Ms. Hillary Kessler wrote an exceptional, intriguing and well written paper for Professor Birdsong’s Criminal Justice Administration Seminar last semester. She proposes that there be a Constitutional Amendment to ensure that DNA evidence be allowed at trial to solidify the rights of those accused of crimes.
Read and learn:
How Available DNA Evidence Solidifies the Rights of the Accused: A Constitutional Approach
Hillary Kessler © 2013
I. INTRODUCTION
In the past twenty-four years, there have been a total of 311 post-conviction exoneration cases that have occurred through the use of DNA evidence[1] in criminal trials. DNA evidence is a relatively new forensic discipline utilized by the criminal justice system.[2] Despite being a newer method of obtaining evidence for or against a criminal defendant, DNA testing has become one of the primary factors used in an attempt to reform our justice system. It has provided scientific evidence that our criminal justice system not only sentences and convicts innocent people, but has also shown that wrongful convictions are not rare or isolated events. This leads me to my purpose in writing this piece in the first place: to illustrate the notion that our nation’s criminal justice system is fundamentally flawed. I aim to propose a constitutional amendment solidifying the rights of the accused by allowing for the use of DNA evidence in post-conviction exoneration criminal trials where its probative value is outweighed by the cost and burden it places on the court.[3]
Our criminal justice system is supposed to take an adversarial approach where people are presumed innocent unless and until proven guilty beyond a reasonable doubt. 311 wrongfully convicted individuals have proven that our criminal justice system has begun to stray away from this approach. In a nation where governmental structure and laws are supposed to provide stability and comfort to the people; we find we are at a point where we are beginning to lose faith in the capabilities of our leadership. As more exonerations occur, the need for a more legitimate reform proposal is inevitable. Without reform, faith may never be restored in our nation’s criminal justice system.
My position is to propose a constitutional amendment solidifying the rights of the accused by allowing for the use of DNA evidence in post-conviction exoneration criminal trials where its probative value is outweighed by the burden and cost that DNA testing places on the courts. As of right now, it is clear that current legislation does not provide enough of a safeguard to protect those charged in criminal trials from being falsely accused and convicted of a crime they did not commit. I am specifically focusing on post-conviction exoneration cases in order to show the effect that a lack of a uniform and sufficient system of testing DNA can have on the judicial system. In proposing a constitutional amendment solidifying the rights of the accused by allowing for the use of DNA evidence in every post-conviction exoneration criminal trial where its probative value is outweighed by the burden and cost that DNA testing places on the court, the shortcomings of our justice system may be curtailed, possibly indefinitely. I will discuss seven separate causes[4] that contribute to the need for DNA evidence in all post-conviction criminal trials: (1) Improper Identification Of Assailant; (2) Improper Use Of Forensic Evidence; (3) Coerced Confessions; (4) Overzealous Prosecutors; (5) Informants With An Incentive To Testify; (6) Overworked Defense Counsel; and (7) Misuse of the Federal Rules of Evidence.
A constitutional amendment of this nature means a world of changes for our criminal justice system. Judges’ very interpretation of one of our nation’s oldest documents, the Constitution, would change dramatically. They would be required to divest almost all of the current knowledge they presently hold and be willingly to adhere to the new standards of federal law if my constitutional proposal were to be adopted.
II. BACKGROUND ON POST-CONVICTION EXONERATIONS AND THE USE OF DNA EVIDENCE IN CRIMINAL TRIALS
A. History
Nationwide, there have been a total of 1,241[5] exonerations, 311 of which occurred through the use of DNA evidence.[6] Post-conviction exonerations through the use of DNA evidence are a relatively new occurrence within our criminal justice system.[7] In the past twenty-four years there have been a whopping 311 post-conviction exonerations that have occurred.[8] These large numbers illustrate the need for reform: I argue that reform comes in the form of a proposal for a constitutional amendment providing for the use of DNA evidence in criminal trials in order to solidify the rights of the accused. The influx of post-conviction exonerations that have occurred through the use of DNA evidence are not the only indicator that our system needs to be reformed.
A highly publicized study examining thousands of capital sentences over a 23 year period (1973-1995) found serious reversible errors in almost 70% of cases.[9] This is relevant to the 311 post-conviction exonerations that have occurred through the use of DNA evidence because the year of conviction in most of those cases occurred during the time this study was conducted.[10] Although not all 311 of the cases were capital cases, the study is relevant to show that similar causes were to blame for the discrepancies that were and continue to occur within our criminal justice system.
B. Statistics
Taking the 311 exoneration cases that have occurred through the use of DNA evidence, I broke the cases down by state in order to analyze the data so as to conform with my argument that reform is not only suggested, it is inevitably necessary. First, I took an economic approach and calculated the total cost to tax payers nationwide for imprisoning these innocent people. Next, after breaking the cases down by state I was able to make several hypotheses about the data. Statistical reasoning shows that many cases decided during the same time period produced the same results or similar unfair results, illustrating a need for a more standardized method of trying these types of cases. In analyzing the data I found a correlation relating to race, time of conviction,[11] and judge behavior.
In taking an economic approach and breaking the states down individually I was able to calculate the total national cost to tax payers for incarcerating these 311 innocent people at $12,719,900,000.[12] (12 trillion, seven hundred seventy-one billion, nine hundred million).[13] This figure does not include compensation.[14] To provide a peek into the monstrous cost to tax payers when compensation is factored in, I refer to the case of Robert Dewey: a man in Colorado who was wrongfully incarcerated for 17 years. The total cost per inmate, per year in Colorado is $30,374.[15] That would be a total cost of $516,358 for the time he spent in jail. The state was required to pay him an additional $1.2 million, totaling a cost of $1,716,358 to incarcerate an innocent man. In effect, tax payers are paying for the mistakes of our judicial system. These numbers alone should provide enough of an incentive to reform our criminal justice system.
In addition to the atrocities uncovered by taking an economic approach, I was able to analyze the data to form my own hypotheses relating to race, time of conviction, and judge behavior. Of the 311 post-conviction exonerations that have occurred through the use of DNA evidence, 70 percent of those exonerated were persons of color.[16] This factor may possibly be attributed to the time and the judges’ behavior as a result of the time.[17]
A large majority of these 311 cases have a year of conviction between the 1970s and 1990s. The Civil Rights Act was passed in 1964[18], ending racial segregation in the United States. Although the act had been passed, white people were still reluctant to follow the law and still held strong racial attitudes against black people. In addition, a large majority of these post-conviction exoneration cases were decided shortly after the enactment of this act by predominantly white, male judges. This correlation may suggest an explanation as to why so many of these post-conviction exoneration cases evidence involved predominately persons of color. This could also explain why many cases decided during the same time period produced the same results or similar unfair results, further illustrating a need for a more standardized method of trying these types of cases.
III. CRIMINAL COURTS AND THEIR ISSUES
A. Criminal Court Problems
As I’ve mentioned there is a need for reform in our criminal justice system. Before I can adequately discuss a course of action in formulating a proper reform, it is relevant to discuss the current shortcomings of our criminal justice system. I do this in order to identify what my reform proposal actually aims to resolve, or at least hinder. Although the causes are endless, I focus on seven[19] specific shortcomings that contribute to the need for DNA evidence in all criminal trials: (1) Improper Identification Of Assailant; (2) Improper Use Of Forensic Evidence; (3) Coerced Confession; (4) Overzealous Prosecutors; (5) Informants With An Incentive To Testify; (6) Overworked Defense Counsel; And (7) Misuse Of The Federal Rules Of Evidence.[20]
1. Improper Identification Of Assailant
For the past three decades, the judiciary has viewed eye-witness testimony as a golden assurance in providing truthful and reliable testimony favorable to the prosecutors evidence in a criminal trial proceeding[21]. However, research conducted by The Innocence Project suggests that eyewitness misidentification is often unreliable. The human mind is not a tape recorder; meaning it does not and cannot record events exactly as we see them or recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved precisely, otherwise it can be contaminated[22]. According to research conducted by the Innocence Project, eyewitness misidentification was the single greatest cause of wrongful convictions nationwide.[23] This is not to suggest that all assailants are wrong when they identify alleged perpetrators, but rather to move towards the notion that scientific data, such as DNA testing, provides much more accurate results in criminal trials than the testimony of witnesses. By predominantly using scientific data, the criminal justice system could eliminate many credibility issues that arise when considering the testimony of a witness.
This shortcoming can be observed when considering the case of Orlando Boquete who was arrested and convicted of attempted sexual battery and burglary on the morning of June 25, 1982 in Stock Island, Florida.[24] Two Latino men had broken into the victim’s apartment, one of which sexually assaulted her. The first perpetrator was described as Latino with no shirt and no hair. Within minutes of the incident, an officer stopped several Cuban-American men in a convenience store parking lot. Orlando Boquete was the only one who had no hair and no shirt. The victim identified Boquete as her attacker from 20 feet away as he was in a police car. Boquete had a large, black moustache at the time of his arrest. After identifying Boquete, the victim added to her description that the attacker had a moustache. Boquete testified at trial that he had been home watching television with his family before going to the convenience store. Despite his objections and offering of an alibi on the morning of the event, Boquete was convicted and sentenced to fifty years in prison[25].
This case shows how unreliable a witness’s testimony and identification can be. The victim claimed to be sexually assaulted and initially identified the perpetrator as a Latino man. It was only after the victim saw Boquete in the back of a police car that she changed her description of the perpetrator so as to claim he had a large black mustache. This process is called “relative judgment process[26].” A large black mustache is a hard thing to miss especially when Boquete was allegedly on top of her when she initially awoke on the morning of the alleged sexual assault. A face-to-face encounter would solidify the inquiry of whether the victim had truly seen her perpetrator long enough to where she could identify him if she saw him again. In this case it was clear the victim could not honestly and truthfully identify the perpetrator. As a result, an innocent man spent twelve years in prison for a crime he did not commit, providing further evidence that reform within our criminal justice system is necessary.
2. Improper Use Of Forensic Evidence
Improper use of forensic evidence can occur in a number of instances: forensic scientists may read test results wrong; they may perform tests wrong; contaminate evidence; or engage in misconduct[27]. Forensic scientists can often misread a DNA test result. In doing this, they essentially subject an innocent person to wrongful incarceration. Sometimes forensic scientists may perform tests wrong as well. This stems from a need for forensic scientists to be adequately trained and supervised.[28] Forensic scientists often contaminate evidence because they aren’t properly trained on how to store evidence. Contaminated evidence can mean the difference between an innocent person being set free and spending the rest of their life in prison. Lastly, forensic scientists will often engage in misconduct[29]. A constitutional amendment would provide a greater incentive for forensic scientists to take extra precautions when testing DNA evidence, preserving DNA evidence, and when reading tests conducted through the use of DNA evidence.
