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DNA/Capital Representation Bill Clears Senate Judiciary Committee!

The Innocence Protection Act (IPA), which would increase prisoner access to DNA testing and would enhance the quality of representation in death penalty cases, cleared an important hurdle yesterday when it won approval from the Senate Judiciary Committee. The vote was 12-7, with Republican Sens. Specter (PA) and Brownback (KS) joining all 10 Democrats in support of the bill.

The version approved by the Committee also includes and amendment authorizing student loan forgiveness for state or local public defenders.

NACDL has played an active role in shaping and supporting this important legislation. Second Vice President Barry Scheck and Board of Directors member Stephen Bright have testified in Congress and provided input regarding the bill's language. Every bit as important has been our grassroots efforts, with our leadership and membership reaching out to their legislators and others to help build strong bipartisan support.

Now we turn our attention to the House of Representatives, where the companion version of the Act has 240 cosponsors, including 175 Democrats, 64 Republicans, and 1 Independent. Unfortunately, we still lack the support of many of the Republican members of the House Judiciary Committee -- including Chairman Sensenbrenner (WI) and Representatives Hyde (IL), Gekas (PA), Smith (TX), Gellegly (CA), Goodlatte (VA), Chabot (OH), Barr (GA), Jenkins (TN), Cannon (UT), Graham (SC), Hostettler (IN), Green (WI), Keller (FL), Issa (CA), Flake (AZ), Pence (IN), and Forbes (VA). Winning the support of these Members is crucial to our ultimate success. If your congressman is on this list, we urge you to contact him -- now or during the month of August, when he will be back home. For more information about the Innocence Protection Act and a complete list of lawmakers who need to hear from us and their contact information, please visit NACDL's legislative affairs Web page.

http://www.nacdl.org/public.nsf/freeform/legislation?OpenDocument&Expand Section=1.1#_Section1.1

This is an important step towards victory for your NACDL, your clients, and our criminal justice system. Let's work together to pass this bill!

Kyle O'Dowd Legislative Director

How to Achieve Exclusion of 'Known' Fingerprints

To prove that the defendant's prints are the same as those left at the crime scene, the prosecution must demonstrate that the known fingerprints--those rolled prints taken during a booking procedure, for example--in fact, belong to the defendant. The most common way for this to be demonstrated is to have the officer who fingerprinted the accused upon his arrest come to court and testify that he witnessed the taking of the "known fingerprints" preserved on a card, and affirm that they belong to the defendant. Although you might think that this procedure is routine, you would be surprised at how often the prosecution's case gets derailed by its inability to establish this link in the evidentiary chain.

Challenges to the rolled prints are some of the most effective means to win an early victory. These challenges can be made via a motion in limine or via an objection during trial. Either way, counsel should be prepared before trial with a detailed basis for proposing the exclusion and supporting authority. The following arguments have been successful in precluding the prosecution's evidence of the "known prints." Be aware of the risk that accompanies pre-trial motions: Alerting the prosecution to the need to cross its "t's" and dot its "i's" before trial.

Authentication--Attempts to introduce fingerprint cards without first authenticating them by establishing how they were obtained, affirmatively showing that they reflect the fingerprints of the defendant, and obtaining the requisite signatures required within the jurisdiction can be met with a motion to exclude such evidence from trial.

• Personal Knowledge--Prosecution failure to introduce fingerprint cards without establishing the personal knowledge of the recording official--even if the defense fails to object--can be the basis for exclusion of the known prints. The defense may move to exclude the cards from evidence on the grounds that the prosecution cannot use such cards to identify the defendant as the person who left prints at the crime scene, because there is no one to connect the defendant to the person represented by the fingerprint cards.

• Chain of Custody--If there are breaks in the chain of custody that make it difficult for the prosecution to demonstrate that the known fingerprints reflect the identity of the defendant, move in limine for the known prints to be excluded as hearsay.

• Notice of Expert Testimony--Failure to provide notice of witness testimony can get the prosecution into hot water. If the prosecution attempts to get the fingerprint cards admitted through the testimony of an expert, move to exclude them in limine unless the government has provided notice of the use of an expert witness pursuant to discovery rules.

• Prejudicial Evidence of Prior Arrests--When the "known fingerprints" are fingerprints taken from a previous arrest, their introduction may be irrelevant and prejudicial to the defendant by permitting the jury to infer his prior criminal conduct. If such evidence is going to be introduced for comparison with the latent prints, move in limine for it to be excluded.

Good advice, like the report summary above, does not have to be expensive and finding the right information doesn't always have to be hard. The BNA Criminal Practice Manual & Report is an inexpensive, easy to-use resource for cutting-edge analysis, practice guides and more to hone your trial skills. Now you can find out for yourself -- for free -- what an effective and comprehensive tool the BNA Criminal Practice Manual & Report can be in your work.