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—e.g., a non-matching aspect of an eyewitness’s description or a loose button at a crime scene—can be telling. Although non-match clues seem uninteresting because they are easily explained away, they often turn out to match the real culprit when he or she is eventually caught. This article uses “non-exclusionary non-matches” and their seeming 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 it seem stronger than it is , and to magnify the fact as to non-exclusionary non-matches, making them seem weaker than they are. We propose ways to use matches and non-matches more effectively to avoid miscarriages.
Date of Authorship for this Version
Liebman, James S., "The Evidence of Things Not Seen: Non-Matches as Evidence of Innocence" (2012). Columbia Public Law & Legal Theory Working Papers. Paper 9201.