There are currently no scientific standards or guidelines to abide by when conducting DNA tests for criminal cases. There aren’t any guidelines because most of these tests were created by the criminal justice system in order to solve crimes. I say this because it is clear that the purpose in utilizing many of these types of DNA test was not to determine the biological makeup of someone for the purpose of accusing or acquitting them of committing a crime. Also, another major issue to consider when conducting forensic tests is the actual testimony provided by the scientists. There are times when they will apply the use of a forensic method without having any form of scientific validation to support the test results. If there were a Constitutional provision allowing the use of DNA evidence in criminal trials to solidify the rights of the accused, a lack of scientific testing standards would be one of the first issues eliminated with my constitutional proposal.
This shortcoming can be seen in action when considering the case of Lafonso Rollins. In early 1993, Lafonso Rollins, a ninth grade special education student was arrested and charged with a series of robberies and rapes of four elderly women[30]. At trial serological testing was conducted on semen from the crime scene, and the results should have excluded Rollins as a suspect, but prosecutors did not report the exclusion to defense attorneys. Rollins was convicted as an adult, and sentenced to 75 years in prison for the rape of a 78-year-old woman. In 2004, further DNA tests were performed and again the test exculpated Rollins and revealed the same perpetrator had sexually assaulted both victims.
After spending ten years in prison, Rollins was released. This is a prime example of a forensic analyst reading a DNA test wrong and engaging in misconduct. The lab analyst had knowledge that the serological tests excluded Rollins as a suspect but did not raise that issue at trial when they feasibly could have. The prosecution was aware of this fact but by failing to disclose this exclusionary information to the defense counsel too, the lab analyst failed to adhere to a basic aspect of his or her duties: to truthfully and honestly report the results of DNA tests. Another important point to consider is the fact that Rollins was legally mentally incapacitated and his grade placement in his school was evidence of that condition. It could be argued that he could not have adequately and competently been able to stand trial. He should have been provided further protections not only as a mentally inferior individual but also as a minor.[31] A constitutional proposal could provide the necessary safeguards to prevent instances similar to this one from occurring in the future.
3. Coerced Confessions
Oftentimes, law enforcement officials will coerce a defendant into confessing something they would not have otherwise said. This is a direct violation of the 5th Amendment right against self-incrimination and in a broader sense, a direct violation of the rights of the accused. Leaning towards a more scientific approach to the use of evidence in criminal trials could lead to a decrease in the need for witness and party testimony. This could decrease the number of false confessions and confessions achieved through police coercion. If police officers know a confession will hold less weight in a criminal trial where DNA testing, or some other form of scientific testing is performed, it may provide an incentive for them to modify their current behavior and possibly cease their destructive behavior altogether.
One of the strongest illustrations of this shortcoming can be found in the case of George Allen Jr.[32] George Allen Jr. is the epitome of what it means to be in the wrong place at the wrong time. On the evening of February 4, 1982, a woman by the name of Mary Bell was found dead in her home[33]. Her autopsy showed that the cause of death was multiple stab and incised wounds to the victim’s back and neck, and there was evidence consistent with sexual assault.[34] Originally, police had a list of suspects, one of whom was Kirk Eaton.[35] On March 14, 1982, by a chance encounter, police approached George Allen several blocks from the victim’s house and—mistaking him for Eaton— brought him in for questioning.[36] A detective later realized the mistake, but initiated interrogating Allen nevertheless. Allen, who has an extensive history of severe mental illness, including hospitalizations for schizophrenia, eventually confessed to raping and murdering the victim.[37]
This case illustrates the atrocities law enforcement officers are willing to commit in order to reach their quotas and fill their jails and prisons. Before questioning George Allen Jr., detectives in this case were fully aware that he was not the suspect they were looking for. Instead of doing what they should have done, which was to release George Allen Jr. and halt the interrogation,[38] law enforcement officers chose to press a non-existent issue and coerce a confession from an innocent man. Not only did they coerce a confession, they coerced a confession from a man with a known mental infirmity. They would have let George Allen Jr. suffer the death penalty had DNA evidence not come along and saved his life, literally. I don’t image one could morally go much lower than the law enforcement officers did in this case. The actions of the law enforcement officers shows that the George Allen Jr. case was not their first rodeo: they clearly participate in the practice of coercing confessions and being dishonest on a regular basis.[39] My proposal for a constitutional amendment eliminates or at least aids in hindering this shortcoming because in that proposal I aim to invalidate or at least substantially decrease the weight given to a confession obtained during police interrogations when used in criminal trials.
4. Overzealous Prosecutors
In many instances an individual is convicted due to the presence of overzealous prosecutors looking only to secure convictions rather than help resolve a case on the merits and evidence presented. Part of this behavior stems from a prosecutor’s incentive to maintain their positions in the criminal justice system. They do this by securing convictions so as to appear “tough on crime” so when it comes time for reelection, their candidacy is solidified.[40]More convictions produce the illusion that a given prosecutor is doing their job right; while in effect they are actually subjecting innocent persons to the qualms that may arise in securing a quantity of convictions as opposed to the quality of convictions.
For instance, consider the case of Derrick Williams,[41] a young black man falsely convicted and sentenced to two consecutive life sentences for sexual battery, robbery, grand theft auto, and two counts of battery.[42] On August 6, 1992, a 25-year-old white woman arrived at her home and noticed a black man standing on her front porch. After watching the man walk off her property, the woman attempted to exit her vehicle when the man suddenly reappeared and forced his way inside her car. The man proceeded to tie her up in the backseat of her car, rape her, and then disappeared leaving only his shirt behind. The victim was able to untie herself and drive herself home.
When shown a photo-lineup of potential perpetrators Williams’ picture was included twice causing the victim to “positively” identify Williams as her attacker. When shown an in-person lineup the victim again identified Williams as her attacker; an individual she had only seen once twenty feet away from her car whilst raining outside. At trial her identification was key evidence in securing Williams’ conviction in addition to admitting the shirt that was left behind on the day of the incident. DNA tests were performed on the shirt and a microscopic examination determined that the hair left behind on the shirt did not belong to Williams. The prosecution argued the inaccuracy of microscopic hair analysis and maintained the shirt belonged to Williams based on the testimony of Williams’ girlfriend who claimed that Williams left the house wearing a grey t-shirt and returned wearing a red t-shirt.[43] Despite all efforts, Williams was convicted and sentenced to life in prison.
The prosecutors in this case were overzealous in confirming Williams’ conviction. Scientific testing, while not one hundred percent accurate is much more reliable than a weak, unfounded claim asserted through witness testimony. The DNA test performed on the shirt overwhelmingly indicated that the DNA present on the shirt did not belong to Williams. At that point in the trial, prosecutors should have hung their heads and walked away from the case silently. There was no need to press the issue any further once the DNA test results had been rendered. Luckily for Williams nearly all evidence from his case had been destroyed by mass incineration in 2003.[44] A water leakage had flooded a vault and the resulting water damage to materials from his case was irreparable. The negligence of law enforcement officials resulted in the destruction of evidence from approximately 3,600 cases.[45] Subsequently, Williams’ conviction was vacated on grounds of violations of his due process rights.[46] The prosecutors did not win the overzealous battle to secure a conviction in this case but in other instances the defendant does not get away unscathed by the clutches of our faulty criminal justice system.
5. Informants With An Incentive to Testify[47]
There are many instances where an informant or “snitch” will have an incentive to testify against the defendant. These incentives could include anything from money to a reduction in sentencing.[48] Whether it is for a sentence reduction or for money, I would still consider this form of evidence intake to be illogical and unreliable.[49] I make this argument because when an informant testifies against a defendant at trial, they may be testifying for other reasons not disclosed to the jury. This could cause juries to produce unreliable or faulty verdicts because the grounds upon which their verdicts rest could be entirely different had the informant not been permitted to testify at all. Most often it is the state that is utilizing the use of an informant witness. This can be viewed in conjunction with the overzealous prosecutor shortcoming because it appears that prosecutors may use informant witnesses as a “tool” in securing convictions.[50] A constitutional amendment would eliminate the state’s ability to manipulate unreliable witnesses and it would force prosecutors to decide cases predominantly on the merits: based on the relevant evidence and facts presented at trial.
6. Overworked Defense Counsel
It can’t rain all the time, there comes a point where the rain stops pouring and the sun begins to shine. The same concept can be applied to lawyers: sometimes there are bad lawyers but every once in a while you come across good defense counsels that shed light in a place where others cannot. When there are not good defense lawyers present, the question of effective representation arises. The key to success in any criminal case is the utilization of a good source of legal representation. In many wrongful conviction cases there is no other cause to blame other than the defense counsels themselves. Oftentimes, defense counsels are overloaded with an influx of cases all at once. When this happens defense counsels often don’t spend enough time on their cases.[51] Many wrongful convictions could have been prevented through due diligence. A lack of due diligence occurs when a defense counsel doesn’t have enough time to review and prepare cases thoroughly and adequately. This discrepancy brings up the issue of due process because it raises the question that if counsel is poorly representing a defendant, is that defendant truly receiving their due process rights? I answer in the negative, providing in part why I am arguing for a constitutional amendment so as to properly solidify those inalienable rights guarantee to an accused in a criminal trial.
An illustration of this shortcoming in action can be seen in the case of Jimmy Ray Bromgard.[52] On March 20, 1987, a young girl was attacked in her Billings home by an intruder who had broken in through a window. She was raped vaginally, anally, and orally[53]. Bromagard was included in a video lineup where the victim claimed she was “60-65%” sure he was her assailant[54]. In addition to the less than reliable identification of Bromgard, the only evidence that could be tested fell down to a hair sample left on the bed[55]. The forensic analyst did a less than acceptable job in analyzing or properly performing the necessary tests[56].
To put it lightly,“Bromgard’s defense counsel was woefully inadequate[57].” Other than the forensic evidence, the only other physical “evidence” was a checkbook from the victim’s purse that was found on the same street where Bromgard lived. His attorney did no investigation, hired no expert to debunk the state’s forensic expert, filed no motions to suppress the identification of a young girl who was, according to her testimony, at best only 65% certain , gave no opening statement, did not prepare a closing statement, and failed to file an appeal after Bromgard’s conviction[58].
This was an innocent man who spent fourteen and a half years behind bars for a crime he did not commit. His innocence could have easily been proved at his original trial had his defense counsel provided more accurate representation. My Constitutional amendment proposal will solve this problem, at least partially, because DNA testing would make it easier to rebut evidence against a given criminal defendant making it easier for defense counsels to adequately represent their clients.
