New criminal laws are enacted by the legislative branch of government. Some create new offenses with proscribed penalties. Others are remedial in nature, creating new rules or changing existing rules of procedure. Many of these laws will be challenged in courts under what’s called the “void for vagueness” doctrine. Essentially, these challenges are rooted in the contention that a new law lacks definiteness and specificity as to raise due process implications because they fail to give fair notice as to what is illegal and what is not.


Legislature v. Courts


This process can, and frequently does, lead to tension between legislatures and courts.


In 2013, the Texas Legislature enacted a new forensic science statute and codified it in Article 11.073 of the Code of Criminal Procedure. The article created a new application for writ of habeas corpus based on claims of new scientific evidence.  The purpose of the law is to provide a vehicle for a state prison inmate to seek reversal of his or her conviction because it was based on faulty or discredited science.


This statute has created tension between the Legislature and the Texas Court of Criminal Appeals as to specific language in the statute and its overall application.


Admissibility of Scientific Evidence


Both state and federal courts have long established that scientific evidence is admissible in a court of law so long as it is reliable and relevant. “Experts” are permitted to testify about such evidence if the underlying scientific theory and technique they espouse are accepted as valid by a relevant scientific community.


These rules of procedure, however, have permitted truckloads of what has become known as “junk science” to be admitted into evidence through “experts” whose qualifications barely exceeded those of voodoo doctors. It is an issue we have addressed on a number of occasions (here, here, here,here) because it has led to the conviction and almost assuredly in some cases to the execution of innocent individuals.


Comes 11.073


The legislative purpose of Article 11.073 is to prevent these criminal justice tragedies from continuing without remedy. The New York-based Innocence Project has documented that in nearly half of all the DNA exonerations in this country, “unvalidated or improper forensic science contributed to the wrongful convictions.” It was this kind of irrefutable evidence that spurred the Legislature to enact Article 11.073.


Ex Parte Robbins


In 2014, the Texas Court of Criminal Appeals held in Ex Parte Robbins(II) that in order for an inmate to obtain relief under Article 11.073, he or she had to state specific facts showing that the “relevant evidence is currently available and was not available at the time of [his or her] trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date or during [his or her] trial.”


The “exercise of reasonable diligence” was inserted into the law to protect what the courts believe should be the “finality of conviction.” In other words, if a person has been properly convicted and has exhausted their direct appeal rights and post-conviction remedies, their conviction should be considered final and not subject to any additional collateral reviews.


In 2015, the Legislature decided to amend the statute in an effort to clarify and expand its application. This amendment allows a court hearing an Article 11.07 habeas corpus application challenging a conviction based on unavailable scientific evidence at the time of trial or contradicts the scientific evidence relied upon by the state at trial to consider, among other things, “whether a testifying expert’s scientific knowledge has changed since the applicable trial date or dates” in making an “exercise of reasonable diligence” determination.


Both the 2013 and 2015 versions of Article 11.073 require a specific finding by the trial court that, based on a preponderance of the evidence, had the new scientific evidence been presented at the original trial, the defendant would not have been convicted.


Robbins III


The tension created by the enactment of Article 11.073 was recently evidenced by three concurring opinions in the Court of Criminal Appeals’ January 27, 2016 decision in the Robbins (III) case. The tension was summed up by Judge Newell:


“Even though I believe that the Legislature crafted Article 11.073 broadly enough to include both ‘bad science’ and ‘bad scientists,’ I am not necessarily sanguine about its impact upon the finality of judgments. As Judge Cochran observed in her dissenting opinion in Robbins I:


“’Part of the problem is that there is a fundamental disconnect between the worlds of science and of law. Science is constantly evolving by testing and modifying its prior theories, knowledge, and ‘truths.’ It is a hallmark of the scientific method to challenge the status quo and to operate in an unbiased environment that encourages healthy skepticism, guards against unconscious bias, and acknowledges uncertainty and error. The legal system, on the other hand, ‘embraces the adversary process to achieve ‘truth,’ for the ultimate purpose of attaining an authoritative, final, just, and socially acceptable resolution of disputes.’ The judicial system normally accepts that ‘opinions grounded in science carry their own tests for reliability and usefulness, thus inspiring special confidence in judgments based on them.’ This disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased. The potential problem of relying on today’s science in a criminal trial (especially to determine an essential element such as criminal causation or the identity of the perpetrator) is that tomorrow’s science sometimes changes and, based upon that changed science, the former verdict may look inaccurate, if not downright ludicrous. But the convicted person is still imprisoned. Given the facts viewed in the fullness of time, today’s public may reasonably perceive that the criminal justice system is sometimes unjust and inaccurate. Finality of judgment is essential in criminal cases, but so is accuracy of the result—an accurate result that will stand the test of time and changes in scientific knowledge.’


