Post-Conviction Use of DNA Evidence in Federal Court:

Individual Cases and Beyond

David M. SiegelDavid M. Siegel

New England School of LawNew England School of Law

July 26, 2002July 26, 2002

Federal Bar AssociationFederal Bar Association

Post-Conviction Use of DNA Evidence in Federal Court:

Individual Cases and Beyond

Use in Individual CasesUse in Individual Cases– Direct Challenges – Motions for New Trial Direct Challenges – Motions for New Trial – Collateral Challenges – Petitions for Writ of Collateral Challenges – Petitions for Writ of

Habeas CorpusHabeas Corpus Systemic UseSystemic Use

– DNA Exonerations Challenge Overall Systemic DNA Exonerations Challenge Overall Systemic ReliabilityReliability

– DNA Exonerations Highlight Shortcomings of DNA Exonerations Highlight Shortcomings of Specific Forensic or Investigative TechniquesSpecific Forensic or Investigative Techniques

Post-Conviction DNA Evidence in Post-Conviction DNA Evidence in Individual Cases: Factual & Legal InnocenceIndividual Cases: Factual & Legal Innocence

Potential Evidence of Factual InnocencePotential Evidence of Factual Innocence– Identification Cases (“I didn’t do it”)Identification Cases (“I didn’t do it”)– Challenges to Underlying Offenses or Challenges to Underlying Offenses or

Predicates for Sentence Enhancement (“I Predicates for Sentence Enhancement (“I didn’t do didn’t do thatthat”)”)

Potential Evidence of Legal InnocencePotential Evidence of Legal Innocence– Reduces Quantum of Proof (“Now they can’t Reduces Quantum of Proof (“Now they can’t

prove I did it or did prove I did it or did thatthat”)”)

Principal Post-Conviction DNA IssuesPrincipal Post-Conviction DNA Issues Is there a “Is there a “rightright” to test potentially exculpatory ” to test potentially exculpatory

evidence? Not clearly established.evidence? Not clearly established. What is the required potential “What is the required potential “significancesignificance” of ” of

the evidence to be tested? Five “categories” of the evidence to be tested? Five “categories” of cases.cases.

Can the evidence be Can the evidence be authenticatedauthenticated? Fact issue.? Fact issue. Is the testing Is the testing reliablereliable? ? Daubert v. Merrill Dow.Daubert v. Merrill Dow.

Individual Cases (1): Direct ChallengesIndividual Cases (1): Direct Challenges

Motion for New Trial based on Newly Discovered Motion for New Trial based on Newly Discovered Evidence (Rule 33, Fed R.Crim.Pro.)Evidence (Rule 33, Fed R.Crim.Pro.)

Typically requires:Typically requires:– evidence newly discovered (i.e., since trial);evidence newly discovered (i.e., since trial);

– diligence on part of the movant; diligence on part of the movant;

– evidence not merely cumulative or impeaching;evidence not merely cumulative or impeaching;

– evidence material to the issues involved; andevidence material to the issues involved; and

– evidence would probably produce an acquittal.evidence would probably produce an acquittal.

Individual Cases (2): Collateral Challenges – Individual Cases (2): Collateral Challenges – Habeas CorpusHabeas Corpus Theories Theories

Due Process: Due Process: Brady Brady material; material; Brady Brady applies in post- applies in post- conviction. conviction. IImbler v. Pachtmanmbler v. Pachtman, 424 U.S. 409 (1976)., 424 U.S. 409 (1976).– But no due process violation for failure to disclose material not But no due process violation for failure to disclose material not

available at trial. available at trial. Harvey v. HoranHarvey v. Horan, 278 F.3d 370 (4, 278 F.3d 370 (4thth Cir. 2002). Cir. 2002). 88thth Amendment: Incarceration of innocent person cruel & Amendment: Incarceration of innocent person cruel &

unusual.unusual.– But “actual innocence” only gateway for procedurally barred But “actual innocence” only gateway for procedurally barred

habeas claims. habeas claims. Hererra v. CollinsHererra v. Collins, 506 U.S. 390 (1993). , 506 U.S. 390 (1993). 66thth Amendment: Failure to obtain potentially exculpatory Amendment: Failure to obtain potentially exculpatory

evidence ineffective assistance.evidence ineffective assistance.– But no ineffectiveness if testing not available at the time. But no ineffectiveness if testing not available at the time.

Strickland v. WashingtonStrickland v. Washington, 466 U.S. 668 (1984). , 466 U.S. 668 (1984).

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

Denial of Access to Potentially Exculpatory Evidence violates Denial of Access to Potentially Exculpatory Evidence violates 55thth, 6, 6thth, 8, 8thth and 14 and 14thth Amendments. Amendments.

Problems (according to Problems (according to Harvey v. HoranHarvey v. Horan, 278 F.3d 370, (4, 278 F.3d 370, (4thth Cir. 2002), 285 F.3d 298 (den. rehr’g and rehr’g en banc)).Cir. 2002), 285 F.3d 298 (den. rehr’g and rehr’g en banc)).– No civil actions implying invalidity of otherwise valid No civil actions implying invalidity of otherwise valid

criminal conviction under criminal conviction under §§1983. 1983. Heck v. HumphreyHeck v. Humphrey, 512 , 512 U.S. 477 (1994).U.S. 477 (1994).

– §§1983 action implying innocence would be tantamount to 1983 action implying innocence would be tantamount to habeas action, thereby circumventing habeas procedural habeas action, thereby circumventing habeas procedural requirements for exhaustion in 18 U.S.C. 2254(b). requirements for exhaustion in 18 U.S.C. 2254(b).

