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Postconviction DNA Testing:
Recommendations for Handling Requests
A Report From The
National Commission on the Future of DNA Evidence
September 1999
U.S. Department of Justice Office of Justice Programs National
Institute of Justice
Message From the Attorney General
The vigilant search for truth is the hallmark of our criminal justice system. Our methods of investigation, rules of criminal procedure, and appellate process are designed to ensure that the guilty are apprehended and convicted while the innocent are protected. But while ours is a system to be cherished, it is not a perfect system, and those of us charged with the administration of justice have a responsibility to seek its continued improvement. These recommendations acknowledge and accept that responsibility. They were created because forensic DNA technology can strengthen our confidence in the judicial process.
In 1996 the National Institute of Justice (NIJ) issued the research report, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. It told the stories of 28 men whose innocence was proven by applying DNA technology to evidence after they were convicted and sent to prison. They had, however, served an average of 7 years in prison. Since the publication of that report, more than 40 other similar cases have been identified.
In response to NIJ’s report, I requested that the Institute establish a National Commission on the Future of DNA Evidence to identify ways to maximize the value of DNA in our criminal justice system. I commend the Commission’s recognition of the need to address the postconviction issue immediately and I applaud the vision of a better system that these recommendations provide.
The analysis offered by these recommendations applies DNA technology to the appeals process while recognizing the value of finality in the criminal justice system. Where DNA can establish actual innocence, the recommendations encourage the pursuit of truth over the invocation of appellate time bars. In those cases in which DNA testing may be determinative of innocence, the recommendations encourage cooperation between prosecutors, defense attorneys, laboratories, and the judiciary. Likewise, in those cases in which a DNA exclusion would be of no value in the determination of actual innocence, the recommendations discourage the filing of a DNA-based appeal simply because the attorney’s client requests it.
I encourage prosecutors, defense attorneys, the judiciary, victim advocates, and laboratory personnel to apply these recommendations to their individual cases. Using DNA technology fairly and judiciously in postconviction proceedings will help those of us responsible for the administration of justice do all we can to ensure a fair process and a just result.
Janet Reno
Attorney General
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National Commission on the Future of DNA Evidence
The National Commission on the Future of DNA Evidence was created in 1998 at the request of Attorney General Janet Reno. When she read about the use of DNA to exonerate someone wrongfully convicted of rape and homicide, she became concerned that others might also have been wrongly convicted. The Attorney General then directed the National Institute of Justice (NIJ) to identify how often DNA had exonerated wrongfully convicted defendants. After extensive study, NIJ published the report Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, which presents case studies of 28 inmates for whom DNA analysis was exculpatory.
On learning of the breadth and scope of the issues related to forensic DNA, the Attorney General asked NIJ to establish the Commission as a means to examine the future of DNA evidence and how the Justice Department could encourage its most effective use. The Commission was appointed by the Director of the National Institute of Justice, Jeremy Travis, and represents the broad spectrum of the criminal justice system. Chaired by the Honorable Shirley S. Abrahamson, Chief Justice of the Wisconsin State Supreme Court, the Commission consists of representatives from the prosecution, the defense bar, law enforcement, the scientific community, the medical examiner community, academia, and victims’ rights organizations.
The Commission’s charge is to submit recommendations to the Attorney General that will help ensure more effective use of DNA as a crime fighting tool and foster its use throughout the entire criminal justice system. Other focal areas for the Commission’s consideration include crime scene investigation and evidence collection, laboratory funding, legal issues, and research and development. The Commission’s working groups, consisting of Commissioners and other non-Commission experts, research and examine various topics and report back to the Commission. The working group reports are submitted to the full Commission for approval, amendment, or further discussion and provide the Commission background for its recommendations to the Attorney General.
By nature of its representative composition and its use of numerous working groups, the Commission receives valuable input from all areas of the criminal justice system. The broad scope of that input enables the Commission to develop recommendations that both maximize the investigative value of the technology and address the issues raised by the application of a powerful technology.
