Collecting DNA from Felony Arrestees (HB 2103) (2009)
Defense Counsel Access to Evidence (HB 2344) (2009)
Invasion of Personal Privacy (HB 2477) (2009)
Every session there is a wide range of criminal justice legislation, most often creating new crimes or expanding existing crimes. ACLU works closely with the Oregon Criminal Defense Lawyers Association on these issues. Because there are so many other civil liberties proposals throughout session (including many where ACLU is alone in raising concerns) we are never able to get involved in every criminal justice bill.
Collecting DNA from Felony Arrestees (HB 2103)
Introduced by former Rep. Donna Nelson (R-McMinnville), HB 2103 would have required law enforcement to collect a DNA sample from every person arrested for a felony. When the House Judiciary Committee held a public hearing we provided the only testimony, and we testified in opposition. Collecting someone’s DNA is a search, and as such it should require a court order with the required showing of probable cause. DNA, unlike fingerprints, not only reveals information about the individual, but can also provide genetic information, including medical conditions, of that person’s family members. We oppose the government collecting DNA of innocent people not yet found guilty of any felony..
WIN: DIED IN COMMITTEE
Defense Counsel Access to Evidence (HB 2344)
One very contentious proposal this session was HB 2344, which ACLU opposed. Introduced by Rep. Sara Gelser (D-Corvallis) on behalf of former Attorney General Hardy Myers and the Attorney General’s Sexual Assault Task Force, it would have significantly restricted criminal defense counsel access to evidence used by the prosecutor in the criminal proceeding if that evidence depicts the victim in any state of nudity or engaged in sexual activity. Currently, prosecutors and defense counsel have access to copies of all discovery material that can include this type of evidence.
ACLU agrees with the proponents that this evidence is extremely sensitive and must be handled carefully by everyone involved (law enforcement, prosecutor, defense counsel and the courts). Oregon law already allows the prosecutor to seek a protective order when providing copies to defense counsel restricting any further copying or dissemination. We expect everyone in the criminal justice system not only to comply with the law but to act professionally.
HB 2344 would have, in most cases, prohibited defense counsel and defense experts from obtaining a copy of this type of evidence. Instead, it would have limited access to this evidence for review only at a government facility. Such a law would greatly restrict the ability of both defense counsel and defense experts to review evidence and prepare the client’s defense independent of the prosecution.
An informal survey by the defense bar showed that while some prosecutors seek protective orders, many others do not. Because there was no indication that any of the protective orders had been violated, ACLU supported an amendment that would have made such orders mandatory in all cases involving this type of evidence. Unfortunately, the proponents did not support that approach. HB 2344 passed the House 52-5. While many more representatives expressed concern with the bill, most of them voted for it on the understanding that it would be amended when it got to the Senate. Unfortunately, the parties still could not agree, and the bill died in committee.
WIN: BILL DIED IN SENATE COMMITTEE
House Vote: 52-5
**Scorecard Vote
Invasion of Personal Privacy (HB 2477)
HB 2477 was introduced by Rep. John Huffman (R-The Dalles) and would have amended current Oregon law that makes it a crime to photograph a person in a state of nudity without that person’s consent. When the law was originally enacted in 1997, it was intended to go after individuals who had set up cameras in tanning booths or bathrooms. Since then, with the widespread use of cell phones that can be used to take photographs, this law now covers many more situations.
ACLU opposed HB 2477 because it would have elevated the crime from a misdemeanor to a felony and subjected a convicted defendant to lifetime sex offender registration. We were concerned about the overbroad application of this law having such an enhanced penalty. It is not hard to imagine college students who share living space in dorms to violate this law in spur-of-the-moment behavior. While it is already a crime subject to prosecution, making it a felony subject to lifetime sex offender registration is not appropriate in those circumstances.
HB 2477 passed out of the House Judiciary Committee and was sent to Ways & Means because of its potential fiscal impact. Eventually, the bill was amended in committee to remove the felony and sex offender registration provisions, leaving in place a change to the law that we did not oppose, and passed both the House and Senate on the last day of session.
WIN: AMENDED TO ADDRESS ACLU OBJECTIONS