– If If §§1983 action is actually a habeas action, it may be 1983 action is actually a habeas action, it may be procedurally barred as a successive petition (unless procedurally barred as a successive petition (unless permission granted by court), under AEDPA.permission granted by court), under AEDPA.

Effect of Innocence Protection Act of 2001Effect of Innocence Protection Act of 2001 Right to testRight to test in federal cases if claim of innocence for in federal cases if claim of innocence for

– any federal conviction, including conviction used as sentence enhancer any federal conviction, including conviction used as sentence enhancer as career criminal / armed career criminalas career criminal / armed career criminal

Testing mandatoryTesting mandatory if if– evidence exists and is testable; evidence exists and is testable; – evidence never previously tested, or not with this test;evidence never previously tested, or not with this test;– testing uses a scientifically valid technique; andtesting uses a scientifically valid technique; and– testing has scientific potential to produce new, noncumulative testing has scientific potential to produce new, noncumulative

evidence material to claim applicant did not commit the offense. evidence material to claim applicant did not commit the offense. No testingNo testing if gov’t proves by preponderance application made if gov’t proves by preponderance application made

to unreasonably delay sentenceto unreasonably delay sentence States must adoptStates must adopt similar laws or lose federal DNA funds similar laws or lose federal DNA funds StatusStatus: Sen. Jud. Cmte. Approved 7/18/02; 240 House : Sen. Jud. Cmte. Approved 7/18/02; 240 House

SponsorsSponsors

Categories of Cases (Nat’l Comm’n on Categories of Cases (Nat’l Comm’n on the Future of DNA Evidence)the Future of DNA Evidence)

““Category 1.” Biological evidence collected, extant, and Category 1.” Biological evidence collected, extant, and exclusionary results will exonerate; should test by agm’t.exclusionary results will exonerate; should test by agm’t.

““Category 2.” Biological evidence collected, extant, and Category 2.” Biological evidence collected, extant, and exclusionary results would support claim of innocence; exclusionary results would support claim of innocence; parties may not agree on testing.parties may not agree on testing.

““Category 3.” Biological evidence was collected, extant, Category 3.” Biological evidence was collected, extant, but favorable results will be inconclusive; case may change but favorable results will be inconclusive; case may change category if technology improves.category if technology improves.

““Category 4.” Biological evidence never collected or Category 4.” Biological evidence never collected or cannot be found, destroyed, or so preserved it cannot be cannot be found, destroyed, or so preserved it cannot be tested; postconviction relief not possible.tested; postconviction relief not possible.

““Category 5.” Request for DNA testing is frivolous.Category 5.” Request for DNA testing is frivolous.

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 PunishmentIll. Governor’s Commission on Capital Punishment

– 85 recommendations overhauling capital system (April 2002)85 recommendations overhauling capital system (April 2002)– Include creating independent DNA lab, defense access to DNA database, Include creating independent DNA lab, defense access to DNA database,

allowing non-exonerative testing by defendantsallowing non-exonerative testing by defendants Invalidation of Federal Death Penalty. Invalidation of Federal Death Penalty. U.S. v. QuinonesU.S. v. Quinones (July 1, (July 1,

2002) (risk of error violates substantive due process).2002) (risk of error violates substantive due process). U.S. Sup.Ct. recognition of wrongful capital convictionsU.S. Sup.Ct. recognition of wrongful capital convictions

– ““[W]e cannot ignore the fact that in recent years a disturbing number of [W]e cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated.” inmates on death row have been exonerated.” Atkins v. VirginiaAtkins v. Virginia, 122 , 122 S.Ct. 2242, 2252, n. 25 (2002) (Stevens, J.).S.Ct. 2242, 2252, n. 25 (2002) (Stevens, J.).

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

Unreliability of Eyewitness ID’sUnreliability of Eyewitness ID’s– D.O.J.-Suggested Stnds.for Pre-trial Identifications (10/31/00)D.O.J.-Suggested Stnds.for Pre-trial Identifications (10/31/00)– Ill. Gov’s. Commission recommendations:Ill. Gov’s. Commission recommendations:

» Conduct double blind lineupsConduct double blind lineups» Tell witnesses perpetrator may not be presentTell witnesses perpetrator may not be present» Conduct sequential lineupsConduct sequential lineups» Videotape lineupsVideotape lineups

Junk Science Junk Science Unreliability of ConfessionsUnreliability of Confessions

– Videotape interrogations at police stationVideotape interrogations at police station– Repeat on tape unrecorded statementsRepeat on tape unrecorded statements

Investigative Techniques in GeneralInvestigative Techniques in General– Record statements of significant witnessesRecord statements of significant witnesses– Pursue all reasonable lines of inquiry – even exculpatory onesPursue all reasonable lines of inquiry – even exculpatory ones

ResourcesResources-Nat’l Comm’n on the Future of DNA Evidence, PostconvictionDNA Testing: Recommendations for Handling Requests (September1 9 9 9 ) [ a v a i l a b l e a t : http://www.ojp.usdoj.gov/nij/pubs-sum/177626.htm]

-[Illinois] Governor’s Commission on Capital Punishment, Reportof the Commission (April2002) [available at: http: //www.idoc.state.il.us/ccp/index.html].

-Edward Connors, et al, U.S. Dep’t of J., Nat’l Inst. of J., Convictedby Juries, Exonerated by Science: Case Studies in the Use of DNAEvidence to Establish Innocence After Trial (1996).

-Holly Schaffter, Postconviction DNA Evidence: a 500 PoundGorilla in State Courts, 50 Drake L. Rev. 695 (2002).

-Judith Goldberg & David M. Siegel, The Ethical Obligations ofProsecutors in Cases Involving Postconviction Claims of Innocence,38 Cal. W. L. Rev. 389 (2002).