Commission Members
Chair
The Honorable Shirley S. Abrahamson
Chief Justice
Wisconsin Supreme Court
Members
Dwight Adams
Section Chief
Scientific Analysis
Federal Bureau of Investigation
Jan S. Bashinski
Chief
Bureau of Forensic Services
California Department of Justice
George W. Clarke
Deputy District Attorney
San Diego, California
James Crow
Professor
Department of Genetics
University of Wisconsin
Lloyd N. Cutler
Wilmer, Cutler & Pickering
Washington, D.C.
Joseph H. Davis
Former Director
Miami-Dade Medical Examiner Department
Paul B. Ferrara
Director
Division of Forensic Sciences
Commonwealth of Virginia
Norman Gahn
Assistant District Attorney
Milwaukee County
Wisconsin
Terrance W. Gainer
Executive Assistant Chief
Metropolitan Police Department
Washington D.C.
Terry G. Hillard
Superintendent of Police
Chicago Police Department
Aaron D. Kennard
Sheriff
Salt Lake County, Utah
Philip Reilly
President and CEO
Shriver Center for Mental Retardation
Harvard University
Ronald S. Reinstein
Associate Presiding Judge
Superior Court of Arizona
Maricopa County
Darrell L. Sanders
Chief of Police
Frankfort, Illinois
Barry C. Scheck
Professor
Cardozo Law School
New York, New York
Kurt L. Schmoke
Mayor
Baltimore, Maryland
Michael Smith
Professor
University of Wisconsin Law School
Jeffrey E. Thoma
Public Defender
Mendocino County, California
Kathryn M. Turman
Acting Director
Office for Victims of Crime
U.S. Department of Justice
William Webster
Milbank, Tweed, Hadley & McCloy
Washington, D.C.
James R. Wooley
Assistant U.S. Attorney
Cleveland, Ohio
Commission Staff
Christopher H. Asplen, AUSA
Executive Director
Lisa Forman, Ph.D.
Deputy Director
Robin S. Wilson
Executive Assistant
Postconviction Issues Working Group
A convicted individual’s continued assertion of innocence is not new to the criminal justice system and in fact is familiar to appeals courts. The use of DNA technology may bring to courtroom proceedings a degree of certitude to which neither the defense nor the prosecution is accustomed. Typically in an appeal, the possibility that the original verdict will be overturned is merely suggested.
By contrast, the introduction of DNA evidence after conviction may definitively prove innocence. Because of the high level of certainty made possible by DNA technology, the decision to oppose or not oppose a motion requesting postconviction relief may now be based on a different foundation of knowledge.
The implications of DNA technology for criminal justice are most evident in postconviction appeals, both in the use of DNA evidence in specific cases and in its broader impact on the criminal justice system. The Commission has examined the use of DNA evidence in previously adjudicated cases in order to develop recommendations about the postconviction process and is exploring the effect that DNA technology may have on the statutes of limitation for filing appeals and charges. The latter issue arises because DNA samples last indefinitely, beyond the periods of time permitted for such filings.
Postconviction DNA Testing: Recommendations for Handling Requests will serve criminal justice system practitioners as guidelines for analyzing cases in which DNA evidence is presented. These recommendations have been unanimously approved by the Commission. The guidelines constitute the scientific ground on which to make fully informed decisions and on which to develop the legal approaches needed when DNA may determine the outcome of an appeal. Separate chapters of the guidelines are tailored to the needs of prosecutors, defense attorneys, the judiciary, forensics laboratories, and victim advocates.
Working Group Members
Chair
Ronald Reinstein
Associate Presiding Judge
Superior Court of Arizona
Maricopa County
Members
Christopher H. Asplen, AUSA
Executive Director
National Commission on the Future of DNA Evidence
U.S. Department of Justice
Dennis D. Bauer
Senior Deputy District Attorney
Orange County, California
Margaret Berger
Professor
Brooklyn Law School
New York, New York
Kevin C. Curran
Assistant Federal Public Defender
Eastern District of Missouri
Lisa Forman, Ph.D.
Deputy Director
National Commission on the Future of DNA Evidence
U.S. Department of Justice
Geoffrey C. Hazard, Jr.
