Courts have started to pay significant attention to prosecutors' misrepresentation of DNA evidence. This is an important development because DNA evidence has become, "perhaps the most powerful, and, thus the most troubling forensic technology to ever be used in a court of law." Researchers have concluded that "when DNA evidence is introduced against an accused at trial, the prosecutor's case can take on an aura of invincibility."
The first case to really pay close attention to the way prosecutors' misrepresent DNA evidence was People v. Wright, a 2015 Court of Appeals case. In that case, the Court of Appeals reversed a murder conviction because of the prosecutor's misrepresentation of the DNA evidence. The DNA expert testified that it could not be determined that the DNA at the crime scene belonged to the defendant nor that it didn't. Despite the expert's inconclusive testimony, the prosecutor told the jury that the defendant "left his DNA all over the crime." Remarkably, the defense lawyer did not object. But, because the expert explicitly testified that it could not be determined whether the DNA was even the defendant's, the Court of Appeals found the prosecutor's argument egregious.
A few weeks ago, the Third Department in Albany reversed another murder conviction based upon the prosecutor's misrepresentation of the DNA evidence. In People v. Ramsaran, the DNA expert testified that he found DNA from two different people from the blood on the defendant's sweatshirt. Most of the DNA came from the defendant himself, but the expert could not say whether the other DNA came from the victim. Yet, the prosecutor argued to the jury that the DNA on the sweatshirt was the victim's, that the expert report, "showed that the victim's DNA was on that area where the bloody spot is" and that the expert concluded that, "the victim's DNA is on that sweatshirt." Again, the defense attorney did not object. Like in Wright, the court was forced to reverse the conviction because of the prosecutor's misrepresentations.
I am currently working on an appeal with the same issue. In my case, the DNA expert testified that the DNA found at the crime scene was totally useless and that she could not even determine whether the DNA came from a man or a woman. Yet, the prosecutor told the jury that the DNA was "consistent" with the defendant having committed the crime. In reality, the DNA evidence, which the expert called "Junk DNA", was as consistent with the defendant committing the crime as with the other 6.8 billion people on earth. Yet again, the defense attorney sat silent and did not object. This case will likely be argued this winter.
These cases reveal that courts recognize the importance of DNA evidence and are playing close attention to the ways that prosecutors are using DNA evidence. These cases also make crystal clear how essential it is to have a defense attorney who has experience and knowledge in cases involving DNA evidence.