EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, September 19, 2018

"Privileging Public Defense Research," by Janet Moore, Ellen Yaroshefsky, and Andrew Davies

Janet Moore (University of Cincinnati College of Law), Ellen Yaroshefsky (Hofstra University - Maurice A. Deane School of Law), and Andrew Davies (New York State Office of Indigent Legal Services) have posted "Privileging Public Defense Research," 69 Mercer L. Rev. 771 (2017-2018) on SSRN. Here is the abstract:

Empirical research on public defense is a new and rapidly growing field in which the quality of attorney-client communication is emerging as a top priority. For decades, law has lagged behind medicine and other professions in the empirical study of effective communication. The few studies of attorney-client communication focus mainly on civil cases. They also tend to rely on role-playing by non-lawyers or on post hoc inquiries about past experiences. Direct observation by researchers of real-time defendant-defender communication offers advantages over those approaches, but injecting researchers into the attorney-client dyad is in tension with legal and ethical precepts that protect the very communication that is being studied. This Article discusses these problems and some responsive strategies. After assessing the available alternatives, the Article argues for judicial enforcement of an evidentiary privilege that protects and promotes empirical research on this high-priority topic.

Mercer

-CM

September 19, 2018 | Permalink | Comments (0)

Project DNA: Pennsylvania

Pennsylvania

The pertinent portion of Pennsylvania's postconviction DNA testing statute, 42 Pa. Cons. Stat. Ann. § 9543.1(c)(3)(i), states that a defendant seeking postconviction DNA testing must

(3) present a prima facie case demonstrating that the:

(i) identity of or the participation in the crime by the perpetrator was at issue in the proceedings that resulted in the applicant's conviction and sentencing

So, where does that leave pleading defendants? 

Continue reading

September 19, 2018 | Permalink | Comments (0)

Tuesday, September 18, 2018

Project DNA: Oregon

Oregon

The pertinent portion of Oregon's postconviction DNA testing statute, 2017 ORS § 138.690, states that

A person may file in the circuit court in which the judgment of conviction was entered a motion requesting the performance of DNA (deoxyribonucleic acid) testing on specific evidence if the person has been convicted of aggravated murder or a felony in which DNA evidence could exist and is relevant to establishing an element of the offense. 

So, where does that leave pleading defendants? 

Continue reading

September 18, 2018 | Permalink | Comments (0)

Monday, September 17, 2018

Project DNA: Oklahoma

Oklahoma

In 2013, Oklahoma became the 50th state to enact a postconviction DNA testing statute.  The pertinent portion of Oklahoma's postconviction DNA testing statute, 22 OK Stat § 22-1373.2(2), states that

Persons eligible for testing shall include any and all of the following:....

2. Persons convicted on a plea of not guilty, guilty or nolo contendere.

So, where does that leave pleading defendants? 

Continue reading

September 17, 2018 | Permalink | Comments (0)

Friday, September 14, 2018

Project DNA: Ohio

Ohio

Ohio is the only state with a postconviction DNA statute that explicitly precludes all pleading defendants from seeking testing. Its statute, Ohio Rev. Code Ann. § 2953.72(C)(2), provides that a defendant is not eligible for postconviction DNA testing “regarding any offense to which the offender pleaded guilty or no contest.” 

Continue reading

September 14, 2018 | Permalink | Comments (0)

Thursday, September 13, 2018

Project DNA: North Dakota

North Dakota

The pertinent portion of North Carolina's postconviction DNA testing statute, N.D. Cent. Code § 29-32.1-15(1)(a), states that a petitioner seeking postconviction DNA testing must establish that

[t]he testing is to be performed on evidence secured in relation to the trial which resulted in the conviction.

So, where does that leave pleading defendants? 

Continue reading

September 13, 2018 | Permalink | Comments (0)

Tuesday, September 11, 2018

Project DNA: North Carolina

North Carolina

The pertinent portion of North Carolina's postconviction DNA testing statute, NC Gen Stat § 15A-269(a), states that 

(a) A defendant may make a motion before the trial court that entered the judgment of conviction against the defendant for performance of DNA testing and, if testing complies with FBI requirements and the data meets NDIS criteria, profiles obtained from the testing shall be searched and/or uploaded to CODIS if the biological evidence meets all of the following conditions:

(1) Is material to the defendant's defense.

(2) Is related to the investigation or prosecution that resulted in the judgment.

(3) Meets either of the following conditions:

a. It was not DNA tested previously.

b. It was tested previously, but the requested DNA test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.

So, where does that leave pleading defendants? 