Director
American Law Institute
Philadelphia, Pennsylvania
Barbara R. Morgan
Solicitor, 2nd Judical Circuit
South Carolina
Barry C. Scheck
Professor
Cardozo Law School
New York, New York
Jane Siegel
Winston & Strawn
Chicago, Illinois
Kathryn M. Turman
Acting Director
Office for Victims of Crime
U.S. Department of Justice
Charlotte J. Word
Deputy Laboratory Director
Cellmark Diagnostics
Germantown, Maryland
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Table of Contents
Message From the Attorney General
National Commission on the Future of DNA Evidence
Executive Summary
Case Categories
Legal Issues
Biological Issues
Recommendations for Prosecutors
Recommendations for Defense Counsel
Recommendations for the Judiciary
Recommendations for Victim Assistance
Recommendations for Laboratory Personnel
The Future
Chapter 1. Introduction
Background
— DNA Testing
— The Commission
A Framework for Analysis
The Roles of the Participants
— The Role of Prosecutors
— The Role of Defense Counsel
— The Role of Law Enforcement Personnel
— The Role of the Court
— The Role of the Victims’ Advocate
— The Role of Laboratory Personnel
Chapter 2. Legal Issues
Background
The Impact of DNA Testing
— Can a Right to Discovery Be Inferred From Statutes Providing for Postconviction Relief?
— Is There a Constitutional Right to Testing Under the Brady Doctrine?
— Is There a Constitutional Right to Demonstrate Actual Innocence That Provides a Basis for Access to Testing Through Habeas Corpus Review in Federal or State Court?
— Are There Other Bases on Which Petitioners Can Obtain Access to Testing?
— What Kind of a Showing Must the Petitioner Make to be Afforded Access to Testing?
— May Consensual Partners Be Required to Provide Elimination Samples?
— How Do Time Limits in Motions for a New Trial Based Upon Newly Discovered Evidence Affect Requests for Postconviction DNA Testing?
— Is a Petitioner Entitled to Testing in Order to Pursue Executive Clemency if the Results are Favorable?
— Is an Indigent Petitioner Entitled to Have the State Pay for Postconviction DNA Testing?
— Is an Inmate Whose Conviction is Vacated on the Basis of Favorable Postconviction DNA Testing Results Entitled to Compensation?
Chapter 3. Biological Issues
DNA
Types of Samples Suitable for DNA Testing
— Questioned or Unknown Samples
— Samples From Unidentified Bodies
— Reference Samples From Known Individuals
— Samples to Use When No Conventional Reference Samples Are Available
— Reference Samples From Individuals Who Have Been Transfused
— Use of Samples From Relatives for Testing
— Determination of Paternity or Maternity of a Child or Fetus
Storage and Preservation of Samples
Determination of the Age of the Sample
Testing of Samples Deposited on Various Substrates
Determining Which Samples to Test
Previous Testing: Was It Done? What Do the Tests Mean?
Location of Samples in Postconviction Cases
Types of DNA Tests
— Restriction Fragment Length Polymorphism Testing
— Polymerase Chain Reaction Testing–Nuclear DNA
— Polymerase Chain Reaction Testing–Mitochondrial DNA
Possible Results/Conclusions From DNA Tests
— Inclusions
— Exclusions
— Inconclusive Results
Databases
Testing in the Future
Chapter 4. Recommendations for Prosecutors
Possible Responses to an Application for Postconviction DNA Testing
Responding to a Request: The First Stage
— Get Information
— Initial Relevancy Determination
— Provide Information
Information Gathering Stage
— Preserve Evidence and Information
— Make Preliminary Evaluation of Availability of Evidence
— Get Full Information About What Was Done Previously
Assessing the Viability of the Claim
— Make a Preliminary Evaluation of the Merit of the Claim
— Conduct a Thorough Review of the Case File
Consultation With Defense Counsel
Interaction With Victims
Pretesting Considerations
— Consultation With Experts and Experienced Colleagues
— Elimination Samples
— Mixtures
— Blood Transfusions
— Decide Whether to Order DNA Analysis Without Challenge
— Notify the Defense and Victim of Decision
— Payment
Procedures After Postconviction Testing Results Have Been Obtained
Chapter 5. Recommendations for Defense Counsel
Handling Initial Requests
— Screening
Information Gathering
Assessing the Viability of the Claim
Investigation/Searching for the Evidence
Consultation With Prosecutors
Interaction With Victims and Dealing With the Media
Legal Avenues
Pretesting Considerations
— Consultation With Experts and Experienced Colleagues
— Deciding on a Mutually Agreeable Laboratory and Methods of Testing
— Elimination Samples
— Replicate Testing
— Payment
— Disclosure of DNA Testing Results