7. Misuse of the Federal Rules of Evidence.
When approaching this shortcoming, I address it in a different manner than the other six I have previously identified because in the realm of DNA evidence and post-conviction exonerations, this shortcoming becomes the most important. Prior to the judicial decisions and rules enacted as they related to scientific expert testimony, it was very common for prosecution and defense counsel to misuse the Federal Rules of Evidence. Because DNA analysts were able to testify against a defendant at trial, F.R.E. 702 and 703[59] were being utilized in such a manner to allow expert testimony that was not highly reliable to be used against a defendant in a criminal trial.
I begin the evolution of “law-based” forensic science with the adoption of the Federal Rules of Evidence in 1975[60] and the “revolutionary Daubert Decision” in 1993. The Federal Rules of Evidence “should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”[61] The Federal Rules of Evidence are a prominent source of reliance for a criminal court when considering the expert testimony of a DNA analyst in a criminal trial. This can be illustrated in the case of Daubert v. Merrell Dow Pharmaceuticals, Inc.[62]
In Daubert, the court applied Rule 702[63] as the standard admitting expert scientific testimony. Under this decision, the court strayed away from the “general acceptance” standard that came from the Frye[64] case. The court in Daubert assumed that judges would act as the gatekeepers for allowing or disallowing scientific expert testimony in criminal trials.[65] However, the court did not assume the issue of how admitting testimony of this sort would affect a defendant’s right to Confrontation under the Sixth Amendment.[66] The issue of a defendant’s right to confrontation was considered in the case of Crawford v. Washington.[67]
A promulgation of these decisions and standards and how they apply to the use of DNA evidence in post-conviction criminal trials can be seen with the 2009 case of Melendez-Diaz v. Massachusetts.[68] By virtue of its content and the rules established, testimony from a scientific expert is testimonial hearsay. Melendez-Diaz is the most recent decision since Crawford, defining the scope of the Confrontation Clause.
According to the Melendez-Diaz plurality, a defendant’s confrontation rights are violated when prosecutors introduce forensic lab reports without making the forensic analyst available for cross-examination.[69] The decision in this case was principally based on the plurality’s conclusion that the lab reports at issue were “testimonial statements” under Crawford.[70] In addition, Justice Thomas’ fifth-vote concurrence limited the Court’s holding to his view that extrajudicial statements only implicate the Confrontation Clause if they have been adequately formalized.[71] This case could be seen to suggest that the Confrontation Clause requirement that DNA analysts be made available for cross-examination in a criminal trial can compensate for judges’ failure to screen seriously deficient expert evidence.[72] In short, this case embraces the idea rejected by Daubert—that cross-examination of expert witnesses will ensure that law does not rely on bad science.[73]
The concepts that are important to take away from Melendez-Diaz are: currently, the Courts recognize expert scientific testimony as “formalized testimonial statements” falling under the scope of the Confrontation Clause. It is considered “formalized testimonial statements” because the testimony of a scientific expert is given in the form of an affidavit. This is relevant because under Crawford, affidavits fell under the category of “formal testimonial statements” allowing for the utilization of the Confrontation Clause. These rules and precedence taken collectively, allow defendants to cross-examine a DNA analyst in post-conviction criminal trials, thus hindering the courts, prosecutions and defense counsel’s ability to misuse of the Federal Rules of Evidence.[74]
IV. CONSTITUTIONAL AMENDMENT PROPOSAL
A. Amending The Constitution
1. History
As citizens from a nation whose government practices the utilization of Constitutions to outline the rights of the people and the rules and structure of the government; we often overlook the difficulties faced when attempting to amend such prominent legal documents. In fact, since the ratification of the Constitution in 1788, there’s only been 27 Amendments ratified, 10 of which occurred almost immediately in 1791 and became known as the Bill of Rights.[75] This means that in 221 years, only 17 Amendments have withstood the near impossible task of becoming a ratified Amendment.[76]
2. Process
In order to amend the Constitution, one must refer to Article V.[77] Under Article V, amending the Constitution is a two-step process.
Step One: Proposing An Amendment. In order to propose an amendment there are two ways to approach doing so: (1) the Congress, whenever two- thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or (2) In the application of the legislature of two- thirds of the several states, [the Congress] shall call a convention for proposing amendments. None of the 27 amendments to the Constitution have been proposed by constitutional convention.[78]
Step Two: Ratification Of An Amendment. In order to make a proposed amendment effective, it must first be ratified. There are two ways to approach doing so: (1) In either case, [amendments] shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several states,[79] or (2) [amendments shall be valid when ratified] by conventions in three-fourths thereof [i.e. of the several states]. Congress chooses which method of ratification (i.e. by state legislatures or by state conventions) to use during the ratification process. I highlight the process of amending and ratifying an amendment because in proposing my own constitutional amendment to solidify the rights of the accused through the use of DNA evidence in post-conviction criminal trials, this would inevitably be the final process the amendment would need to overcome in order to become effective federal law.
In proposing my constitutional amendment, the task of achieving an effective federal law will be no cake walk. It is important to mention that currently, there are only 35 states that have handled post-conviction exonerations through the use of DNA evidence.[80] This means that the only way to get a constitutional amendment proposed and ratified would be if there were 38 states in support of the amendment.[81] In addition, there are only 29 states that provide compensation to those who have been wrongfully accused and incarcerated for a crime they did not commit.[82] Gaining support from the other states is tantamount to a successful amendment being proposed and adopted.
B. Current Federal Legislation Concerning The Use of DNA Evidence in Criminal Trials And Post-Conviction Exonerations
1. Justice For All Act of 2004
When the Justice for All Act of 2004 was enacted the purpose of the act was,
“To protect crime victims’ rights, to eliminate the substantial backlog of DNA samples collected from crime scenes and convicted offenders, to improve and expand the DNA testing capacity of Federal, State, and local crime laboratories, to increase research and development of new DNA testing technologies, to develop new training programs regarding the collection and use of DNA evidence, to provide post-conviction testing of DNA evidence to exonerate the innocent, to improve the performance of counsel in State capital cases, and for other purposes.”[83]
When the Justice for All Act of 2004 was enacted it created four collateral or related acts: (1) The Debbie Smith Act Of 2004; (2) The DNA Sexual Assault Justice Act Of 2004; (3) Innocence Protection Act Of 2004; And (4) The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, And Nila Lynn Crime Victims’ Rights Act.[84]
I. THE DEBBIE SMITH ACT OF 2004
The Debbie Smith Act of 2004 is a federal grant program that directs the Attorney General to distribute grant amounts and establish appropriate grant conditions in conformity with formulas designed to distribute funds among States and local governments in a manner that: (1) maximizes the use of DNA technology to solve crimes and protect public safety; and (2) allocates grants fairly and efficiently to address jurisdictions in which significant backlogs exist by considering the number of samples awaiting DNA analysis, the population, and the number of part 1 violent crimes in a jurisdiction.[85] Further, the act allows States to include within the Combined DNA Index System (CODIS),[86] the DNA profiles of all persons who have been indicted or who have waived indictment for a crime, and whose DNA samples have been collected under applicable legal authorities, but not profiles from samples voluntarily submitted solely for elimination purposes. The Act requires, as a condition for access to CODIS, that a State promptly expunge the DNA analysis of a person not convicted if all charges have been dismissed or resulted in acquittal.[87]
I don’t delve any further into this collateral act because the 110th Congress reauthorized this Act with The Debbie Smith Reauthorization Act of 2008 to extend the effective grant years from 2009-2014.[88] This act is still good law that remains effective today. It also continues to assist in the reduction of improper use of DNA evidence for use in criminal trials.
II. THE DNA SEXUAL ASSAULT JUSTICE ACT OF 2004
Under this Act, the CODIS can only include information on DNA identification records and analyses that are prepared by laboratories that: (1) have been accredited by a nationally recognized nonprofit professional association of persons actively involved in forensic science; and (2) undergo external audits that demonstrate compliance with standards established by the FBI Director.[89] It Directs the Attorney General to make grants to eligible entities to provide training, technical assistance, education, and information relating to the identification, collection, preservation, analysis, and use of DNA samples and DNA evidence to: (1) organizations consisting of or representing law enforcement personnel, court officers, forensic science professionals, or corrections personnel; and (2) States, local governments, and sexual assault examination programs for medical and other personnel involved in treating victims of sexual assault.[90]
The Debbie Smith Reauthorization Act of 2008 also reauthorized this collateral act[91] so I will not discuss it any further as it is still good law.
III. THE INNOCENCE PROTECTION ACT OF 2004
This is the first federal death penalty reform to be enacted.[92] The Act seeks to ensure the fair administration of the death penalty and minimize the risk of executing innocent people. It amends the Federal criminal code to establish procedures for post-conviction DNA testing in Federal court.[93] It directs the court, upon a written motion by an individual under a sentence of imprisonment or death, to order DNA testing of specific evidence if certain situations are met.[94] It also sets forth provisions regarding notice to the Government, an order to preserve specific evidence, and appointment of counsel. Also, it requires the court to direct that any DNA testing ordered be carried out by the FBI, with an exception, directs that the costs of such testing be paid by the applicant unless the applicant is indigent, and sets time limitations for such testing in capital cases.[95]
The provisions of this act were not reauthorized under The Debbie Smith Reauthorization Act of 2008. This act was the most prominent as it relates to the rights of the accused in post-conviction exoneration cases because it specifically addressed the acquisition, use, and formalities needed to introduce DNA evidence for a post-conviction exoneration.[96]
IV. SCOTT CAMPBELL, STEPHANIE ROPER, WENDY PRESTON, LOUARNA GILLIS, AND NILA LYNN CRIME VICTIMS’ RIGHTS ACT.
This collateral Act amends the Federal criminal code to grant crime victims the right: (1) to be reasonably protected from the accused; (2) to reasonable, accurate, and timely notice of any public court proceeding or any parole proceeding involving the crime or of any release or escape of the accused; (3) to not be excluded from any such proceeding, unless the court determines that the victim’s testimony would be materially altered if the victim heard other testimony at that proceeding; (4) to be reasonably heard at any public proceeding in district court involving release, plea, sentencing, or any parole proceeding; (5) to confer with the Government attorney in the case; (6) to full and timely restitution as provided by law; (7) to proceedings free from unreasonably delay; and (8) to be treated with fairness and respect.[97]
It directs (1) the court to ensure that a victim is afforded these rights; and (2) officers and employees of Federal agencies engaged in the detection, investigation, or prosecution of crime to see that victims are notified of, and accorded, these rights. Further, it limits the circumstances under which a victim may make a motion to reopen a plea or sentence.[98] The Act also authorized the Director of the Office for Victims of Crime to make grants to: (1) develop, establish, and maintain programs for the enforcement of victims’ rights; and (2) develop and implement state-of-the-art systems for notifying victims of important dates and developments relating to criminal proceedings.[99]
This Act was also not reauthorized by The Debbie Smith Reauthorization Act of 2008. I don’t discuss this Act in its entirety as I am focusing on the rights of the accused in criminal trials, not the victims.
