Category Archives: Resources

A Guide to Using the UIDDA

The Uniform Interstate Depositions and Discovery Act (UIDDA) is a useful way to request discoverable documents which are located in another state via subpoena duces tecum. While most states have adopted some form of UIDDA, others lag behind. As of February 2017, Massachusetts, Maine, Connecticut, Florida, Missouri, Nebraska, Texas, Wyoming and Puerto Rico have not enacted it. Some other states (such as Massachusetts) have rules which permit foreign states to request documents and other information in-state but do not use UIDDA language and may not be as complete as UIDDA. Legislation has been introduced in Arkansas.

Where the party that maintains the record is a corporation with a registered NC agent, see the 2014 Formal Ethics Opinion about subpoenaing those records.

HOW TO USE IT

  1. Determine if the state where the record is located has adopted the UIDDA. See this list.
  2. If so, prepare a NC Subpoena using the AOC-G-100 form. State on the NC subpoena that it is not enforceable but is being provided for the purpose of obtaining a UIDDA subpoena. A request for the issuance of a subpoena under the UIDDA does not constitute an appearance in the courts of the state in which the record is maintained.
  3. Send the NC subpoena, a draft subpoena which complies with the other state’s rules of discovery, and a letter to the clerk of court where the record is maintained requesting that they issue the subpoena. Some states also have an application to submit along with those documents. The subpoena should contain the names, addresses, and phone numbers of all counsel of record and any party not represented by counsel. A clerk’s office will usually have a web page explaining its forms and procedures that should be consulted in preparing the draft subpoena.
  4. Remember that any motion directly affecting the subpoena (to quash, enforce, modify) is governed by the rules of the state where the subpoena will be issued. Additionally, there is a presumption that the rules of discovery of the state where the subpoena is to be issued apply, though some states reverse this presumption.
  5. Receive the requested documents.

Again, it is important to understand that the subpoena submitted to the out-of-state clerk’s office in the jurisdiction complies with their rules. A copy of the UIDDA is here and should be read in its entirety along with any statutes or local rule of the issuing state related to the adoption of the UIDDA.

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Crime Laboratory Essentials Webinar

Take a tour inside a state-operated crime lab with Professor Carol Henderson, Director of Stetson’s National Clearinghouse for Science, Technology, and the Law (NCSTL); Ann Talbot, the director of the Metro Nashville, Police Department Crime Laboratory; and Christine Funk, a criminal defense attorney with over 20 years of practice experience.

Crime Laboratory Essentials is a webinar provided by the Capital Litigation Initiative: Crime Scene to Courtroom Forensics Training series funded by the US Department of Justice. This seminar follows all the steps of forensic analysis for the five core disciplines of Forensic Science: latent fingerprint analysis, firearms, forensic biology (DNA analysis), drug identification, and toxicology. The free archived version of the webinar is available via the link above.

Using evidence from a mock crime to show the lab procedures and machinery used, this webinar takes you step by step through how each of these five sorts of evidence is tested. The panelists also provide additional information about each of the techniques by responding to questions from the audience. If you have a question about how a lab operates, from chain of custody, to testing, to post-trial evidence storage, this webinar has answers.

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Sample Motion for Preservation of Forensic Evidence

This motion is designed to:

  • Preserve evidence for future testing by defense experts
  • Remediate situations in which State testing will consume the entire sample
  • Protect the client’s legal interests regarding the destruction of evidence

An order to preserve evidence should be sought at the outset of a case. Some preservation orders prohibit all testing or order labs to complete testing that is not within their protocols. I have drafted a sample motion that sets forth a procedure by which all parties provide input on how to move forward if lab testing will completely consume an evidence sample, thus preventing unnecessary delay in testing and protecting the defendant’s right to perform independent testing.

Attorneys can adapt this sample motion and order to their cases. If additional items not mentioned in this motion need to be preserved, those should be specified in the motion and order. When evidence will be consumed or destroyed during testing, the sample motion creates a procedure where both the defense and prosecution submit proposals to the court, with service to the lab, for how to proceed with the testing. The motion contains an appendix with ideas of how to move forward with testing if testing would consume the entire sample.

