Silent Witness - Volume 5, Number 1, 2000

National Commission on the Future of DNA Evidence's Recommendations for Handling Requests for Postconviction DNA Testing

by Kim Herd, Program Manager, Kimberly Irving, Staff Attorney and Adrianne Day, Legal Intern, APRI's DNA Legal Assistance Unit

IIn 1996, the National Institute of Justice published an important report entitled Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. This report profiled the cases of 28 different individuals who had been convicted of crimes and subsequently exonerated by postconviction DNA tests. Since its publication, DNA testing has exonerated more than 40 other convicted felons.1 Newspapers, magazines, and talk shows abound with the facts and circumstances of their individual stories. Although these cases are rare, the reality is that innocent people are sometimes convicted, and each instance is a serious affront to justice. As evolving DNA technology continues to spur more individuals to request postconviction DNA tests, prosecutors must prepare themselves to address them.

In response to the 1996 report's concerns, and in order to "maximize the value of forensic DNA evidence in the criminal justice system,"2 Attorney General Janet Reno established the National Commission on the Future of DNA Evidence. The Commission is composed of members from all facets of the criminal justice system including prosecutors, defense lawyers, criminal law and evidence professors, police officers, medical examiners, and victims' rights advocates. The Commission's working group on Postconviction Issues, which consisted of prosecutors and other criminal justice professionals, developed recommendations on postconviction relief issues that were published in a 1999 report. The report, entitled Postconviction DNA Testing: Recommendations for Handling Requests, is intended to assist prosecutors and other law enforcement officials to respond "effectively at the various stages of a postconviction request for DNA testing."3

The report examines the issues that arise from requests for postconviction relief and sets forth recommendations for the many parties involved. The result is a suggested plan for prosecutors, defense attorneys, judges, victim advocates, and DNA laboratory personnel to follow during every step of the process. Underlying these recommendations is the message that prosecutors should not automatically oppose every postconviction DNA request. Although this concept may conflict with a prosecutor's interest in achieving finality in judgments, justice always requires that wrongly convicted individuals be able to challenge their convictions. The Commission emphasizes that, in some cases, individuals who would otherwise be adversaries should work together. The report states: "When an inmate is truly innocent, or the facts are such that favorable testing results would create a reasonable doubt, the interests of prosecutors and defense counsel converge so that they may at some points have to modify their usual adversarial posture and engage in a joint cooperative venture."4

The report begins by discussing some of the legal issues that prosecutors typically face when dealing with postconviction relief requests. For instance, petitioners usually argue a right to discovery of the evidence itself for DNA testing and a concurrent right to present favorable test results in a judicial proceeding or an executive proceeding for clemency. Further, many petitioners will request that the State pay for this testing due to their indigency. Most jurisdictions have not established any clear legal theories or procedural mechanisms for obtaining this form of relief.5 The report also considers many of the following unresolved legal questions. Is there a constitutional right to testing under the Brady Doctrine? What showing must a petitioner make to gain access to testing? Does the petitioner or the State have the authority to obtain elimination samples from consensual partners? And finally, how should courts deal with the time limits that restrict use of the newly discovered evidence doctrine?

Next, the report explains the science underlying DNA forensic testing by providing a layman's description of how DNA testing is performed and surveying the different types of DNA forensic testing available. The report instructs prosecutors as to the possible results of a DNA test and provides the basic tools to understand those results. The report also explores other issues, such as storing and preserving samples, determining a sample's age, and choosing suitable samples for DNA testing.

For ease of analysis, the Commission created five categories for separating the types of postconviction requests and delineating suggested responses. For each category, the Commission describes the characteristics that define those cases, provides concrete examples, and outlines a strategy for responding to requests. This information is set forth in the text box that follows.