2. Shortcomings of the Justice For All Act of 2004
Rather than individually discuss the shortcomings of this Act as they relate to the collateral acts, I discuss the shortcomings of the Act as a whole. In addition, because The Debbie Smith Act of 2004 and the DNA Sexual Assault Justice Act of 2004 were reauthorized by The Debbie Smith Reauthorization Act of 2008[100], I only discuss the shortcomings of The Innocence Protection Act of 2004 and The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, And Nila Lynn Crime Victims’ Rights Act.
I. THE INNOCENCE PROTECTION ACT OF 2004
The only shortcoming I address in regards to this Act is the legislature’s failure to reauthorize the provisions of this Act. This Act significantly solidified the rights of the accused by addressing the use of DNA evidence in post-conviction exoneration cases. This Act was very through in outlining the process, acquisition, preservation, and use of DNA evidence in post-conviction cases. It doesn’t make sense that the legislature would only reauthorize 2/4 of these collateral acts. If anything they should have reauthorized all of the collateral acts with the exception of The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, And Nila Lynn Crime Victims’ Rights Act because the latter, was the only Act not formulated specifically in the realm of the use of DNA evidence in criminal trials as it relates to the rights of the accused.
II. THE SCOTT CAMPBELL, STEPHANIE ROPER, WENDY PRESTON, LOUARNA GILLIS, AND NILA LYNN CRIME VICTIMS’ RIGHTS ACT
With regard to this Act, it was a positive move for the legislature to refuse to enact the provisions of this Act because it only addressed the needs and rights of victims in criminal cases. It unfairly prejudiced the criminal defendant. Under this Act, a criminal defendant held fewer rights because the “rights of crime victims” were deemed to be of more importance.[101] In fact, the Act provides that, “a person accused of the crime may not obtain any form of relief under this chapter.”[102] This inclusion in the Act made it so that any criminal defendant who was claimed to have violated one of the many “crime victim’s rights” had no way of defending himself against such an accusation.
The Act further provided for Federal grants to aid in the enforcement of these “crime victim rights.”[103] Essentially, the grants would serve the purpose of providing money to solidify the rights of victims in criminal cases. There are already several safeguards in effect to solidify a victim’s rights in a criminal proceeding. This Act was unnecessary and enacted on unfounded principles as it relates to the rights of the accused in a criminal proceeding. A failure to consider the rights of the accused in criminal trials in close connection with the rights of victims in criminal trials, could suggest a violation of the 14th amendment equal protection clause.[104]
C. Actual Amendment
1. Content
AMENDMENT “D”
ARTICLE 1: SOLDIFYING THE RIGHTS OF THE ACCUSED
SECTION 1: USE OF DNA EVIDENCE IN CRIMINAL TRIALS
CLAUSE 1: IN GENERAL
(A) DNA evidence shall be used in any and all criminal cases where the DNA evidence has a probative value that is substantially outweighed by one of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.[105]
(B) Requests for use of the DNA evidence shall be under oath and by motion. The motion shall include[106]:
(1) a statement of the facts relied upon in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained;
(2) a statement that subsequent scientific developments in DNA testing techniques likely would produce a definitive result establishing that the movant is not the person who committed the crime;
(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was is being charged, or a statement how the DNA testing will mitigate the charge received by the movant for that crime;
(4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either acquit the defendant or mitigate the charges that the movant is being accused;
(5) a statement of any other facts relevant to the motion; and
(6) a certificate that a copy of the motion has been served on the prosecuting authority.
(C) The court shall make the following findings when ruling on the motion:
(1) Whether it has been shown that physical evidence that may contain DNA exists.
(2) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing.
(3) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser charge if the DNA evidence had been admitted at trial.
(D) Upon Conducting A Finding On The Court’s Ruling:
(1) If the court orders DNA testing of the physical evidence, the cost of the testing may be assessed against the movant, unless the movant is indigent. If the movant is indigent, the state shall bear the cost of the DNA testing ordered by the court.
(2) The court-ordered DNA testing shall be ordered to be conducted by National Uniform DNA Database.[107]
(3) The results of the DNA testing ordered by the court shall be provided in writing to the court, the movant, and the prosecuting authority.
(E) Time limitation. There is no time limitation on when the motion shall be filed. It must only be filed before the judgment and sentence in the case becomes final.[108]
(E) Rehearing. The movant may file a motion for rehearing of any order denying relief within 20 days after service of the order denying relief. The time for filing an appeal shall be tolled until an order on the motion for rehearing has been entered. The movant shall not be able to utilize this option if they are in violation of any of this amendment’s provisions.
(F) Appeal. An appeal may be taken by any adversely affected party within 60 days from the date the order on the motion is rendered. All orders denying relief must include a statement that the movant has the right to appeal within 60 days after the order denying relief is rendered.
(G) DEFINITIONS:
(1) The term “DNA evidence” shall be construed to mean anything that may be collected as a “DNA sample”
(2) The term “DNA sample” shall be construed to mean a tissue, fluid, or other bodily sample of an individual on which a “DNA analysis” can be carried out.
(3) The term “DNA analysis” shall be construed to mean analysis of the deoxyribonucleic acid (DNA) identification information in a bodily sample.
CLAUSE 2: POST-CONVICTION EXONERATION CASES
(A) DNA evidence shall be used in all post-conviction criminal cases where the DNA evidence has a probative value that is substantially outweighed by one of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
(B) Requests for use of the DNA evidence in post-conviction cases shall be under oath and by motion. The motion shall include:
(1) a statement of the facts relied upon in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained;
(2) a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result establishing that the movant is not the person who committed the crime;
(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime;
(4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received;
(5) a statement of any other facts relevant to the motion; and
(6) a certificate that a copy of the motion has been served on the prosecuting authority.
(C) The court shall make the following findings when ruling on the motion:
(1) Whether it has been shown that physical evidence that may contain DNA still exists.
(2) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing.
(3) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.
(D) Upon Conducting A Finding On The Court’s Ruling:
(1) If the court orders DNA testing of the physical evidence, the cost of the testing may be assessed against the State. If the movant is indigent the State shall also bear the cost of the DNA testing ordered by the court.
(2) The court-ordered DNA testing shall be ordered to be conducted by the National Uniform DNA Database.[109]
(3) The results of the DNA testing ordered by the court shall be provided in writing to the court, the movant, and the prosecuting authority.
(E) Time limitation. There is no time limitation on when the motion shall be filed. It must only be filed after the judgment and sentence in the case becomes final.[110]
(E) Rehearing. The movant may file a motion for rehearing of any order denying relief within 25 days after service of the order denying relief. The time for filing an appeal shall be tolled until an order on the motion for rehearing has been entered. The movant shall not be able to utilize this option if they are in violation of any of this amendment’s provisions.
(F) Appeal. An appeal may be taken by any adversely affected party within 30 days from the date the order on the motion is rendered. All orders denying relief must include a statement that the movant has the right to appeal within 60 days after the order denying relief is rendered.
(G) DEFINITIONS:
(1) The term “DNA evidence” shall be construed to mean anything that may be collected as a “DNA sample”
(2) The term “DNA sample” shall be construed to mean a tissue, fluid, or other bodily sample of an individual on which a “DNA analysis” can be carried out.
(3) The term “DNA analysis” shall be construed to mean analysis of the deoxyribonucleic acid (DNA) identification information in a bodily sample.
CLAUSE 3: VIOLATIONS
(A) IN GENERAL
(1) BY THE STATE:
(A) Failure of the State to follow the provisions of this rule shall result in a new trial or resentencing in favor of the party seeking the use of DNA evidence in a criminal trial. At the new trial or resentencing, the state shall allow any party (not just the moving party) to introduce DNA evidence tending to show that it is more probable than not that that party did or did not commit an alleged offense. In addition, the State shall bear the costs of the DNA testing under any and all circumstances.
(B) Failure to follow these provisions is a direct violation of Federal Law. The State’s failure to adhere to these provisions shall be:
(1) fined up to $5,000[111]; and
(2) subject to a civil action for enforcement of the fine; incurring all costs in the process of the action until a proper resolution has been achieved.
(2) BY THE PARTY UTILIZING THIS RIGHT:
(A) Failure of any party to utilize the right to the use of DNA evidence in a criminal trial in violation of one of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence, will result in a dismissal of the movant party’s action, with prejudice.
(1) In addition, the provisions of this subsection shall be applicable to informants utilized by the State for purposes of obtaining testimony for use at a criminal trial.[112]
(2) A violation of this right by virtue of a State acquired informant shall subject that individual to the punishments incurred in violating this subsection as if they were a party to the action themselves.
(B) Failure to follow these provisions is a direct violation of Federal Law. An individual’s failure to adhere to these provisions shall be:
(1) Guilty of a Class C misdemeanor[113];
(2) punished in accordance with Title 18; and
(3) Subject to fines up to $7,000.
(B) POST-CONVICTION EXONERATION CASES
(1) BY THE STATE:
(A) Failure of the State to follow the provisions of this rule shall result in a complete acquittal of the party seeking the use of DNA evidence in a post-conviction criminal trial. The action shall be dismissed with prejudice.
(B) Failure to follow these provisions is a direct violation of Federal Law. The State’s failure to adhere to these provisions shall be:
(1) fined up to $10,000; and
(2) subject to a civil action for enforcement of the fine; incurring all costs in the process of the action until a proper resolution has been achieved.
(2) BY THE PARTY UTILIZING THIS RIGHT:
(A) Failure of any post-conviction party to utilize the right to the use of DNA evidence in a criminal trial in violation of one of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence, will result in a dismissal of the movant party’s action, with prejudice.
(1) In addition, the provisions of this subsection shall be applicable to informants utilized by the State for purposes of obtaining testimony for use at a post-conviction trial.
(B) A violation of this right is also construed as a waiver of post-conviction rights to access DNA evidence for use in a criminal trial.
(1) A violation of this right by virtue of a State acquired informant shall subject that individual to the punishments incurred in violating this subsection as if they were a party to the action.
(C) Further, a violation under this amendment constitutes an exhaustion of all resources available to a post-conviction party. A violation under this article prevents the moving party from filing a habeas corpus petition pursuant to §2254 or a civil rights action pursuant to a §1983 claim.[114]
(D) Failure to follow these provisions is a direct violation of Federal Law. An individual’s failure to adhere to these provisions shall be:
(1) Guilty of a Class A misdemeanor[115];
(2) punished in accordance with Title 18; and
(3) subject to fines up to $15,000.
SECTION 2: APPLICABILITY
CLAUSE 1: QUALIFYING OFFENSES
(A) OFFENSES THAT FALL UNDER THE PROVISIONS OF THIS AMENDMENT ARE:
(1) Any felony;
(2) Any offense under chapter 109A of Title 18;[116]
(3) Any crime of violence (as the term is defined in section 16 of Title 18)[117]
(4) Any attempt or conspiracy to commit any of the offenses in paragraphs (1) through (3).