Here is a link to the motion and order.

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NACDL Offers New Training Scholarship for Indigent Defense Attorneys

The National Association of Criminal Defense Lawyers (NACDL) is offering a new program of scholarship assistance for indigent defense providers. The scholarships will be available to public defenders, contractors, and private appointed counsel to allow defenders to attend criminal defense training programs nationwide.

These grant-supported scholarships will be awarded in the form of full or partial reimbursement of the registration costs of training programs offered by NACDL and other organizations. Limited travel reimbursement stipends may also be awarded to qualifying individuals to help defray the costs of travel and lodging. Individuals may apply for scholarship funds to attend in-person training events presented by NACDL or any of the organizations listed on the application form. Alternatively, individuals may request assistance attending a program sponsored by a different organization, for example, a national organization not listed on the application form or a comparable organization working on the state or local level.

More information about the scholarships, including detailed eligibility criteria, is available here. The scholarship application for NACDL training programs is available here. The Multi-Organizational Indigent Defense Training Scholarship Application is available here.

Please note that the application forms ask you to attach a brief statement from a supervisor verifying that your office lacks sufficient funds to cover registration for the program you are seeking to attend.  To aid you in satisfying that request, a letter from IDS Director Tom Maher describing IDS’s current budget constraints as they relate to funding for training is attached to this email.  Mr. Maher’s letter will also be posted on the IDS website next week under the “Training Opportunities” link.

For information about upcoming forensic training programs, click here.

 

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Strategic Litigation at the Innocence Project: Fighting to Change the Law around the Leading Causes of Wrongful Conviction

by M. Chris Fabricant and Karen Newirth

The Innocence Project is seeking partners to litigate test cases involving unreliable forensic sciences and eyewitness misidentification.  Attorneys with cases of potential interest should contact the IP directly at the email address provided below. 

On the morning of November 3, 1984, 63-year-old Ione Cychosz was found dead in a vacant lot behind her home in Milwaukee, Wisconsin.  She had been raped, stabbed and beaten to death.  Bite marks were discovered all over her body, eight in total.  The spermatozoa cells discovered in a vaginal wash were too few for identification purposes and investigators had little other evidence that might lead to the identity of the perpetrator.  However, Dr. Lowell Thomas Johnson, a forensic dentist (or “forensic odontologist”), examined the body and determined that the bite marks had to have been inflicted by someone missing a front tooth.  Based on this information, police questioned local men who were missing teeth and had violent sexual assault convictions. They also questioned Robert Lee Stinson, whose backyard connected to Cychosz’s.  When detectives noticed Stinson was missing a front tooth, he was arrested and charged with first-degree murder.

The only direct evidence against Stinson at his 1985 trial was the bite mark testimony of two board-certified “Diplomates” of the American Board of Forensic Odontology (ABFO), Drs. Johnson and Raymond Rawson.  Dr. Johnson concluded that the bite marks “had to have been made by teeth identical” to Stinson’s, and claimed that there was “no margin for error” in his conclusion.  Dr. Rawson, former chairman of the Bite Mark Standards Committee of the ABFO, testified that the bite mark evidence was “high quality” and “overwhelming.”  Both experts testified “to a reasonable degree of scientific certainty,” that the bite marks on the victim had been inflicted at or near the time of death, and that Stinson was the only person who could have inflicted the wounds.  After examining Dr. Johnson’s workup, Dr. Rawson stated that the methods he used in gathering the evidence complied with the “standards of the American Board of Forensic Odontology.”

