Law Commons^™

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Articles

Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court …

Terms Of Service: The Use And Protection Of Genomic Information By Companies, Databases, And Law Enforcement, Sophia Kallas

Honors Theses

Private genomic companies have become a popular trend in the last two decades by providing customers with information regarding their ancestry and health risks. However, the profiles received from these companies can also be uploaded to public databases for various purposes, including locating other family members. Both testing companies and public databases have private interests, and both are at risk of law enforcement intervention for the purpose of forensic familial searching. There is little federal legislation protecting the privacy of an individual’s genetic profile. Consequently, it has been up to federal agencies, state laws, and judicial precedents to prevent the …

Commissioning Innocence And Restoring Confidence: The North Carolina Innocence Inquiry Commission And The Missing Deliberative Citizen, Mary Kelly Tate

Maine Law Review

Since 1989, the United States has witnessed 289 DNA exonerations, with exonerees serving an average of thirteen years in prison. Although DNA an its unmatched power for the conclusive results is what brought popular attention to wrongful convictions, the scope of the problem is vastly larger than the number of known DNA exonerations. The actual number of convicted individuals who are factually innocent is unknown. The state of North Carolina has recently responded to this national crisis via a newly created state agency. This essay applauds North Carolina’s response, but urges that ordinary citizens, qua jurors, be active participants in …

Optimizing Collection Of Trace Biological Samples From Vehicle Headrests, Kevin Tang, Jesse Ramirez, John Bond, Jocelyn Weart, Yvette Delatorre, Ian Fitch, Steven Lee

Themis: Research Journal of Justice Studies and Forensic Science

Tape-lifting and swabbing are two methods commonly used for collecting biological samples in the United Kingdom and United States to investigate vehicle crimes. Determining the optimal collection method may lead to an increase in generating DNA profiles and crime-solving. The objective of this study is to evaluate the efficiency of adhesive tape and the double-swab collection methods for investigating vehicle crimes with possible touch DNA samples. Two experiments were conducted to evaluate the use of tape-lifts and swabs on spiked common vehicle fabric materials. The efficiency of recovery between the two collection methods was performed using qPCR. The results from …

Forensics And Fallibility: Comparing The Views Of Lawyers And Jurors, Brandon L. Garrett, Gregory Mitchell

West Virginia Law Review

No abstract provided.

Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye

David Kaye

Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view (thus far) is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This essay shows that this demand is largely unfounded. Either warrantless, suspicionless DNA collection …

Chimeric Criminals, David H. Kaye

David Kaye

According to the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties — described as “the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases,” “a series of measured arguments,” and “a touchstone for debates about the spread of DNA profiling” — an obscure genetic condition known as chimerism “could undermine the very basis of the forensic DNA system” and force a reconsideration of “the entire project of forensic DNA.” This conclusion is as unfounded as it is unnerving. Chimerism is a consideration in, but not a real obstacle to DNA identification. This essay explains …

Confronting Science: Expert Evidence And The Confrontation Clause, David H. Kaye, Jennifer L. Mnookin

David Kaye

In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.

In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal …

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

David Kaye

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic area …

Testing Jury Reforms, Valerie P. Hans, B. Michael Dann, David H. Kaye, Erin J. Farley, Stephanie Albertson

Valerie P. Hans

DNA evidence has become a key law enforcement tool and is increasingly presented in criminal trials in Delaware and elsewhere. The integrity of the criminal trial process turns upon the jury's ability to understand DNA evidence and to evaluate properly the testimony of experts. How well do they do? Can we assist them in the process?

Newsroom: Waters '98 Testifies For Innocence Project, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Admissibility Of Trueallele: A Computerized Dna Interpretation System, Katherine L. Moss

Washington and Lee Law Review

No abstract provided.