(B) OTHER PURPOSES
(1) The collection of DNA evidence may be used in non-criminal related matters including but not limited to:
(A) acquisition of DNA evidence for use of exclusionary purposes;[118]
(B) acquisition of DNA evidence for use in a missing persons database;[119]
(C) acquisition of DNA evidence for use in familial matters;[120]
(D) acquisition of DNA evidence for recording keeping purposes;[121] and
(E) acquisition of DNA evidence for non-criminal purposes by a party showing good cause for the need of the collection of the data.[122]
CLAUSE 2: RELATION TO CURRENT STATUTORY LAWS
(A) IN GENERAL
(1) The provisions of this amendment shall supersede all statutory law on the subject of DNA evidence in criminal cases only when utilization of statutory law fails to provide for a uniform and just decision-making process for deciding cases of this nature.
(B) IN POST-CONVICTION EXONERATION CASES
(1) The provisions of this amendment shall supersede any and all statutory law on the subject of DNA evidence as it relates to post-conviction exonerations in criminal cases.
(2) EXCEPTION:
The only exception to this provision is that this amendment will not supersede statutory law on the subject of DNA evidence as it relates to post-conviction exonerations in criminal cases when a case is currently in the final decision process of a post-conviction action.[123]
SECTION 3: DNA ANALYSIS
CLAUSE 1: FORMS OF ACCEPTABLE FORENSIC SCIENCE
(A) NUCLEAR DNA EVIDENCE TESTING
PERMISSIBLE COLLECTION SOURCES:
(1) BIOLOGICAL EVIDENCE[124]
Including but not limited to:
(1) semen samples
(2) blood samples
(3) saliva samples
(4) tissue samples
(a) Where possible, Nuclear DNA evidence shall be utilized by criminal courts as the predominate source of evidence to collect for use in criminal trials.
(b) ONLY in instances where insufficient nuclear DNA is present for STR testing, or if the existing nuclear DNA is degraded, shall Mitochondrial DNA evidence testing be employed.
(2) DEFINITIONS:
(1) “Nuclear DNA evidence”[125] means this type of DNA is found in the nucleus of the cell and makes up the 46 chromosomes people typically think of as the genetic code. Every person inherits half of his nuclear DNA from the mother and half from the father. Nuclear DNA includes bodily “excretions.”
(a) Is also one of the two primary types of DNA tests are conducted in U.S. forensic laboratories. (The other type being mitochondrial DNA. (mtDNA))
(2) “Biological evidence”[126] means biological evidence which is provided by specimens of a biological origin that are available in a forensic investigation. Such specimens may be found at the scene of a crime or on a person, clothing, or weapon. Some—for example, pet hairs, insects, seeds, or other botanical remnants—come from the crime scene or from an environment through which a victim or suspect has recently traversed. Other biological evidence comes from specimens obtained directly from the victim or suspect, such as blood, semen, saliva, vaginal secretions, sweat, epithelial cells, vomitus, feces, urine, hair, tissue, bones, and microbiological and viral agents.
(3) “STR testing”[127] shall mean STR or (short tandem repeats); a DNA testing method that uses highly polymorphic regions that have short repeated sequences of DNA (the most common is 4 bases repeated, but there are other lengths in use, including 3 and 5 bases). Because unrelated people almost certainly have different numbers of repeat units, STRs can be used to discriminate between unrelated individuals.
(B) MITOCHONDRIAL DNA EVIDENCE TESTING
PERMISSIBLE COLLECTION SOURCES:
(1) BIOLOGICAL EVIDENCE
Including but not limited to:
(1) semen samples
(2) blood samples
(3) saliva samples
(4) tissue samples
(5) hair samples[128]
(6) teeth samples[129]
(8) bone samples
(2) TRACE EVIDENCE:
Including but not limited to:
(1) hair samples
(2) fiber samples
(3) soil samples
(4) wood samples
(5) pollen samples
(6) gunshot residue samples
(a) Where possible, Mitochondrial DNA evidence shall be utilized by criminal courts as a secondary source of evidence to collect for use in criminal trials because it is much less discriminating than nuclear DNA analysis.
(b) Mitochondrial DNA evidence testing shall be employed ONLY in instances where insufficient nuclear DNA is present for STR testing, or if the existing nuclear DNA is degraded, shall Mitochondrial DNA evidence testing be employed.
(c) In the case of a hair, tooth, or bone sample, Mitochondrial DNA evidence testing shall be the ONLY testing method employed on such samples of biological evidence.
(d) Trace evidence is a source of possible collection that is ONLY applicable to the Mitochondrial DNA evidence testing approach.
(2) DEFINITIONS:
(1) “Mitochondrial DNA Evidence”[130] shall mean DNA that is found in the mitochondria, the energy generating cell organelles. Mitochondria have their own complete genetic code unrelated to nuclear DNA. Mitochondrial DNA is only inherited from the mother.
(2) “Biological evidence”[131] means biological evidence is provided by specimens of a biological origin that are available in a forensic investigation. Such specimens may be found at the scene of a crime or on a person, clothing, or weapon. Some—for example, pet hairs, insects, seeds, or other botanical remnants—come from the crime scene or from an environment through which a victim or suspect has recently traversed. Other biological evidence comes from specimens obtained directly from the victim or suspect, such as blood, semen, saliva, vaginal secretions, sweat, epithelial cells, vomitus, feces, urine, hair, tissue, bones, and microbiological and viral agents.
(3) “Trace evidence”[132] shall mean evidence that may be transferred between people, objects or the environment during a crime. It is a way investigators can potentially link a suspect and a victim to a mutual location.
(4) “STR testing” shall mean STR or (short tandem repeats); a DNA testing method that uses highly polymorphic regions that have short repeated sequences of DNA (the most common is 4 bases repeated, but there are other lengths in use, including 3 and 5 bases). Because unrelated people almost certainly have different numbers of repeat units, STRs can be used to discriminate between unrelated individuals.
(C) ACCEPTABLE FORMS OF FORENSIC SCIENCE FOR POSSIBLE USE IN CONJUNCTION WITH DNA ANALYSIS[133]
(1) FORENSIC METHODS FAVORABLE TO NUCLEAR DNA TESTING:
(1) serology;
(2) forensic pathology;
(3) toxicology;
(4) chemical analysis;
(5) digital and multimedia forensics;[134]
(2) FORENSIC METHODS FAVORABLE TO MITOCHONDRIAL DNA EVIDENCE TESTING:
(1) forensic Anthropology;
(2) forensic Dentistry
(3) DEFINITIONS:
(1) FORENSIC METHODS FAVORABLE TO NUCLEAR DNA TESTING:
(1) “serology”[135] shall mean the scientific study of plasma serum and other bodily fluids. In practice, the term usually refers to the diagnostic identification of antibodies in the serum. Such antibodies are typically formed in response to an infection or to one’s own proteins.
(a) RELEVANCE IN CRIMINAL TRIALS:
It would be relevant to allow this sort of testing to occur in a criminal trial because it would allow an assailant who suffers from an ailment or illness to be easily identified for purposes of the criminal proceeding.
(2) “forensic pathology”[136] shall mean that it is a sub-specialty of pathology that focuses on determining the cause of death by examining a corpse. Examination of corpses are usually done by the coroner or medical examiner.
(a) RELEVANCE IN CRIMINAL TRIALS:
It would be relevant to allow this type of forensic science in a criminal trial because it can be used to show how a victim died. An individual being charged with murder, manslaughter, etc. would need this type of analysis to prove they did not cause the death of the person
(3) “toxicology”[137] shall mean it is a branch of biology, chemistry, and medicine (more specifically pharmacology) concerned with the study of the adverse effects of chemicals on living organisms. It is the study of symptoms, mechanisms, treatments and detection of poisoning, especially the poisoning of people.
(a) RELEVANCE IN CRIMINAL TRIALS:
This type of forensic evidence is relevant for use in a criminal trial because it can be used to show the blood-alcohol content (BAC) of an individual at the time of an event. This could be used to show that a defendant was drunk when they murder or raped someone. It’s use, in collection with other types of forensic evidence is relevant.
(4) “chemical analysis”[138] shall mean the act of decomposing a substance into its constituent elements or an investigation of the component parts of a whole and their relations in making up the whole with relation to DNA evidence and other types of forensic evidence for use in a criminal trial.
(a) RELEVANCE IN CRIMINAL TRIALS:
Chemical analysis triggers a whole line of possible uses in a criminal trial. It can be used to match the chemicals of bullets, used to identify a controlled substance (if drug use is an issue at trial), and can be used to identify fibers tending to show it is more probable than not, that an individual committed a given crime or offense
(5) “digital and multimedia forensics”[139] shall mean evidence of information stored or transmitted in binary form that may be relied on in court. It can be found on a computer hard drive, a mobile phone, a personal digital assistant (PDA), a CD, and a flash card in a digital camera, among other places.
(a) RELEVANCE IN CRIMINAL TRIALS:
This is relevant to include in this amendment because some of the qualifying offenses under this amendment involve sexual abuse. Where sexual abuse of a minor is an issue in question, digital evidence is relevant as a potential vehicle of proving a defendant’s guilt.
(2) FORENSIC METHODS FAVORABLE TO MITOCHONDRIAL DNA EVIDENCE TESTING:
(1) “ Forensic Anthropology”[140] shall mean a field of forensic study where analysts examine “skeletonized” or otherwise compromised human remains to assess age, gender, height and ancestry; identify injuries; and estimate the time since death.
(a) RELEVANCE IN CRIMINAL TRIALS:
Examination of these remains may give information that can assist investigators in identifying a victim. This could be relevant to proving innocence in a wrongful conviction case. Illustrating how post-conviction exonerations can be achieved through the use of DNA evidence used in conjunction with another field of forensic science.
(2) “Forensic Dentistry”[141] shall mean analysts who examine the development, anatomy and any restorative dental corrections of the teeth, such as fillings, to make a comparative identification of a person.
(a) RELEVANCE IN CRIMINAL TRIALS:
Bones and teeth are the most durable parts of the human body and may be the only recognizable remains in cases of decomposition, fire scenes or mass fatalities, and can be used to identify an individual in such cases. In a wrongful conviction case, evidence of this sort could be tantamount in proving one’s innocence.
CLAUSE 2: UNIFORM SYSTEM OF ANALYSIS
(A) UNIFORM SYSTEM OF TRAINING
(1) There shall be only one uniform system of training that all DNA analysts must adhere to nationwide. This provision applies to any current or future analysts, requiring that the analyst shall take the necessary national training course in order to become “legally certified” as an evidence analyst.
