Robert P. McCulloch

Use of DNA Testing in Post-Conviction Appeals

As the only trial lawyers in America whose primary responsibility is to seek justice, prosecutors have long supported the many uses of DNA technology in the criminal justice system. DNA technology is a powerful scientific tool which, when properly used, can identify criminals, convict the guilty, absolve the innocent and exonerate the wrongfully convicted.

During the last few years we have seen an almost constant stream of stories about the role of DNA in the criminal justice system. Stories about convictions based on DNA test results; convictions overturned by DNA testing; changes in state and federal laws to enhance the collection and use of DNA as an investigative tool; breakdowns in over-taxed state laboratories; and, even a presidential pledge for funding to relieve the overwhelming backlog of cases awaiting DNA testing. One of the most serious consequences of this has been the debate on when DNA testing is appropriate in post-conviction appeals.

Because of its accuracy, the use of DNA evidence has been broadly embraced by the criminal justice system and therein lies part of the problem—one of resource allocation. There are many competing interests for the allocation of finite resources available for DNA testing. Though all are equally deserving, we must prioritize the allocation of funds for the collection, testing and storage of DNA samples.

One need for testing is current investigations—the crimes that we are investigating and prosecuting today. With a never-ending list of new cases and speedy trial limitations, prosecutors cannot wait too long for laboratory results without a detrimental impact on their cases.

Just as compelling is the need for testing of convicted felons and, in particular, sex offenders. Most states now provide for testing and retention of DNA samples from these individuals, but many states and even the federal government report a serious backlog in cataloging these DNA samples.

A third competing interest is the need for testing in “old/cold” cases. Tens of thousands of rape kits are sitting in evidence rooms across the country along with uncounted other items of physical evidence which should be subjected to DNA testing. Unfortunately, catching up with this backlog is problematic when balanced against the other priorities.

There should be little doubt, however, about which interest tops the list: cases in which a convicted and imprisoned defendant seeks testing AND testing will establish that person’s actual guilt or innocence. It has long been the policy of the National District Attorneys Association to support the use of DNA testing in these situations, especially if the test was not available at the time of conviction.

Because of advances in technology, post-conviction DNA testing might be appropriate, in limited cases, even if testing had been performed previously. The forms of testing used today were not widely available when DNA was first used in criminal cases in the mid-1980s. These present-day methodologies allow the testing of much smaller samples in a shorter time and are reliable on degraded samples.

The resources for DNA testing are not limitless. Conducting frivolous or non-conclusive tests means that tests that may free an innocent person or lead to the apprehension of a guilty person will not be done in a timely manner or at all. When we balance resources for DNA testing and retention we must ensure that justice is served for all, but we must prevent a waste of these same resources. NDAA supports enabling legislation by the states that addresses concerns of prosecutors and victims, such as avoiding frivolous litigation and preserving necessary finality in the criminal justice system.

The National District Attorneys Association has consistently supported legislation that removes barriers to post-conviction DNA testing, provided that such testing is limited to cases in which a favorable result to the defendant would prove the person’s innocence. Likewise, NDAA has also supported and encouraged the efforts of many individual prosecutors’ offices across the country who have taken the initiative to review their own past convictions in light of new DNA technology. America’s prosecutors have been at the forefront of efforts to use DNA to clear the wrongfully convicted.

We worked with Congress and the Department of Justice to see that our views on DNA testing became part of the president’s initiative, “Advancing Justice Through DNA Technology Act,” which enhances state capabilities in several areas deemed important to prosecutors.

Criminal defense lawyers have an obligation only to their clients. Lawyers representing convicted criminals will always have a client who claims to have been wrongfully convicted. Prosecutors have a responsibility to the public at large and to the victim in particular. We are ethically obligated to seek justice in each case. We must be permitted to make careful, well-reasoned objections to the use of post-conviction DNA testing without being accused of abdicating that responsibility.