Dna Analysis And The Confrontation Clause: “Special Needs” Category For Dna Testimonial Evidence, Colleen Clark

Golden Gate University Law Review

This Comment examines three recent U.S. Supreme Court decisions dealing with forensic evidence and how its use is affected by the Confrontation Clause. The Confrontation Clause provides a defendant with the right to confront adverse witnesses. Notably, in Williams v. Illinois, Justice Breyer pointed out that the Court has explicitly not addressed the “outer limits of the “testimonial statements” rule set forth in Crawford v. Washington.” Specifically, Justice Breyer asked how “the Confrontation Clause [applies] to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians?” This question, while left …

A New Analysis Of Innocence As A Constitutional Claim, Paige Kaneb

Faculty Publications

The Supreme Court has never resolved whether innocence is a freestanding constitutional claim. Some have mistakenly contended that the Court held in 1993 that innocence is not a federal constitutional claim. As a result, much of the literature has failed to recognize that the door for such claims remains open or that relevant circumstances have changed and thus the constitutional analysis has changed as well.

In the past two decades, a consensus has emerged among states recognizing the right to judicial review of compelling claims of innocence. In the wake of DNA exonerations, the states reacted uniformly in providing petitioners …

Williams V. Illinois: Confronting Experts, Science, And The Constitution, Natasha Crawford

Mercer Law Review

DNA evidence has revolutionized forensic science, making it the "single greatest advance in the search for truth.., since the advent of cross-examination." In Williams v. Illinois, the United States Supreme Court affirmed the Illinois Supreme Court's holding that there was no Confrontation Clause violation where experts based their testimony on another analyst's DNA report that was not admitted into evidence. The Court held an expert may assume the truth of certain facts-such as a DNA profile contained in a forensic report-to offer testimony based on those facts without testifying to the truth of the matter asserted. Until Williams, the …

The Genealogy Detectives: A Constitutional Analysis Of 'Familial Searching', David H. Kaye

Journal Articles

“Familial searching” in law enforcement DNA databases has been pilloried as a step “towards eugenics and corruption of blood” and “lifelong genetic surveillance” that is “inconsistent with a basic pillar of American political thought.” Courts have yet to address the issue fully, but several commentators contend that the practice is unwise, unjust, or unconstitutional. This Article examines the more significant constitutional claims. It concludes that although kinship matching should not be implemented simply because it is technologically seductive, neither should it be removed from the realm of permissible law enforcement information gathering on constitutional grounds. In reaching this conclusion, the …

Confronting Science: Expert Evidence And The Confrontation Clause, David H. Kaye, Jennifer L. Mnookin

Journal Articles

In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.

In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal …

Genetic Privacy And The Fourth Amendment: Unregulated Surreptitious Dna Harvesting, Albert E. Scherr

Law Faculty Scholarship

Genetic privacy and police practices have come to the fore in the criminal justice system. Case law and stories in the media document that police are surreptitiously harvesting the DNA of putative suspects. Some sources even indicate that surreptitious data banking may also be in its infancy. Surreptitious harvesting of out-of-body DNA by the police is currently unregulated by the Fourth Amendment. The few courts that have addressed the issue find that the police are free to harvest DNA abandoned by a putative suspect in a public place. Little in the nascent surreptitious harvesting case law suggests that surreptitious data …

Chimeric Criminals, David H. Kaye

Journal Articles

According to the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties — described as “the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases,” “a series of measured arguments,” and “a touchstone for debates about the spread of DNA profiling” — an obscure genetic condition known as chimerism “could undermine the very basis of the forensic DNA system” and force a reconsideration of “the entire project of forensic DNA.” This conclusion is as unfounded as it is unnerving. Chimerism is a consideration in, but not a real obstacle to DNA identification. This essay explains …

Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye

Journal Articles

Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view (thus far) is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This essay shows that this demand is largely unfounded. Either warrantless, suspicionless DNA collection …

Wrongfully Convicted: The Overrepresentation Of The Poor, Susan Rutberg

Publications

Professor Susan Rutberg introduced a panel of her students who presented papers, each focused on an individual cause of wrongful convictions and a proposed solution to this identified problem. The panel illustrated how law school students can use the lens of their inexperience to articulate straightforward approaches that might reduce the circumstances that produce wrongful convictions and alleviate some of the hardship such convictions cause.

