PostConviction Use of DNA Evidence in Federal Court: Individual Cases and Beyond

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Post-Conviction Use of DNA Evidence in Federal
Court Individual Cases and Beyond

• David M. Siegel
• New England School of Law
• July 26, 2002
• Federal Bar Association

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Post-Conviction Use of DNA Evidence in Federal
Court Individual Cases and Beyond

• Use in Individual Cases
• Direct Challenges Motions for New Trial
• Collateral Challenges Petitions for Writ of
  Habeas Corpus
• Systemic Use
• DNA Exonerations Challenge Overall Systemic
  Reliability
• DNA Exonerations Highlight Shortcomings of
  Specific Forensic or Investigative Techniques

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Post-Conviction DNA Evidence in Individual Cases
Factual Legal Innocence

• Potential Evidence of Factual Innocence
• Identification Cases (I didnt do it)
• Challenges to Underlying Offenses or Predicates
  for Sentence Enhancement (I didnt do that)
• Potential Evidence of Legal Innocence
• Reduces Quantum of Proof (Now they cant prove I
  did it or did that)

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Principal Post-Conviction DNA Issues

• Is there a right to test potentially
  exculpatory evidence? Not clearly established.
• What is the required potential significance of
  the evidence to be tested? Five categories of
  cases.
• Can the evidence be authenticated? Fact issue.
• Is the testing reliable? Daubert v. Merrill Dow.
  

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Individual Cases (1) Direct Challenges

• Motion for New Trial based on Newly Discovered
  Evidence (Rule 33, Fed R.Crim.Pro.)
• Typically requires
• evidence newly discovered (i.e., since trial)
• diligence on part of the movant
• evidence not merely cumulative or impeaching
• evidence material to the issues involved and
• evidence would probably produce an acquittal.

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Individual Cases (2) Collateral Challenges
Habeas Corpus Theories

• Due Process Brady material Brady applies in
  post- conviction. Imbler v. Pachtman, 424 U.S.
  409 (1976).
• But no due process violation for failure to
  disclose material not available at trial. Harvey
  v. Horan, 278 F.3d 370 (4th Cir. 2002).
• 8th Amendment Incarceration of innocent person
  cruel unusual.
• But actual innocence only gateway for
  procedurally barred habeas claims. Hererra v.
  Collins, 506 U.S. 390 (1993).
• 6th Amendment Failure to obtain potentially
  exculpatory evidence ineffective assistance.
• But no ineffectiveness if testing not available
  at the time. Strickland v. Washington, 466 U.S.
  668 (1984).

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Individual Cases (3) Collateral Challenges -
Civil Rights Action Theory (42 U.S.C. 1983)

• Denial of Access to Potentially Exculpatory
  Evidence violates 5th, 6th, 8th and 14th
  Amendments.
• Problems (according to Harvey v. Horan, 278 F.3d
  370, (4th Cir. 2002), 285 F.3d 298 (den. rehrg
  and rehrg en banc)).
• No civil actions implying invalidity of otherwise
  valid criminal conviction under 1983. Heck v.
  Humphrey, 512 U.S. 477 (1994).
• 1983 action implying innocence would be
  tantamount to habeas action, thereby
  circumventing habeas procedural requirements for
  exhaustion in 18 U.S.C. 2254(b).
• If 1983 action is actually a habeas action, it
  may be procedurally barred as a successive
  petition (unless permission granted by court),
  under AEDPA.

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Effect of Innocence Protection Act of 2001

• Right to test in federal cases if claim of
  innocence for
• any federal conviction, including conviction used
  as sentence enhancer as career criminal / armed
  career criminal
• Testing mandatory if
• evidence exists and is testable
• evidence never previously tested, or not with
  this test
• testing uses a scientifically valid technique
  and
• testing has scientific potential to produce new,
  noncumulative evidence material to claim
  applicant did not commit the offense.
• No testing if govt proves by preponderance
  application made to unreasonably delay sentence
• States must adopt similar laws or lose federal
  DNA funds
• Status Sen. Jud. Cmte. Approved 7/18/02 240
  House Sponsors

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Categories of Cases (Natl Commn on the Future
of DNA Evidence)

• Category 1. Biological evidence collected,
  extant, and exclusionary results will exonerate
  should test by agmt.
• Category 2. Biological evidence collected,
  extant, and exclusionary results would support
  claim of innocence parties may not agree on
  testing.
• Category 3. Biological evidence was collected,
  extant, but favorable results will be
  inconclusive case may change category if
  technology improves.
• Category 4. Biological evidence never
  collected or cannot be found, destroyed, or so
  preserved it cannot be tested postconviction
  relief not possible.
• Category 5. Request for DNA testing is
  frivolous.

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Systemic Use of DNA in Post-Conviction Actions
Undermines Overall Systemic Reliability

• Execution Moratoria (Illinois 2000, Maryland
  2002)
• Ill. Governors Commission on Capital Punishment
• 85 recommendations overhauling capital system
  (April 2002)
• Include creating independent DNA lab, defense
  access to DNA database, allowing non-exonerative
  testing by defendants
• Invalidation of Federal Death Penalty. U.S. v.
  Quinones (July 1, 2002) (risk of error violates
  substantive due process).
• U.S. Sup.Ct. recognition of wrongful capital
  convictions
• We cannot ignore the fact that in recent years
  a disturbing number of inmates on death row have
  been exonerated. Atkins v. Virginia, 122 S.Ct.
  2242, 2252, n. 25 (2002) (Stevens, J.).

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Systemic Use of DNA in Post-Conviction Actions
Highlights Shortcomings of Forensic Techniques

• Unreliability of Eyewitness IDs
• D.O.J.-Suggested Stnds.for Pre-trial
  Identifications (10/31/00)
• Ill. Govs. Commission recommendations
• Conduct double blind lineups
• Tell witnesses perpetrator may not be present
• Conduct sequential lineups
• Videotape lineups
• Junk Science
• Unreliability of Confessions
• Videotape interrogations at police station
• Repeat on tape unrecorded statements
• Investigative Techniques in General
• Record statements of significant witnesses
• Pursue all reasonable lines of inquiry even
  exculpatory ones

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Resources