(a) Any analyst who fails to adhere to the provisions of this amendment and fails to take the necessary national training program shall be deemed incompetent for their employment position and will be denied further employment responsibilities at the lab or medical facility they work at until they have complied with the provisions of this amendment.
(1) Any analyses completed during the time where an analyst is not “legally certified” shall be deemed null and void.
(2) If the analyst’s test results are being used in a criminal trial or other legal proceeding at the time this amendment is ratified, that analyst and all corresponding evidence relating to that analyst’s data shall be discarded and the trial temporarily suspended until the analyst has the opportunity to complete the necessary national training.
(b) A complete failure and disregard to follow the provisions of this amendment, shall result in a suspension of an analyst’s current job position until the necessary national training course has been successfully completed and will halt any attempt at solidifying future employment positions relating to DNA testing and analysis.
(1) An analyst that refuses to take the necessary national training program and wishes to hold their current analyst position, shall be held personally liable for any and all mistakes arising out of their past and future analyses, whether the discrepancy in question be their fault or not.
(2) Further, a violation of this provision shall constitute as a Class A misdemeanor,[142] punishable accordingly.
(2) The National Uniform Training program is to be the equivalent of a standardized test compiled by forensic evidence scholars, judges, lawyers, government employees, and any other member of the community with extensive knowledge in the realm of forensic science. Those called on to create the inner workings of the test must first identify the causes of poor forensic science use and then formulate a test that seeks to adequately correct and address the short comings of the current training system.
(3) PURPOSE:
The purpose of this provision is to provide a uniform system of training for any and all forensic evidence analysts to abide by. A uniform system of training would ensure that all future forensic evidence tests are completed using all the same standards and completed by analysts who all have the same training for their job positions. By requiring that all forensic evidence analysts complete the same training process, it ensures that testing results are valid, accurate, and uniform.
When the testing process of forensic evidence occurs through a uniform procedure, you can assume the accuracy of the evidence as it will be used in a legal proceeding because if everyone (in the forensic evidence analyst field) has the same level of training, it makes it difficult for a defendant to challenge the precision of the analyst’s data or testimony given in regards to the data.
Further, this provision seeks to save time and cost to the courts by making it more difficult for a party in an action to question the results of a forensic evidence test analysis based on inaccurate collection, testing, or preservation arguments.
Courts will no longer have to require re-testing of forensic evidence in cases where the analyst’s competence is put in question because the effect of doing so would question the competence of all analysts in the profession, a generalization a court will never make.
DEFINITIONS:
(1) “Legally certified” as it is considered in this amendment, is a term created under the provisions of this amendment that provides that in order for an analyst to testify in a criminal trial or participate in any other legal proceeding, requires that the analyst successfully complete the new nation “uniform training program”.
(2) “Uniform training program” is a scientific and legal program for becoming certified or re-certified as a lab analyst in contemporary times at the national level. It provides a uniform program to be utilized nation-wide for training of all lab analysts. The program also includes a new course that specifically addresses the process of collection, preservation, and analysis of evidence to be used in criminal trials or any other legal proceeding requiring the analysis of DNA. It is the equivalent of a standardized test, so as to ensure the uniformity, validity, reliability, and timely analysis of forensic evidence.
(B) NATIONAL UNIFORM DNA DATABASE
(1) There shall be one National Uniform DNA Database used to replace the current state and federal DNA databases currently in existence. The National Uniform DNA Database shall combine the Combined DNA Index System (CODIS); National DNA Index System (NDIS); and the Integrated Automated Fingerprint Identification System (IAFIS), into one “National Uniform DNA Database” (NUDD).
(2) The National Uniform DNA Database (NUDD)
The NUDD would seek to combine the information contained in the CODIS, NDIS, and IAFIS. The NUDD shall contain a uniform system of codifying information for use in the database by subject.
In addition, the NUDD would allow for the submittal of non-criminal related DNA to assist individuals acquire DNA evidence for use for exclusionary purposes, for use in a missing persons database; for use in familial matters; for recording keeping purposes; and for non-criminal purposes by a party showing good cause for the need of the collection of the data.
The construction of the NUDD database would look similar to the following:
| Criminal Matters (with each of its respective “sub-tabs”) | Non-Criminal Matters (with each of its respective “sub-tabs”) |
| Data currently in the CODIS would fall under this section. | Data for DNA as it relates to missing persons would fall under this section |
| Data currently in the NDIS would fall under this section. | Data for DNA as it relates to exclusionary purposes for non-criminal matters shall be included within this section with no prior or subsequent requirements for admittance. |
| Data currently in the IAFIS would fall under this section. | Data for DNA as it relates familial matters. (for identification of possible hereditary diseases, lost family members, custodial issues, etc. ) |
| Exclusionary DNA data would be allowed as long as the individual seeking the exclusion is not part of a pending or reasonably foreseeable litigation. | Data for DNA as it relates to record keeping. (i.e. record of any and all DNA related data on any given person) to allow for the easy review and removal of certain types of DNA classifications and information. |
| Data for DNA as it relates to record keeping. (i.e. record of any and all DNA related data on any given person) to allow for the easy review and removal of certain types of DNA classifications and information. | Data for DNA collected for non-criminal purposes by reason of a party’s showing of good cause for the need of the collection of the data. This would act as a “catch all” sub-tab that all other non-criminal related DNA matters could fall under. |
| The current names of the databases would remain intact and the only difference as it relates to the NUDD would be that the CODIS, NDIS, IAFIS would all be part of the same database, each with their own respective “sub-tabs” that are easily found and reviewable. |
(3) PURPOSE:
The purpose of creating the NUDD is to eliminate discrepancies that arise in the current DNA related systems. If there was only a single database for both the federal government and states to utilize, the chances of error arising in either one of those systems currently enacted, is relatively low.
The NUDD would eliminate a state’s need to spend additional time and money used to consult multiple databases utilized in criminal and other legal proceedings.
The NUDD would also eliminate irrelevant or outdated results currently present within the CODIS, NDIS, and IAFIS because the NUDD would have a system of codifying matters by subject within a single database, allowing for easier access (for both the federal government and state governments) and constant surveillance of the data being entered into the NUDD to ensure its accuracy.
CLAUSE 3: COLLECTION AND PRESERVATION
(1) COLLECTION
(A) IN GENERAL
Collection of DNA samples must be conducted in a timely and reasonable manner consistent with the 6th amendment right to a speedy trial.
Collection of DNA samples must be conducted in the presence of the DNA lab analyst who is to conduct the test to ensure proper collection of viable DNA and in the presence of a party who does not have an interest in the action.
Uninterested parties may consist of any person within the state or locality as long as that person is not a member of the state or local police department or other affiliated state agency.
(B) IN POST-CONVICTION DNA EVIDENCE CASES
Collection of DNA samples must be conducted in a timely and reasonable manner consistent with the 6th amendment right to a speedy trial.
In addition, collection of the DNA sample must occur at an accused’s’ first request for DNA analysis. No court shall deny this request or delay the process for making such a request. The process for obtaining a DNA sample shall be reasonable.
Collection of DNA samples must be conducted in the presence of the DNA lab analyst who is to conduct the test to ensure proper collection of viable DNA and in the presence of a party who does not have an interest in the action.
Uninterested parties may consist of any person within the state or locality as long as that person is not a member of the state or local police department or other affiliated state agency.
(2) PRESERVATION
(A) IN GENERAL
In all criminal trials, the court maintains a duty to adequately preserve the DNA evidence from any case. There does not have to be a foreseeable use for the DNA evidence in future litigations for the DNA sample to be preserved.
The DNA sample shall be stored in a dry place and in a facility separate from that of the state or local police department. The ideal location for the DNA sample is within the facility that conducted the testing and analysis of the DNA sample.
The DNA lab testing facility shall ensure that there is no attempt from outside or inside sources to contaminate the DNA sample and they must also ensure all of the different types of possible DNA samples are stored under the proper conditions to keep the validity of the DNA sample intact.
(B) IN POST-CONVICTION DNA CASES
In all post-conviction criminal trials, the court maintains a duty to adequately preserve the DNA evidence from any case. A failure to do so, at the fault of anyone other than the accused, shall result in a full acquittal of the accused and an expunged record with regard to the crimes charged.
The DNA sample shall be stored in a dry place and in a facility separate from that of the state or local police department. The sample shall be preserved so as to last as long as scientifically possible. The ideal location for the DNA sample is within the facility that conducted the testing and analysis of the DNA sample.
The DNA lab testing facility shall ensure that there is no attempt from outside or inside sources to contaminate the DNA sample and they must also ensure all of the different types of possible DNA samples are stored under the proper conditions to keep the validity of the DNA sample intact.
(3) SEPARATION OF FACILITIES
(A) IN GENERAL
There shall be a complete separation between the facilities conducting the DNA tests and analyses and the police departments within any given state that make use of these types of tests for criminal trials.
This section also applies to the FBI and shall be binding upon the agency unless circumstances arise allowing for the FBI’s interference in instances concerning national security.
(1) PURPOSE
The purpose of effectuating a complete separation between the DNA labs and testing facilities and the police departments within a given state is to avoid the possibility of unfair influence, inadequate test results and analyses, and to rid the criminal justice system of dishonest and unreliable members within both of the established realms of the police department and the labs and facilities that conduct these tests.
Further, a complete separation between the DNA labs and facilities and the state police departments ensures adequacy of test results and proper usage in a criminal trial. Issues arising from purposeful contamination and false test analyses would also be eliminated with this amendment.
SECTION 4: RELATION/APPLICABILITY TO OTHER BILL OF RIGHTS AMENDMENTS
Amendment “D” is not to be viewed separately from the established Amendments discussed below: it is to be view in accordance and connection with already established laws to further solidify the rights of the accused in criminal trials.
CLAUSE 1: THE 4TH AMENDMENT
Any provisions of this amendment with regard to the collection of DNA samples shall be in accordance with the 4th Amendment requirements and shall not violate the standards against unreasonable searches and seizures.
A collection of a DNA sample shall not constitute an unreasonable search and seizure unless improper methods were used to obtain the DNA sample.
Improper methods to obtain a DNA sample are those methods the police department or other state agency may use to gather a DNA sample without having probable cause to do so.
In addition, this amendment prevents local and state police departments from interfering in the collection and preservation process, so any means employed by the police department or similar state agency constitutes an improper collection method that would deem the DNA sample irrelevant and unusable in a criminal trial proceeding setting.
CLAUSE 2: THE 5TH AND 14TH AMENDMENT
The 5th and 14th Amendment ensures that individuals are guaranteed due process of law on both a state and federal level. The 14th Amendment goes a step further in ensuring equal protection of the laws.
This amendment would further the goals of the 5th and 14th amendment because DNA testing in criminal trials ensures that all individuals involved in such a case are afforded the same opportunities and results.