The Admissibility Of Eyewitness-Identification Expert Testimony In Oklahoma, Sean S. Hunt

Oklahoma Law Review

No abstract provided.

Anatomy Of A Miscarriage Of Justice: The Wrongful Conviction Of Peter J. Rose, Susan Rutberg

Golden Gate University Law Review

This Article examines one case in which students and lawyers from Golden Gate University's Innocence Project won the exoneration of Peter J. Rose, a man who served nearly ten years of a twenty-seven year State Prison sentence for the rape and kidnap of a child before DNA proved his innocence. The analysis of this case focuses on how the conduct of two police detectives, the prosecutor and the defense attorney contributed to this miscarriage of justice.

Innocence After Death, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

Reading The Judicial Mind: Predicting The Courts' Reaction To The Use Of Neuroscientific Evidence For Lie Detection, Jennifer Chandler

Dalhousie Law Journal

How will the courts react to the emerging technology ofdetecting deception using neuroscientific methods such as neuro-imaging? The sociological theory of the autonomy of technology suggests that if neuroscientific techniques come to be seen as reliable for this purpose, other objections will soon be abandoned. The history of the judicial reaction to DNA evidence illustrates this pattern. As DNA evidence came to be seen as highlyreliable, the courts rapidly abandoned their concerns that juries would be overwhelmed by the "mystique of science" and that the justice system would be "dehumanized." The legaljustifications for rejecting polygraph evidence are explored in order …

In Praise Of The Guilty Project: A Criminal Defense Lawyer's Growing Anxiety About Innocence Projects, Abbe Smith

Georgetown Law Faculty Publications and Other Works

There is nothing more compelling than a story about an innocent person wrongly convicted and ultimately vindicated. An ordinary citizen is caught up in the criminal justice system through circumstances beyond his or her control, spends many years in prison, and then one day, with the assistance of a dedicated lawyer, is freed.

Often, when DNA is behind a vindication, not only is the innocent person exonerated but the true perpetrator is identified. This is a significant achievement even though it can also lead apologists for the system—even police and prosecutors implicated in the wrongful conviction—to proudly declare that the …

Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of, David H. Kaye

Cornell Journal of Law and Public Policy

No abstract provided.

"False But Highly Persuasive": How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye

Michigan Law Review First Impressions

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues—the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial. The letter from Laurence Mueller, a professor at the University of California at Irvine, identified two obvious mistakes in the state's expert testimony. …

Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of?, David H. Kaye

Journal Articles

DNA evidence is often presented as the “gold standard” for forensic science. But this was not always the case. For years, eminent scientists complained that the estimates of the tiny frequencies of DNA types were unfounded. It took scores of research papers, dozens of judicial opinions, and two committees of the National Academy of Sciences to resolve the dispute by the mid-1990s. Since 2000, however, reports have surfaced of shocking numbers of “partial matches” among samples within large DNA databases, and some scientists have complained that the infinitesimal figures used in court to estimate the probability of a random match …

Sweet Result In Savory: How The Seventh Circuit Took The Correct Approach To Post-Conviction Access To Dna Evidence In Savory V. Lyons, Jamie T. Newton

Seventh Circuit Review

Progress in the field of DNA testing over the last few decades has resulted in increasingly accurate results. Often this means that DNA evidence found to be inconclusive years ago may prove exculpatory to a prisoner if subjected to today’s more advanced testing. Prisoners may potentially gain access to this evidence through two methods: 1) a writ of habeas corpus; or 2) a § 1983 action. While both approaches can yield the same results, a writ of habeas corpus is subject to several procedural requirements which can delay a prisoner’s access to testing, making a § 1983 action a potentially …