Continue reading

September 11, 2018 | Permalink | Comments (0)

Monday, September 10, 2018

Project DNA: New York

New York

As the Court of Appeals of New York noted in its recent opinion in People v. Tiger:

In 2012, the legislature added CPL 440.10 (1) (g-1) to allow a specific form of newly discovered evidence — DNA evidence — as a basis to collaterally attack a guilty plea at the postconviction stage. Significantly, that provision is the only one in CPL 440.10 that specifically refers to actual innocence — requiring a factual demonstration that is not necessary for the granting of relief under CPL 440.10 (1) (g). In recognition of the import of a guilty plea conviction that was constitutionally obtained, the legislature enacted different standards that must be satisfied as between a defendant who has pleaded guilty and one who has been convicted upon a verdict after trial. Under CPL 440.10 (1) (g-1), based on DNA results, a defendant who has pleaded guilty must demonstrate a "substantial probability" that he or she is actually innocent, whereas a defendant convicted after trial is held to the lesser standard that there is a "reasonable probability" that the verdict would have been more favorable (CPL 440.10 [1] [g-1]). To be sure, the fact that the legislature has recently carved out a basis to vacate a guilty plea where new evidence of DNA demonstrates actual innocence lends support to the conclusion that CPL 440.10 does not contemplate a separate constitutional claim to vacate a guilty plea based on new evidence as to guilt or innocence (see e.g. Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995] ["an inference must be drawn that what is omitted or not included was intended to be omitted and excluded"] [citation and quotation marks omitted]). Indeed, the narrow exception for new DNA evidence as a basis to vacate a conviction in plea cases is undoubtedly due to the recognition of the exceptional nature of DNA evidence as a reliable scientific tool to conclusively determine the identity of an assailant.

Continue reading

September 10, 2018 | Permalink | Comments (0)

Friday, September 7, 2018

Project DNA: New Mexico

New Mexico

The pertinent portion of New Mexico's postconviction DNA testing statute, N.M. Stat. Ann. § 31-1A-2(C)(5), states that a defendant seeking postconviction DNA testing must establish by a preponderance of the evidence that

identity was an issue in his case or that if the DNA testing he is requesting had been performed prior to his conviction and the results had been exculpatory, there is a reasonable probability that the petitioner would not have pled guilty or been found guilty.

So, where does that leave pleading defendants? 

Continue reading

September 7, 2018 | Permalink | Comments (0)

Thursday, September 6, 2018

Project DNA: New Jersey

New Jersey

The pertinent portion of New Jersey's postconviction DNA testing statute, N.J. Stat. Ann. § 2A:84A-32a(1)(a), states that:

(1) The motion shall be verified by the convicted person under penalty of perjury and shall do all of the following:

(a) explain why the identity of the defendant was a significant issue in the case.

So, where does that leave pleading defendants? 

Continue reading

September 6, 2018 | Permalink | Comments (0)

Wednesday, September 5, 2018

Aliza Kaplan & Janis Puracal, "It's Not a Match: Why the Law Can't Let Go of Junk Science."

Aliza Kaplan (Lewis & Clark Law School) and Janis Puracal (Oregon Innocence Project) have posted their article, "It's Not a Match: Why the Law Can't Let Go of Junk Science," (Albany Law Review) on SSRN. Here is the abstract:

In this article, we argue that there is a need to increase validity and reliability of forensic science in the criminal justice system through a collaborative approach. In part II, we explain the legal rules governing the admissibility of scientific evidence in criminal cases and the evolution of that law over time. Parts III and IV describe a 2016 report by the President’s Council of Advisors on Science and Technology (“PCAST”), which analyzed the methodology and validity of many “pattern identification” or “feature-comparison” methods. PCAST asked whether DNA analysis, bite marks, latent fingerprints, firearms identification, and footwear analysis are supported by reproducible research, and is, therefore, reliable evidence. PCAST concluded that many of these forensic methods lack validation studies and need to be addressed. The PCAST Report followed an earlier report by the National Academy of Sciences (“NAS”) in 2009, which enumerated the problems in the forensic science community and the need for significant improvement. In Part V, we address the opposition to the PCAST Report from the National Association of District Attorneys, United States Attorney General, and FBI, along with PCAST’s response to that opposition. Part VI focuses on the promise of the PCAST Report, in particular how implementing its recommendations could help reduce the numbers of wrongful convictions, massive case reviews, and crime lab scandals. We also discuss the broader impact of forensic reform to protect the integrity of our justice system. Unfortunately, as we discuss in Parts VII and VIII, there has been little change in the law to prevent the admissibility of faulty forensics and in fact, courts continue to regularly admit questionable and invalid forensic science into evidence. We explore the reasons for the lack of change, including our reliance on past precedent that makes the legal system a poor venue for forensic reform with a more concerted effort. In Part IX, we note that the likelihood of change coming from the federal government is low as the Obama Administration failed to implement any plan for change after the PCAST Report and the current Administration announced last April that it would not renew the National Commission on Forensic Science. In Parts X and XI, we discuss the need for further collaboration between scientists and lawyers/judges, and we propose a specialized role of forensic resource counsel to help facilitate that collaboration.

