1. 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

2. Post-Conviction Use of DNA Evidence in Federal Court: Individual Cases and Beyond Use in Individual Cases Use in Individual Cases –Direct Challenges – Motions for New Trial –Collateral Challenges – Petitions for Writ of Habeas Corpus Systemic Use Systemic Use –DNA Exonerations Challenge Overall Systemic Reliability –DNA Exonerations Highlight Shortcomings of Specific Forensic or Investigative Techniques

3. Post-Conviction DNA Evidence in Individual Cases: Factual & Legal Innocence Potential Evidence of Factual Innocence Potential Evidence of Factual Innocence –Identification Cases (“I didn’t do it”) –Challenges to Underlying Offenses or Predicates for Sentence Enhancement (“I didn’t do that”) Potential Evidence of Legal Innocence Potential Evidence of Legal Innocence –Reduces Quantum of Proof (“Now they can’t prove I did it or did that”)

4. Principal Post-Conviction DNA Issues Is there a “right” to test potentially exculpatory evidence? Not clearly established. 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. What is the required potential “significance” of the evidence to be tested? Five “categories” of cases. Can the evidence be authenticated? Fact issue. Can the evidence be authenticated? Fact issue. Is the testing reliable? Daubert v. Merrill Dow. Is the testing reliable? Daubert v. Merrill Dow.

5. Individual Cases (1): Direct Challenges Motion for New Trial based on Newly Discovered Evidence (Rule 33, Fed R.Crim.Pro.) Motion for New Trial based on Newly Discovered Evidence (Rule 33, Fed R.Crim.Pro.) Typically requires: 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.

6. 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). 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 (4 th Cir. 2002). 8 th Amendment: Incarceration of innocent person cruel & unusual. 8 th 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). 6 th Amendment: Failure to obtain potentially exculpatory evidence ineffective assistance. 6 th 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).

7. Individual Cases (3) : Collateral Challenges - Civil Rights Action Theory (42 U.S.C. §1983) Denial of Access to Potentially Exculpatory Evidence violates 5 th, 6 th, 8 th and 14 th Amendments. Denial of Access to Potentially Exculpatory Evidence violates 5 th, 6 th, 8 th and 14 th Amendments. Problems (according to Harvey v. Horan, 278 F.3d 370, (4 th Cir. 2002), 285 F.3d 298 (den. rehr’g and rehr’g en banc)). Problems (according to Harvey v. Horan, 278 F.3d 370, (4 th Cir. 2002), 285 F.3d 298 (den. rehr’g and rehr’g 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.

8. Effect of Innocence Protection Act of 2001 Right to test in federal cases if claim of innocence for 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 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 gov’t proves by preponderance application made to unreasonably delay sentence No testing if gov’t proves by preponderance application made to unreasonably delay sentence States must adopt similar laws or lose federal DNA funds States must adopt similar laws or lose federal DNA funds Status: Sen. Jud. Cmte. Approved 7/18/02; 240 House Sponsors Status: Sen. Jud. Cmte. Approved 7/18/02; 240 House Sponsors

9. Categories of Cases (Nat’l Comm’n on the Future of DNA Evidence) “Category 1.” Biological evidence collected, extant, and exclusionary results will exonerate; should test by agm’t. “Category 1.” Biological evidence collected, extant, and exclusionary results will exonerate; should test by agm’t. “Category 2.” Biological evidence collected, extant, and exclusionary results would support claim of innocence; parties may not agree on testing. “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 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 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. “Category 5.” Request for DNA testing is frivolous.

10. Systemic Use of DNA in Post-Conviction Actions: Undermines Overall Systemic Reliability Execution Moratoria (Illinois – 2000, Maryland – 2002) Execution Moratoria (Illinois – 2000, Maryland – 2002) Ill. Governor’s Commission on Capital Punishment Ill. Governor’s 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). 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 U.S. Sup.Ct. recognition of wrongful capital convictions –“[W]e 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.).

11. Systemic Use of DNA in Post-Conviction Actions: Highlights Shortcomings of Forensic Techniques Unreliability of Eyewitness ID’s Unreliability of Eyewitness ID’s –D.O.J.-Suggested Stnds.for Pre-trial Identifications (10/31/00) –Ill. Gov’s. Commission recommendations: »Conduct double blind lineups »Tell witnesses perpetrator may not be present »Conduct sequential lineups »Videotape lineups Junk Science Junk Science Unreliability of Confessions Unreliability of Confessions –Videotape interrogations at police station –Repeat on tape unrecorded statements Investigative Techniques in General Investigative Techniques in General –Record statements of significant witnesses –Pursue all reasonable lines of inquiry – even exculpatory ones

12. Resources