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

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 • 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

3. Post-Conviction DNA Evidence in Individual Cases: Factual & Legal 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 • 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. • 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.

5. 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.

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). • 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).

7. 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. 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 • 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 gov’t 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

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 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.

10. Systemic Use of DNA in Post-Conviction Actions: Undermines Overall Systemic Reliability • Execution Moratoria (Illinois – 2000, Maryland – 2002) • 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). • 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 • 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 • 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

12. Resources