-CM

September 5, 2018 | Permalink | Comments (0)

Season 3 of the Serial Podcast and the Greg Rucker Case

Today, Serial released a trailer for Season Three of the podcast. In the trailer, Sarah Koenig makes clear that the team won't be covering a single case like they did in Season One (Adnan Syed) or Season 2 (Bowe Bergdahl). Instead, they will be covering a variety of "ordinary" cases from Cleveland to help shine a light on various issues in the criminal justice system. In the trailer, Koenig highlights one of these cases, the case of Greg Rucker. In the trailer, Koenig makes clear that she eventually convinced of Rucker's guilt; she seems to mention the case to highlight what's known as the "trial penalty" that defendants face by going to trial instead of taking a plea deal. So, what can the Greg Rucker case tell us about the trial penalty? 

Continue reading

September 5, 2018 | Permalink | Comments (1)

Tuesday, September 4, 2018

Project DNA: New Hampshire

New Hampshire

The pertinent portion of New Hampshire's postconviction DNA testing statute, N.H Rev. Stat, § 651-D:2(1)(a), states that:

I. A person in custody pursuant to the judgment of the court may, at any time after conviction or adjudication as a delinquent, petition the court for forensic DNA testing of any biological material. The petition shall, under penalty of perjury:

(a) Explain why the identity of the petitioner was or should have been a significant issue during court proceedings notwithstanding the fact that the petitioner may have pled guilty or nolo contendere, or made or is alleged to have made an incriminating statement or admission as to identity.

So, where does that leave pleading defendants? 

Continue reading

September 4, 2018 | Permalink | Comments (0)

Monday, September 3, 2018

Project DNA: Nevada

Nevada

The pertinent portion of Nevada's postconviction DNA testing statute, Nev. Rev. Stat. § 176.0918(3)(d), states that

A petition filed pursuant to this section must be accompanied by a declaration under penalty of perjury attesting that the information contained in the petition does not contain any material misrepresentation of fact and that the petitioner has a good faith basis relying on particular facts for the request. The petition must include, without limitation:....

If applicable, the results of all prior genetic marker analysis performed on evidence in the trial which resulted in the petitioner s conviction.

So, where does that leave pleading defendants? 

Continue reading

September 3, 2018 | Permalink | Comments (0)

Saturday, September 1, 2018

Project DNA: Nebraska

Nebraska

The pertinent portion of Nebraska's postconviction DNA testing statute, Nebraska Revised Statute 29-4120(5), states that

Upon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion filed under subsection (1) of this section upon a determination that (a)(i) the biological material was not previously subjected to DNA testing or (ii) the biological material was tested previously, but current technology could provide a reasonable likelihood of more accurate and probative results, (b) the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, and (c) such testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced.

So, where does that leave pleading defendants? 

Continue reading

September 1, 2018 | Permalink | Comments (0)

Thursday, August 30, 2018

Project DNA: Montana

Montana

The pertinent portion of Montana's postconviction DNA testing statute, Mont. Code Ann. § 46-21-110(5)(b), states that

The court shall grant the petition if it determines that the petition is not made for the purpose of delay and that:...

the identity of the perpetrator of the felony was or should have been a significant issue in the case.

So, where does that leave pleading defendants? 

Continue reading

August 30, 2018 | Permalink | Comments (0)

Wednesday, August 29, 2018

Project DNA: Missouri

Missouri

The pertinent portion of Missouri's postconviction DNA testing statute, Mo. Rev. State Section 547.035(5), states that

Upon the issuance of the order to show cause, the clerk shall notify the court reporter to prepare and file the transcript of the trial or the movant's guilty plea and sentencing hearing if the transcript has not been prepared or filed.

So, where does that leave pleading defendants? 

Continue reading

August 29, 2018 | Permalink | Comments (0)

Tuesday, August 28, 2018

Project DNA: Mississippi

Mississippi

The pertinent portion of Mississippi's postconviction DNA testing statute, Miss. Code Ann. § 99-39-5(2)(ii), allows for postconviction DNA testing

even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime.

So, where does that leave pleading defendants? 

Continue reading

August 28, 2018 | Permalink | Comments (0)

Monday, August 27, 2018

Project DNA: Minnesota

Minnesota

The pertinent portion of Minnesota's postconviction DNA testing statute, Minn. Stat. Ann. § 590.01, Subdivision 1a(b)(1) provides that the defendant must present a prima facie case that, inter alia,

identity was an issue in the trial.

So, where does that leave pleading defendants? 

Continue reading

August 27, 2018 | Permalink | Comments (0)

Friday, August 24, 2018

Project DNA: Michigan

Michigan

The pertinent portion of Michigan's postconviction DNA testing statute, Mich. Comp. Laws Ann. § 770.16(4)(b)(iii), provides that the defendant must establish by clear and convincing evidence that, inter alia,

The identity of the defendant as the perpetrator of the crime was at issue during his or her trial.

So, where does that leave pleading defendants? 

Continue reading

August 24, 2018 | Permalink | Comments (1)