Establishing a Chain of Custody and Preserving Evidence for Testing
Procedures After Postconviction Testing Results Have Been Obtained
Chapter 6. Recommendations for the Judiciary
Handling Initial Requests
Information Gathering/Searching for Evidence
Pretesting Stage
Procedures After Postconviction Testing Results Have Been Obtained
Chapter 7. Recommendations for Victim Assistance
Initial Notification
Searching for Evidence/Requesting DNA Samples From Victims and Third Parties
Ensuring Privacy of Victims and Survivors
Assisting Victims After Postconviction Results Have Been Obtained
Chapter 8. Recommendations for Laboratory Personnel
Handling Initial Requests
Role of the Expert in the Laboratory
— Laboratory Previously Involved in the Case
— Laboratory as a Consultant
— DNA Testing Laboratory
Considerations for Selecting a Laboratory for DNA Testing
Selection of Samples for Testing
Retention of Samples for Future Testing
Quality Assurance Standards for Forensic DNA Testing Laboratories and Technical Working Group on DNA Analysis Methods (TWGDAM) Guidelines: Validation With Nonprobative Evidence
Glossary
Appendix I. Resources
Appendix II. State Statutes on Notification of Victims
Appendix III. Sample DNA Test Brochure
Appendix IV. Working Group on Postconviction Issues
Index
Case Index
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Executive Summary
In recent years, technological progress in DNA (deoxyribonucleic acid) testing has made DNA evidence a predominant forensic technique for identifying criminals when biological tissues are left at a crime scene. DNA testing on samples such as saliva, skin, blood, hair, or semen not only helps to convict, but also serves to exonerate.
The sophisticated technology makes it possible to obtain conclusive results in cases in which previous testing had been inconclusive. Postconviction testing will be requested not only in cases in which DNA testing was never done, but also in cases in which the more refined technology may result in an indisputable answer.
It is hoped this report, Postconviction DNA Testing: Recommendations for Handling Requests, will help participants through the postconviction process. The report is the work of the Working Group on Postconviction Issues, one of five working groups that report to the National Commission on the Future of DNA Evidence. The suggestions are based on the group’s consensus on how defense counsel, prosecutors, judicial officers, victims’ advocates, and DNA laboratories can respond effectively at the various stages of a postconviction request for DNA testing. Cooperation on the part of law enforcement officials may be crucial; materials needed for testing or retesting may be in their possession.
To properly implement the recommendations contained in this report, participants in postconviction DNA proceedings need to consider the category of the case in which the DNA testing is sought and whether participants need to adjust the roles they customarily play in adversarial proceedings.
Case Categories
As information is gathered about a case, it may be helpful to evaluate it in terms of five broad categories, as follows:
Category 1. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner. In these cases, prosecutors and defense counsel should concur on the need for DNA testing.
Category 2. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results would support the petitioner’s claim of innocence, but reasonable persons might disagree as to whether the results are exonerative. The prosecutor and defense counsel may not agree on whether an exclusion would amount to an exoneration or would merely constitute helpful evidence.
Category 3. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results will be inconclusive. Future developments may cause such a case to be reassigned to a different category.
Category 4. These are cases in which biological evidence was never collected, or cannot be found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested. In such a case, postconviction relief on the basis of DNA testing is not possible.
Category 5. These are cases in which a request for DNA testing is frivolous. In these cases, prosecutors and defense counsel should generally agree that no testing is warranted.
When a request for postconviction DNA testing is made, prosecutors should consider whether expeditious discussions with defense counsel might resolve the matter promptly. Defense counsel may not be aware of prior DNA testing that confirmed guilt. In addition, when an inmate is truly innocent, interests converge, so that prosecutors and defense counsel may have to modify their usual adversarial postures.