Currently, requests for postconviction DNA testing arise primarily from cases handled during a time period when law enforcement was either unaware of forensic DNA testing or did not perform such testing on a regular basis. As technology and time progress, petitioners who previously attempted DNA testing will likely request subsequent rounds of DNA testing utilizing procedures that are more refined and powerful. In either case, the potential for exoneration is real, and prosecutors must facilitate the process when the facts of the case warrant. In the words of the Commission: "As officers of justice, prosecutors have an interest not only in exonerating the wrongly accused, but in bringing the guilty to justice. A groundless conviction means that the real perpetrator is probably still at large. DNA testing is a tremendous player in the criminal justice system because of its ability to identify the true culprit in the case being challenged, clear up unsolved crimes, and prevent future criminal acts."6

The Commissions' Suggested Framework for Evaluating Cases of Post Conviction Relief that Involve Requests for DNA Testing7 

Category One -- In situations where biological evidence exists, and an exclusionary test result will completely exonerate the inmate, the prosecutor should seek DNA testing in conjunction with defense counsel. For example, consider a petitioner convicted of raping a sexually inactive child. If DNA testing of the vaginal swab taken from the victim excludes the petitioner as the donor of the sperm fraction, then he could not possibly have committed the crime. In "Category One" cases, prosecutors should also arrange for the state to subsidize testing for indigent petitioners.

Category Two -- Although biological evidence is available, DNA testing in some cases may not be fully determinative of innocence. Such a case would involve a situation where exclusionary results "would support the petitioner's claim of innocence, but reasonable persons might disagree as to whether the results rule out the possibility of guilt or innocence or raise a reasonable doubt about guilt."8 For example, consider a case in which a jury convicted a petitioner of stabbing the victim to death after hearing the prosecutor argue that the victim had bled on the petitioner's shirt during the murder. If DNA tests were to exclude the victim as the donor of the blood, then this would weaken the prosecution's theory. However, the fact that the blood on the petitioner's shirt was not the victim's would not, in and of itself, establish his innocence. As a result, the prosecutor may want to wait until defense counsel files a motion for DNA testing rather than making such arrangements independently as in Category One. In such cases, a judge may be better able to determine whether and under what circumstances testing should be conducted.

Category Three -- When current DNA technology will obtain only inconclusive or irrelevant results, the prosecutor should oppose testing. Inconclusive evidence occurs either when DNA testing will not yield a usable result, or when the current technology is insufficient to proceed with testing at all. For these cases, the prosecutor should continue to reevaluate the evidence as technology advances. An example of an "irrelevant result" would be when no DNA test could ever be sufficiently probative of innocence. For example, consider a petitioner convicted of participating in a gang rape. Since it is possible that the petitioner participated in the rape without leaving any semen, a test excluding him as a donor of the sperm fraction of the vaginal swab would not in and of itself undermine his conviction -- especially where there is other evidence connecting him to the crime.

Category Four -- In older cases, police did not always collect biological evidence. Even if they did collect blood or semen, evidence is sometimes lost or destroyed or preserved in such a way that it can no longer be tested. If no biological evidence suitable for DNA testing exists, the prosecutor should oppose the petition. However, the prosecutor should not categorize any case as Category Four until he or she makes all possible efforts to locate testable evidence.

Category Five -- The prosecutor should oppose any request for postconviction DNA testing that he or she deems frivolous. For example, consider a petitioner who argued self-defense at a homicide trial or consent at a rape trial. Other cases may present scenarios in which the totality of the evidence against the petitioner is so overwhelming that no DNA test result would undermine his conviction. Consider a case where police apprehend a petitioner while he is committing the crime or is clearly depicted on videotape committing a crime.

1 National Commission on the Future of DNA Evidence, Postconviction DNA Testing: Recommendations for Handling Requests [hereinafter Report] at 5 (1998).

2 National Institute of Justice, Programs, <<http://www.ojp.usdoj.gov/nij/dna/>> (last updated Jan. 17, 2000.

3 Report, at xiii.

4 Report, at xiv.

5 The Commission notes that both New York and Illinois have passed statutes that specifically authorize postconviction DNA testing, and permit an indigent petitioner to obtain the testing at the state’s expense, providing certain thresholds are met. See, N.Y. Crim. Proc. Law Sec. 440.30 (1-a) (McKinney Supp. 1999); 725 Ill. Comp. Stat. 5/116-3(a) (West Supp. 1998).

6 Report, at 6.

7 Copies of this report may be obtained by calling NCJRS at 1-800-851-3420 and asking for publication number.

8 Report, at 5.