Stinson was convicted of murder and sentenced to life in prison.  He was 21-years-old; it would be 23 years before he was proven innocent by DNA evidence thanks to advances in DNA testing technology that allowed the sperm cells collected at the time of the crime to be tested.  Despite their erroneous conclusions in Stinson’s case, Drs. Rawson and Johnson remain board-certified Diplomates of the ABFO.  And despite the fact that bite mark comparison evidence contributed to this and at least a dozen other known wrongful convictions, bite mark comparison evidence remains admissible “scientific” evidence in every state that has decided the issue.  Indeed, Stinson’s direct appeal, a case of first-impression in Wisconsin on the admissibility of bite mark evidence, remains good law today.  See State v. Stinson, 134 Wis. 2d 224 (Ct. App. 1986).  Tragically and ironically, Stinson was cited by the Mississippi Supreme Court in affirming the conviction of another innocent man, Levon Brooks, who was convicted of the murder of a 3-year-old girl based on bite mark comparison evidence.  Brooks v. State, 748 So.2d 736 (Miss. 1999).  Brooks spent 16 years in prison before DNA proved his innocence in 2008.

Stinson and Brooks are just two of the countless innocent defendants whose convictions were based at least in part on unvalidated or misapplied forensic science.  Considering how infrequently bite mark evidence is introduced in criminal trials, this particular discipline is over-represented in wrongful conviction cases.  However many other unreliable forensic disciplines have been implicated in cases of wrongful conviction, including hair microscopy, fiber analysis, tire tread analysis, arson, “shaken baby syndrome”, dog scent lineups, and the list goes on.  Indeed, the misapplication of forensic science is the second leading contributor to wrongful conviction, playing a role in over 50% of the 306 wrongful convictions proved by post-conviction DNA testing.  The only more common contributing cause of wrongful convictions is eyewitness misidentification, which has played a role in nearly 75% of known wrongful convictions. Despite the lessons learned from DNA exonerations and the publication of the National Academy of Sciences’ report on the current state of forensic science, Strengthening Forensic Science in the United States: A Path Forward, (2009), unreliable “scientific” evidence continues to be widely accepted by criminal courts across the country.

To fight against the admission of evidence that we know leads to wrongful convictions, including unreliable eyewitness identification testimony, the Innocence Project created the Strategic Litigation Unit in 2012.  For many years we have engaged litigation and legislative advocacy aimed at reforming the way courts evaluate the reliability of eyewitness identification evidence.  This work has resulted in two landmark decisions, State v. Henderson, 208 N.J. 208 (2011), and State v. Lawson, 352 Or. 724 (2012), in which the supreme courts of New Jersey and Oregon, respectively, overhauled their states’ tests for determining the admissibility and treatment of eyewitness identification evidence in criminal trials.  With the creation of Strategic Litigation the Innocence Project is now litigating around the other leading causes of wrongful conviction, particularly unreliable and unvalidated forensic sciences.

The wrenching injustices endured by men like Robert Lee Stinson and Levon Brooks are both correctable – and preventable.  Scientific integrity can and must be brought to the American criminal justice system.  A free society cannot continue to tolerate the routine admission of sworn expert testimony we know – as a matter of science – to be false.  Nor can we turn away from the prisoners whose convictions rest on what we now know was demonstrably false “scientific” evidence admitted at trial as evidence of guilt.

The Innocence Project’s work on these issues is not done alone.  We collaborate with the defense bar and attorneys pursuing post-conviction innocence claims to identify and litigate against the admissibility of unreliable forensic and eyewitness identification evidence.  The Strategic Litigation Unit partners with defense counsel in all stages of litigation, including pre-trial Frye/Daubert hearings; we lend amicus support in appellate and post-conviction litigation, and consult with attorneys litigating eyewitness identification and forensic science cases nationwide.  Consider this essay an invitation to work with us toward these reasonable and indeed moral goals.  Attorneys with cases implicating this work should contact the Innocence Project directly.