An individual would not be denied the right to DNA testing in a criminal trial based on their race, gender, sexual orientation, or any other type of prohibited classification.
DNA testing in criminal trials would become part of the due process an individual is afforded in criminal trial proceedings.
In effect, this amendment would broaden the scope of both the 5th and 14th Amendments.
CLAUSE 3: THE 6TH AMENDMENT
This amendment would not fully change the contents of the 6th Amendment.
Amendment “D” would only add text indicating that DNA testing in criminal trials should become a vital provision of the 6th Amendment, further solidifying the rights of the accused.
CLAUSE 4: THE 8TH AMENDMENT
Inclusion of Amendment “D” in the Constitution so as to be applicable in accordance with the 8th Amendment shall be construed so as to further the goals of the 8th Amendment. One of the goals of the 8th Amendment state that there shall be no “cruel and unusual punishment”.
Allowing for DNA testing in criminal trials furthers this goal because to deny an individual DNA testing that subsequently leads to a false and wrongful conviction, where an individual wrongfully spends years of their life in prison for a crime they did not commit, could be interpreted to constitute cruel and unusual punishment.
V. CONCLUSION
There has never been a light that has not cast a shadow. Darkness by its nature will always be entwined with good and now we must take the burden for what our criminal justice system has become. But, despite having to face this burden, I believe it is in our darkest hour that we find the brightest ray of hope. The same concept could be applied to the current condition of our criminal justice system with respect to DNA evidence and post-conviction criminal trials. Even though it seems as though our criminal justice system is at an all-time low, there is hope in the reforms I have proposed and discussed in this paper. Even the always finicky, Justice Scalia, affirmed our criminal justice system’s need for reform in the realm of DNA evidence and criminal trials.[143] I propose that reform comes in the form of a constitutional amendment allowing for the use of DNA evidence in all criminal trials where its probative value is substantially outweighed by its possible prejudicial effect. I don’t focus specifically on post-conviction exonerations in proposing the amendment because doing so doesn’t address the causes or prevent more wrongful convictions from occurring in the future.
Realistically, however, it is unlikely that our nation would aid in the process of producing and ratifying an amendment of such stature and complexion at this point in our history. Even if an entire amendment could not be formed around the subject of DNA evidence and its use in criminal trials, there is still hope. The reform I propose that would hold the greatest effect would be if there were a complete separation between state and local police departments and the DNA labs and testing facilities. Currently, many of the shortcomings of our criminal justice system would be addressed, or at least hindered, if there were a separation amongst these entities. Doing so would eliminate improper incentives and influence police departments currently hold in our criminal justice system.
To conclude, despite harboring high hopes for the future of our criminal justice system, before serious reform or even basic reform can occur, the current members of the criminal justice system must first admit that there is a problem and that they are the cause of the problem; a feat most are not willing to overcome.
[1] See, https://www.innocenceproject.org.
[2] id. (The use of DNA evidence has only been available since 1980!)
[3] I aim to delve into the specifics of the actual amendment proposal in a later section of this paper.
[4] Throughout the paper I refer to these causes as “shortcomings.”
[5] See, https://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx. (Last visited November 12, 2013.) (There has recently been a rapid influx of exonerations occurring. On November 7, 2013, there had been 1,230. In four days, 11 exonerations have occurred. )
[6] Id. (These numbers come from the National Registry of Exonerations (formed by a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.))
[7] Id. (The first exoneration through the use of DNA evidence occurred in 1989.)
[8] See, https://www.innocenceproject.org. (Last visted November 13, 2013.)
[9] See, Ronald Huff, Wrongful Convictions: The American Experience, at 108-109 (2004)
[10] Id. (This could infer a correlation between capital cases decided during that 23 year time span and the 311 post-conviction exoneration cases.)
[11] By “time” I am referring to a historical point in our nation’s history.
[12] I created my own statistics and data analysis from the 311 post-conviction exoneration cases that have occurred through the use of DNA evidence. My results are by no means conclusive, they are merely my interpretation of the data.
[13] This is the amount of money tax payers have spent in the past 24 years incarcerating innocent individuals.
[14] See, https://www.innocenceproject.org/know/After-Exoneration.php. (Last visited November 13, 2013.) (Almost every state has its own compensation law but there are still many states that do not have their own compensation laws.)
[15] See, Christian Henrichson & Ruth Delaney, The Price of Prisons: What Incarceration Costs Tax Payers, Vera Institute of Justice, at 1-23 ( January 2012.)
[16] See, https://www.innocenceproject.org/know/DNA Exoneree Case Profiles. (Last visited November 12, 2013.)
[17] Again, when I say “time” I’m referring to a historical reference of a time in our nation’s history
[18] See, https://www.judiciary.senate.gov/about/history/CivilRightsAct.cfm. (Last visited November 12, 2013.)
[19] See, https://www.innocenceproject.org/understand/The Causes of Wrongful Convictions. (Last visited November 12, 2013.) (The Innocence Project as well as other nationally acclaimed groups and scholars aimed at solidifying the rights of the accused have all identified a similar list of causes attributing to why wrongful convictions occur. The difference in my list and other lists that have been presented in the past is I argue that the misuse of the Federal Rules of Evidence is a significant contributing cause to wrongful convictions in our nation. I have not come across any other source that mentions this as a potential cause contributing to wrongful convictions so I will be basing that argument off of my own analysis of the data presented in evaluating the 311 post-convictions that have occurred through the use of DNA evidence.)
[20] It should be noted that each of the seven shortcomings I have identified are not conclusive. There are surely many other causes that contribute to the discrepancies within our criminal justice system. In addition, more than one of the shortcomings may be applicable in a given case.
[21] See, https://www.innocenceproject.org/understand/Eyewitness-Misidentification.php. (Last visited November 13, 2013.)
[22] See, https://www.innocenceproject.org/understand/Eyewitness-Misidentification.php. (Last visited November 13, 2013.)
[23] Id.
[24] Id.
[25] See, https://www.innocenceproject.org/understand/Eyewitness-Misidentification.php. (Last visited November 13, 2013.) ( He only ended up serving twelve years. )
[26] See, Jan Pudlow, Innocence Commission Explores Unreliable Eyewitnesses, 47 Fla. B. News. at 1-4 (2010). (Witnesses look at a lineup, pick a person who looks most like the perpetrator compared to others in the lineup, and assumes that must be him.)
[27] Many of these improprieties will be discussed and addressed further in Section IV of this paper.
[28] This is not to suggest that forensic scientists are not adequately trained to perform their duties in conducting DNA tests or other tests of the like. It is to suggest that many forensic scientists are not up to par with the interworking of our criminal justice system. As a result, lab analysts have not been informed or adequately trained to properly store evidence, to protect the sample once tests are in progress, or to protect the samples even after tests have been completed.
[29] My definition of misconduct includes creating false test results for the prosecution’s benefit, catching mistakes and failing to correct those mistakes, purposely misreading proper test results to inculpate an innocent defendant, and purposely failing to maintain the integrity and condition of the evidence so that it may not be tested again, or so that it will produce inconclusive results on purpose.
[30] See, https://www.innocenceproject.org/news/CauseViewstate4.php?state=il. (Last visited November 12, 2013. )
[31] In my opinion this shows extreme misconduct on the part of the lab analyst as well as the prosecutor. This also shows how the seven shortcomings work in conjunction with each other. In this case, there was a presence of improper use of forensic evidence and an overzealous prosecutor looking only to secure a conviction.
[32] This case was not an exoneration achieved through the use of DNA evidence but it is an extremely good example of the coerced confessions shortcoming and how it applies to other exoneration cases achieved through different means. This suggests a correlation between the seven shortcomings and the criminal justice system in that these shortcomings could potentially be applied generally to all criminal cases.
[33] See, https://www.innocenceproject.org/Content/George_Allen_Jr.php. (Last visited November 12, 2013.)
[34] See, https://www.innocenceproject.org/Content/George_Allen_Jr.php. (Last visited November 12, 2013.)
[35] Id.
[36] Id.
[37] Id.
[38] To do otherwise would and did constitute as false imprisonment.
[39] This observance is clearly not applicable in just this case, but rather creates a broad image as to the potential abuses occurring within our criminal justice system nationwide.
[40] Most often prosecutors are elected. Their positions are not secured by merely doing the right thing and deciding cases properly. (i.e. based on merits and evidence presented): their positions are essentially secured based on the number of convictions that can acquire within a given term.
[41] This case is another example of how more than one shortcoming can be present in a given case.
[42] See, https://www.innocenceproject.org/Content/Derrick_Williams.php. (Last visited November 12, 2013.)
[43] See, https://www.innocenceproject.org/Content/Derrick_Williams.php. (Last visited November 12, 2013.)
[44] See, https://www.innocenceproject.org/Content/Derrick_Williams.php. (Last visited November 12, 2013.)
[45] Id. (Also, officials violated Florida state law which clarifies that all physical evidence must be preserved until the inmate has served the term of his sentence.)
See, Art I, §9, Fla. Const.3
[46] Even after all the evidence in Williams’ case was destroyed and it was determined his due process rights were violated, prosecutors still announced their intent to appeal the decision. Thankfully for Williams the state decided to drop his case. This just goes to show how relentless prosecutors can be in trying to secure convictions.
[47] This section is based solely on my opinion not on information I’ve gathered from other sources. It is merely observations I’ve concluded through my analysis of the 311 post-conviction exonerations achieved through the use of DNA evidence. Therefore, I will not cite to any other source or mention case law because I am attempting to further build the foundation for my constitutional proposal. (discussed in its entirety in Section IV).
[48] See, Fed. R. Evid. 702. (The most common reason why informants testify is to possibly obtain a lesser sentence, it is very rare for a monetary incentive to be present in such a case because to provide a monetary incentive for an informant to testify would be a direct violation of the Federal Rules of Evidence unless the informant was testifying as an expert witness.)
[49] Despite the fact that the Federal Rules of Evidence allow for this type of testimony in some instances, I personally would argue that this form of testimony should not be allowed in criminal trials because the risk of prejudice far outweighs its probative value.
[50] I would argue that the potential prejudicial effect of allowing informants to testify far outweighs its probative value because although counsel may test the credibility of an informant witness, there’s no guarantee that the informant is truly telling the truth.
[51] See, https://www.innocenceproject.org/understand/Bad-Lawyering.php. (Last visited November 13, 2013.)
[52] See, https://www.innocenceproject.org/Content/Jimmy_Ray_Bromgard.php. (Last visited November 13, 2013.)
[53] Id.
[54] Id.
[55] Id.
[56] Id.
[57] Id.
[58] See, https://www.innocenceproject.org/Content/Jimmy_Ray_Bromgard.php. (Last visited November 13, 2013.)