The chapters in this report deal with applicable law, provide an overview of the applicable science, and contain suggestions on how the various players can best proceed during the stages of a postconviction proceeding. Highlights include:
Legal Issues
This document discusses the kinds of legal issues that have already arisen, and others that will probably develop, as applications for postconviction DNA testing continue to be made and the technology to conduct those tests advances.
The advent of DNA testing raises the question of whether a different balance should be struck regarding the right to postconviction relief. The probative value of DNA testing has been steadily increasing as technological advances and growing databases expand the ability to identify perpetrators and eliminate suspects. The strong presumption that verdicts are correct, one of the underpinnings of restrictions on postconviction relief, has been weakened by the growing number of convictions that have been vacated because of exclusionary DNA results.
DNA evidence also has given rise to thorny legal issues, because postconviction requests for testing do not fit well into existing procedural schemes or established constitutional doctrine. The typical inmate making a postconviction DNA request wants the following: discovery of evidence so that it can be tested, the right to present favorable test results in a judicial proceeding or in an executive proceeding for clemency, and the State to pay for the testing. Currently, the law in many jurisdictions is not clear as to the legal theory that entitles the petitioner to have any of these requests granted, or what the appropriate procedural mechanisms are for making these demands.
Because of this present state of legal uncertainty, litigating postconviction DNA applications often will be unnecessarily complex, expensive, and time consuming, unless prosecutors, defense counsel, and trial courts work cooperatively to assess cases, find the evidence, arrange for DNA testing, and make joint requests for judicial or executive relief when the facts so warrant after a result favorable to the petitioner.
Biological Issues
The technology has undergone rapid change that has increased both its capability to obtain meaningful results from old evidence samples and its discriminatory capabilities. At first, crime laboratories relied primarily on restriction fragment length polymorphism (RFLP) testing, a technique that is very discriminating but requires a comparatively large quantity of good quality DNA (100,000 or more cells). Most laboratories are now shifting to using tests based on the polymerase chain reaction (PCR) method, a kind of molecular copying technique that can generate reliable data from extremely small amounts of DNA in crime scene samples (50 to 100 cells).
Several basic steps are performed during DNA testing regardless of the type of test being done. The general procedure includes: 1) the isolation of the DNA from an evidence sample containing DNA of unknown origin, and generally at a later time, the isolation of DNA from a sample (e.g., blood) from a known individual; 2) the processing of the DNA so that test results may be obtained; 3) the determination of the DNA test results (or types), from specific regions of the DNA; and 4) the comparison and interpretation of the test results from the unknown and known samples to determine whether the known individual is not the source of the DNA or is included as a possible source of the DNA.
Any probative biological sample that has been stored dry or frozen, regardless of age, may be considered for DNA analysis. Types of samples suitable for DNA testing include:
Questioned or unknown samples collected from the crime scene. These include liquid blood and bloodstains, liquid saliva and saliva stains, and liquid semen and dried semen stains deposited on virtually any surface; genital/vaginal/cervical samples collected on swabs, gauze, or as aspirates; rectal/anal swabs, penile swabs; pieces of tissue/skin; fingernails; plucked and shed hairs; and skin cells on drinking vessels or clothing.
Samples from unidentified bodies. These include blood, buccal swabs, hairs, bone, teeth, fingernails, tissues from internal organs, muscle, and skin.
Reference samples from known individuals. These include blood, oral/buccal swabs, and/or plucked hairs.
Samples to use when no conventional reference samples are available. These include clothing where biological fluids may be deposited, bedding, fingernail clippings, cigarette butts, toothbrushes, hairs in razors and hairbrushes, discarded facial tissues or handkerchiefs with nasal secretions, and condoms.
Information that must be obtained on any previous testing includes:
— What items of evidence existed at the time of the original trial and what type of analyses or tests were done on that evidence?
— What are the limitations of the tests that were performed?
— Were the results used at trial, and, if they were not used, what was the reason?