M. Chris Fabricant

Director, Strategic Litigation

cfabricant@innocenceproject.org

212.364.5997

 

Karen Newirth

Senior Fellow, Strategic Litigation

knewirth@innocenceproject.org

212.364.5349

 

NOTE: Potential innocence claims in North Carolina should be directed to the North Carolina Innocence Inquiry Commission, or to one of the following organizations:

North Carolina Center on Actual Innocence
PO Box 52446
Shannon Plaza Station
Durham, NC 27717
Phone: 919-489-3268

The Duke Center for Criminal Justice and Professional Responsibility
Duke University School of Law
PO Box 90360
Durham, NC 27708
Phone: 919-613-7241

Wake Forest University Law School and Innocence and Justice Clinic
1834 Wake Forest Road
Winston-Salem, NC 27109
Phone: 336-758-6111

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Sample Motion for Independent Testing of Evidence

Defense attorneys may decide to make a motion for independent testing of forensic evidence in cases where either the State has chosen not to complete forensic testing of an item of evidence or where the State has tested the item and the defense would like it to be re-tested. This issue has come up more frequently in recent DWI cases where the State has elected to proceed on an “appreciable impairment” theory rather than waiting to have the blood sample tested by the State Crime Lab.

Failure to include necessary information in a motion and order for independent testing can result in delays as the evidence custodian attempts to determine how to comply with the court order that lacks information needed to ship the item of evidence to the independent laboratory. In an attempt to ensure that the necessary information is included in a motion and order for independent testing, I have drafted a sample motion and order that attorneys can adapt to their cases. Assistant Attorney General Joy Strickland has been provided an opportunity to review it and make suggested changes. Here is a link to the motion and order.

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Evening at the School of Government, Part III: Firearms 101

We are excited to announce “Firearms 101,” the third program in our Evenings at the School of Government series. This series, cosponsored by the UNC School of Government and NC Office of Indigent Defense Services, consists of free presentations on forensic evidence and other criminal law topics that are designed to enhance the knowledge of criminal law practitioners. Available for CLE credit, these programs will occur after business hours at the School of Government in Chapel Hill. A social hour at a local venue will follow each presentation so that participants may continue their discussions with the speakers.

At this program, veteran defense attorney David Waters and private investigator Michael Grissom will instruct participants on firearm mechanics and functionality, projectile trajectory, and basic information about the firearm/toolmark comparison.  Using examples and images from their own cases, they will describe common issues related to forensic firearm analysis, and how defense counsel can address these through motions practice and cross-examination. They will also discuss raising challenges to a witness’s qualification as an expert and the merits of hiring a private firearms expert in a particular case.

Participants: This program is geared toward attorneys who may confront issues regarding firearms in their cases.

Location, Dates, & Times: The program will be held on Thursday, August 22 at the School of Government on the UNC-Chapel Hill campus. Sign-in is from 5:15pm to 5:30pm, at which time the program will begin. The 1.50 hour program ends at 7:00pm. Following the presentation, we welcome you to join the presenters for an informal happy hour at W XYZ bar, located in the lobby of the Aloft Hotel on Highway 54 in Chapel Hill. Directions to the Aloft Hotel can be found here.

RSVP: Registration is not required, but we ask that you RSVP via email by August 15 to Brooke Bailey, at bailey@sog.unc.edu.

Fee: Free. (Because no registration fee will be charged by the School of Government, each lawyer is responsible for paying the NC State Bar for earned CLE credits at $3.00 per hour.)

CLE Credit & Certification: This program offers 1.5 hours of general CLE credit and qualifies for NC State Bar criminal law specialization credit.

Materials: Materials for this program are forthcoming and will be available under the Course Materials category on the program website (http://www.sog.unc.edu/node/3666). Those who RSVP for this event will receive a confirmation email on August 19 with a link to the program materials. Please note that the materials will not be provided in hard-copy form at the program. We strongly recommend that you either bring a laptop and access the materials electronically or print and bring them with you to the program.

Directions and Parking: Directions to the School of Government may be found on our website’s visitor information page. Parking will be available in the lot adjacent to the School of Government. You will not need a parking code to enter the lot or a parking pass. (The gate opens at 5:00pm.) You will enter the building via the side entrance by the parking lot.

Additional Information: We look forward to seeing you next month.  If you have any questions or would like additional information, please contact Brooke Bailey (919.966.4227 / bailey@sog.unc.edu) or Defender Educator Alyson Grine (agrine@sog.unc.edu / 919.966.4248).

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