[59] Fed. R. Evid. 703. (Provides: “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.)
[60] Professor Daniel J. Capra, Federal Rules of Evidence 1 (2013-2014 Edition).
[61] Fed. R. Evid. 102.
[62] 509 U.S. 579 (1993).
[63] Fed. R. Evid. 702. (Provides: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”)
[64]See, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). (Previously the standard was, “While the courts will go a long way in admitting expert testimony, deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”)
[65] See, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93, (1993) (“Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate.”)
[66] U.S. CONST. amend. VI (provides that that accused shall enjoy a right to be confronted with the witnesses against him.)
[67] 541 U.S. 36 (2004). (In Crawford, The Supreme Court held that the admission of testimonial hearsay invokes the Confrontation Clause. They also determined that the Confrontation Clause is applicable to both in-court statements and out-of-court statements. The court determined that testimonial statements cannot be used against a defendant who is not given the opportunity to confront the witness giving the statement. “Testimony” as defined by the court, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. In addition, the court identifies, various formulations of this core class of “testimonial” statements: “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” ) Id. at 61-62, 68-69
[68] 129 S. Ct. 2527, (2009).
[69] Id. at 2531-32.
[70] Id. (The Melendez-Diaz Court characterized the lab reports at issue in the case as affidavits and noted that the Court’s decision in Crawford expressly included affidavits in the category of “testimonial statements” invoking the Confrontation Clause)
[71] Id. at 2543. (noting that, in his opinion, the Confrontation Clause is implicated in connection with extrajudicial statements only if they are contained in “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.”)
[72] Id. at 2527, 2536-38.
[73] Id. at 2536-38.
[74] Although, cross-examination of scientific expert testimony alone, is not enough to address the other shortcomings that currently plague our criminal justice system.
[75] See, https://www.archives.gov/exhibits/treasures_of_congress/text/page3_text.html (Last visited November 20, 2013).
[76] Id.
[77] U.S. CONST. art. V.
[78] See, https://www.archives.gov/exhibits/treasures_of_congress/text/page3_text.html (Last visited November 20, 2013).
[79] Id. (One needs approval from 38 of 50 states in order to effectively propose and ratify an amendment to the United States Constitution.)
[80] See, https://www.innocenceproject.org/fix/. (Last visited November 20, 2013).
[81] Because as of right now, it is clear we are nowhere near the level of support needed to constitute a 3/4ths majority.
[82] See, https://www.innocenceproject.org/news/LawView1.php (Last visited November 20, 2013). (Even some of those laws are inadequate.)
[83]Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260. (Notice that this Act essentially addressed all of the shortcomings I have previously mentioned and proposes a very formidable solution.)
[84] Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260. (I will only briefly touch on what the collateral acts are and what they set out to achieve as the purpose of this paper is not to analyze federal legislation, it is to propose a constitutional amendment.)
[85] Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260
[86] See, https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet (Last visited November 20, 2013.) (CODIS is the acronym for the “Combined DNA Index System” and is the generic term used to describe the FBI’s program of support for criminal justice DNA databases as well as the software used to run these databases. The National DNA Index System or NDIS is considered one part of CODIS, the national level, containing the DNA profiles contributed by federal, state, and local participating forensic laboratories.)
[87] Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260.
[88] See, https://www.govtrack.us/congress/bills/110/hr5057/text. (Last visited November 22, 2012).
[89] Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260.
[90] Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260.
[91] Id.
[92] Id.
[93] Id.
[94] Id.
[95] Id. (It should be mentioned that the full contents of this act can be found with the Justice for All Act of 2004 and for that reason I don’t not become over inclusive of provisions of the collateral Act itself.)
[96] This act was very through in outlining the process, acquisition, and use of DNA evidence in post-conviction cases, it doesn’t make sense that the legislature would only reauthorize 2/4 of these collateral acts.
[97] Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260.
[98] Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260.
[99] Id.
[100] See, https://www.govtrack.us/congress/bills/110/hr5057/text. (Last visited November 22, 2012).
[101] Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260.
[102] Id.
[103] Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260.
[104] U.S. CONST. amend. XIV, § 1. (provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)
[105] Fed. R. Evid. 403. (By incorporating already existing standards and rules into my amendment proposal I can ensure uniformity when cases are decided amidst the realm of DNA evidence in criminal trials.)
[106] Fla. R. Crim. P. 3.853.
[107] This is a national database that I made-up. I will discuss what it is and what it does in a later portion of this amendment.
[108] Filing before the judgment and sentence in the case becomes “final” means the party filing the motion must do so before the time for an appeal or application for discretionary review with respect to the motion occurs.
[109] This is a national database that I made-up. I will discuss what it is and what it does in a later portion of this amendment.
[110] A court order granting or denying the motion is not “final” if time remains for an appeal or application for discretionary review with respect to the motion.
[111] Forcing the courts to pay a fine when they “mess” up or violate an action of this type could provide more of an incentive for them to correctly and adequately decide cases instead of relying on a notion of finality as support for those decisions.
[112] These inclusions ensure that informant testimony is credible and hinders the prosecution’s ability to use informant testimony as a “tool” for securing convictions.
[113] 18 U.S.C. § 3559 (West 2006). (A Class C misdemeanor is a crime that is less than a felony crime but punishable up to 30 days or less but more than 5 days in jail.)
[114] This amendment provides a way to utilize the rights secured by bringing both types of actions in a post-conviction case. A failure to abide by the regulations set out in this amendment should not allow parties to seek redress in virtually the same way by bring either one of these two types of post-conviction actions separately in hopes of skirting the penumbras of the law.
[115] 18 U.S.C. § 3559 (West 2006). (A Class A misdemeanor is a crime that is less than a felony crime but punishable up to 1 year or less but more than 6 months in jail.)
[116] 18 U.S.C.A §2241-2248 (West 2013) (These offenses include: § 2241. Aggravated Sexual Abuse; § 2242. Sexual Abuse; § 2243. Sexual Abuse of a Minor or Ward; § 2244. Abusive Sexual Contact; § 2245. Offenses Resulting in Death; § 2246. Definitions for Chapter; § 2247. Repeat Offenders; § 2248. Mandatory Restitution.)
[117] 18 U.S.C.A § 16 (West 2013). (A “crime of violence” means—“(a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another; or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”)
[118] I.e. to prove innocence in a future crime or to discredit a current accusation of guilt in a given criminal matter.
[119] i.e. to allow for the utilization of DNA evidence as a means outside of the criminal justice system and to provide a record of possible future offenders of criminal offenses.
[120] I.e. to allow for use in paternal cases, child custody cases, or any other case involving the safety of a child or minor so as to provide a safeguard against guardians and other guardians ad litem with impure motives.
[121] i.e. for utilization by the National Uniform DNA Database, so as to provide adequate national records as well as a uniform system for those records that can be easily accessed by the states.
[122] This is a discretionary provision dependent upon approval by a local judge or city magistrate.
[123] Meaning, a party cannot go back after this amendment has been enacted to utilize the provisions of this amendment for their benefit when they are already in the final process of their post-conviction action.
[124] I only include biological evidence as a source of Nuclear DNA evidence because biological evidence is the type of evidence utilized most often in criminal trials.
[125] See, https://www.ehow.com/facts_5900069_difference-nuclear-mitochondrial-dna-testing_.html (Last visited November 20,2013).
[126] National Research Council, National Academy of Sciences. Strengthening Forensic Science in the United States: A Path Forward, 128 (2009), https://ag.ca.gov/meetings/tf/pdf/2009_NAS_report.pdf. (hereinafter “NAS Report”)
[127] See, https://www.ask.com/wiki/Short_tandem_repeats?qsrc=3044. (Last visited November 25, 2013.)
[128] NAS Report, supra note 123, at 131-33. (Hair samples are more easily tested using the mitochondrial DNA evidence testing method because unless hair samples have a root attached, Nuclear DNA evidence analysis is not possible.)
[129] Id. (Teeth and bone samples are another example of biological evidence that is better tested using the Mitochondrial DNA testing method because teeth and bones have less definitive features than other forms of biological evidence such as: blood, semen, or saliva.)
[130] NAS Report, supra note 123, at 131-38.
[131] National Research Council, National Academy of Sciences. Strengthening Forensic Science in the United States: A Path Forward, 128 (2009), https://ag.ca.gov/meetings/tf/pdf/2009_NAS_report.pdf. (hereinafter “NAS Report”)
[132] See, https://www.nij.gov/topics/forensics/evidence/trace/pages/welcome.aspx. (Last visited November 25, 2013.)
[133] By allowing the use of more than more type of forensic analysis, this amendment would ensure that court decisions made under the provisions of this amendment would produce solid, scientific-based evidence either against or in favor of any given party to a criminal justice action. Issues caused by hearsay, or other issues falling under the realm of the Federal Rules of Evidence would be hindered because if there is adequate scientific data supporting a given proposition, it won’t matter who said what. In addition, it should be mentioned that there are other acceptable forensic sciences not mentioned here that may be used for utilization in a criminal trial.
[134] Allowing for the use of other forensic fields to be used in conjunction with DNA analysis provides a backup for situations arising where DNA evidence has been contaminated, lost, or destroyed. The other forensic fields could act as a way of “laying a foundation” for the scientific data much in the same way multiple pieces of evidence viewed in conjunction with each other may act as a basis of laying a foundation for admission of the evidence.
[135] See, Ryan KJ; Ray CG (editors) (2004). Sherris Medical Microbiology, 4th ed., McGraw Hill, pp. 322-24. ISBN 0-8385-8529-9.
[136] See, https://fsf.aafs.org/career_paths/pathologybiology (Last Visited November 25, 2013.)
[137] See, https://sis.nlm.nih.gov/enviro/toxtutor/Tox1/glosst.htm (Last visited November 25, 2013.)
[138] See, https://www.nij.gov/topics/forensics/evidence/controlled-substances/pages/welcome.aspx. (Last visited November 25, 2013.)
[139] See, https://www.nij.gov/topics/forensics/evidence/digital/Pages/welcome.aspx. (Last visited November 25, 2013.)
[140] See, https://www.nij.gov/topics/forensics/evidence/anthropology/Pages/welcome.aspx (Last visited November 25, 2013.)
[141] See, https://www.nij.gov/topics/forensics/evidence/anthropology/Pages/welcome.aspx (Last visited November 25, 2013.)
[142] 18 U.S.C. § 3559 (West 2006). (A Class A misdemeanor is a crime that is less than a felony crime but punishable up to 1 year or less but more than 6 months in jail.)
[143]See, Melendez-Diaz v. Massachusetts 129 S. Ct. 2537 (2009). (Justice Scalia is quoted saying, “serious deficiencies have been found in the forensic evidence used in criminal trials, defendants need confrontation to weed out not only the fraudulent analyst, but the incompetent one as well.”)