“The back-and-forth between this Court and the Legislature over this case suggests to me that perhaps finality and accuracy, in the context of forensic science used in securing a conviction, are much harder to reconcile than many would care to admit. As a matter of policy, limiting the phrase ‘scientific knowledge’ to field-wide changes in science errs on the side of finality, but it is a hard choice that comes at the expense of accuracy. By enacting Article 11.073 without any express limitation on what constitutes ‘scientific knowledge,’ the Legislature tipped the scales in favor of accuracy perhaps at the expense of finality. And that is a decision that the Legislature gets to make, not this Court.


“Our job is to do our best to discover the Legislature’s intent, not substitute our policy preferences for the will of the people as expressed through their elected representatives. Proceeding from the position that the broad phrase ‘scientific knowledge is limited in meaning without any evidence that the Legislature attempted to narrow the scope of the phrase belies a policy choice not a resort to cannons of statutory construction. That is why I agree with this Court’s original majority opinion and join in the denial of the State’s motion for rehearing.”


Frustration over Lengths Litigants Must goes to Reverse Wrongful Convictions


Judge Acala expressed her specific concern about the Robbins case this way:


“This years-long litigation serves as a prime example of the lengths to which some litigants must go in order to obtain relief from their wrongful convictions. I explain each of the five events to demonstrate applicant has been incarcerated more than a decade on a wrongful conviction where it was abundantly clear to me long ago that his conviction should have been vacated.”


Judge Acala then offered up this forceful criticism of the Court’s handling of the case:


“This Court’s judicial decision should not require litigants to run to the Legislature for a statutory response to correct our judicial mistakes. The Court’s judicial decisions should not give the appearance of indecision or manipulation for the achievement of a desired result. And this Court’s judicial decisions should not come a half a decade too late while a defendant remains incarcerated based on what is clearly a wrongful conviction. I join this Court’s order because it is the correct result, but this case will, for a very long time, leave an indelible stain on this Court’s reputation for providing a fair forum for all litigants.”


We are thankful the Legislature tipped the scales in favor of accuracy over finality. “Finality” produces injustices while accuracy prevents them. It was the court’s undue concern for finality in the Robbins case that drew the harsh criticism from Judge Acala. We admire her courage to so express it.




NOTE: In 1999, Neal Hampton Robbins was convicted for the capital murder of a seventeen-month-old girl of the woman with whom he was living in Harris County. He sentenced to life prison. His case has a tortuous legal history whose facts can be found here:


Ex Parte Robbins, 2016 Tex. Crim. App. LEXIS 7

Court of Criminal Appeals

Decided: January 27, 2016


11.073 provides as follows:


(a) This article applies to relevant scientific evidence that:


(1) was not available to be offered by a convicted person at the convicted person’s trial; or

(2) contradicts scientific evidence relied on by the state at trial.


(b) A court may grant a convicted person relief on an application for a writ of habeas corpus if:


(1) the convicted person files an application, in the manner provided by Article 11.07, 11.071, or 11.072, containing specific facts indicating that:

(A) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted [33] person before the date of or during the convicted person’s trial; and

(B) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application; and

(2) the court makes the findings described by subdivisions (1) (A) and (B) and also finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.


(c) For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article 11.072, a claim or issue could not have been presented previously in an original application or in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application, as applicable, was filed.


(d) In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the scientific knowledge or method on which the relevant scientific evidence is based has changed since:


(1) the applicable trial date or dates, for a determination made with respect to an original application; or

(2) the date on which the original application or a previously considered application, as applicable, was filed, for a determination made with respect to a subsequent application.