Title: PostConviction Use of DNA Evidence in Federal Court: Individual Cases and Beyond
1Post-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
2Post-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
3Post-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)
4Principal 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.
5Individual 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.
6Individual 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).
7Individual 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.
8Effect 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
9Categories 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.
10Systemic 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.).
11Systemic 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
12Resources