent by DNA testing initially pled guilty to crimes they did not commit.[21]
Considering the dire and lasting consequences of a wrongful conviction, forensic science should require clear standards and follow-up analyses,[22] especially when convictions are based on DNA testing methods that are no longer in use. Flawed evidence is not just a tool for conviction—it is a trap to induce coercive plea bargains. If pleas are to remain an essential part of the criminal process, they must not rest on the coercion of the innocent. Requiring retesting of samples analyzed through scientifically invalid methods, coupled with meaningful post-conviction review, is essential to restoring the balance between efficiency and fairness required by the Sixth Amendment.
[1] Robyn Lincoln et al., The Persuasive Powers of DNA: An Experimental Study in Perceptions of Expert Evidence, 3 GSTF Int’l Journal of Law and Social Sciences 20, 20 (2014).
[2] Id. at 25.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] See generally Nat’l Inst. of Justice, The Impact of False or Misleading Forensic Evidence on Wrongful Convictions, (Nov. 28, 2023), https://nij.ojp.gov/topics/articles/impact-false-or-misleading-forensic-evidence-wrongful-convictions#1-0 [https://perma.cc/8RGY-D3FR].
[8] Id.
[9] Id.
[10] Id.
[11] Michael P. Donnelly, The Dark Plea: One of the Most Coercive Abuses of Power Permitted in the Criminal Justice System, 72 Clev. St. L. Rev. Et Cetera 125, 129 (2024).
[12] Id. at 128.
[13] Id. at 130.
[14] Id. at 131.
[15] Id. at 127.
[16] Fla. R. Crim. P. 3.850
[17] Donnelly, supra note xiat 131.
[18] Jordan A. Sklansky, The Nature and Function of Prosecutorial Power, 106 J. Crim. L. & Criminology 473, 483 (2016) http://scholarlycommons.law.northwestern.edu/jclc/vol106/iss3/2.
[19] Id.
[20] Innocence Staff, America’s Guilty Plea Problem Under Scrutiny, Innocence Project, (Jan. 23, 2017), https://innocenceproject.org/news/americas-guilty-plea-problem-scrutiny/ [https://perma.cc/V84X-HYV5].
[21] Id.
[22] The Impact of False or Misleading Forensic Evidence on Wrongful Convictions, Nat’l Inst. Of Just., (Nov. 28, 2023) https://nij.ojp.gov/topics/articles/impact-false-or-misleading-forensic-evidence-wrongful-convictions [https://perma.cc/K6DM-J4Y4].