Recommendations for Prosecutors
Requests for postconviction DNA testing may come from a variety of parties, including inmates, their families, defense attorneys, or police. When a request for postconviction DNA testing is received, recommendations for prosecutors include the following:
–Get as much information as possible about the inmate and the case, including defenses proffered at trial and defenses currently claimed.
–Determine whether the case is suited to DNA testing, depending on the category of the case. Evaluate previous DNA testing.
–Provide information to the requestor, including the fact that DNA testing could have a negative effect if the inmate’s DNA testing results are placed in a DNA criminal identification bank and he is identified as a perpetrator of other crimes.
–Throughout the process, consult and notify victim/witness specialists, forensic DNA experts, defense counsel, and prosecutors experienced in DNA technologies and postconviction relief issues.
Recommendations for Defense Counsel
When a request for postconviction DNA testing is received, recommendations for defense counsel include the following:
–Perform extensive screening to determine if the case is suited to DNA testing.
–If a case is determined to warrant DNA testing, conduct an extensive search for evidence, consulting with prosecutors throughout the search.
–Do not contact the victim. It is up to the prosecutor’s office, through its victim services agency, to determine if it is appropriate to inform the victim of testing.
Recommendations for the Judiciary
Trial courts will likely be involved in category 1 and category 2 cases. By issuing orders, the court can play an important role in helping obtain access to evidence prior to testing, which is part of the screening process and helps determine if DNA evidence will be irrelevant to the case.
In the pretesting stage, it is recommended that the court set an informal conference with counsel to discuss issues such as the type of DNA analysis to be used, whether it will be necessary to test the victim’s relatives or third parties, and whether additional samples need to be obtained from the victim.
Once postconviction DNA test results have been obtained, if the results are favorable to the inmate and no alternative explanations exist, the court should be prepared to grant a joint request to vacate the conviction. In the absence of a joint motion, an evidentiary hearing should be set to determine if there is a reasonable probability of a change in the verdict or judgment of conviction.
Recommendations for Victim Assistance
It is extremely important that crime victims and their family members are provided with information and approached with great sensitivity regarding postconviction issues. Notification of requests for DNA testing should be made by the prosecutor through a victim assistance specialist.
Avoid unreasonable and intrusive sample collection. Explain technical aspects of testing and the significance of the samples request. Ensure that information about the location of victims and family members remains confidential.
Provide information about testing results in a timely fashion, in person, if possible.
Recommendations for Laboratory Personnel
A DNA testing laboratory may be requested to serve as a consultant to the attorneys, the defendant, or the judge. The laboratory also has an obligation to perform quality DNA tests and to interpret and report the results accurately and without bias.
The laboratory should test only the amount of sample needed to obtain reliable test results and retain untested samples for possible future testing.
This chapter also discusses choosing a laboratory to perform testing. When selecting a laboratory for DNA testing, issues officials should consider include what DNA tests are available in the laboratory, the laboratory’s experience, and whether the laboratory is accredited.
The Future
DNA testing technology is constantly being improved. For example, convicted offender databases and databases of probative samples from unsolved crimes are being developed rapidly. These databases will be especially helpful for linking previously unrelated cases and for screening a large number of known individuals already convicted of a crime.
The need for postconviction DNA testing will wane over time. Within the decade, DNA testing with highly discriminatory results will be performed in all cases in which biological evidence is relevant, and advanced technologies will become commonplace in all laboratories.
Chapter 1 Introduction
Background
DNA Testing
In little more than a decade, DNA (deoxyribonucleic acid) evidence has become the foremost forensic technique for identifying perpetrators, and eliminating suspects, when biological tissues such as saliva, skin, blood, hair, or semen are left at a crime scene. First introduced into evidence in a United States court in 1986 and the subject of numerous court challenges in the ensuing years, DNA evidence is now admitted in all United States jurisdictions.
Over the years, the technology has undergone rapid change and refinement that has increased both its capability to obtain meaningful results from old evidence samples and its discriminatory capabilities. At first, crime laboratories relied primarily on restriction fragment length polymorphism (RFLP) testing, a technique that is very discriminating but requires a comparatively large quantity of good quality DNA. Now, however, most laboratories are shifting to using tests based on the polymerase chain reaction (PCR) method, a kind of molecular copying technique that can generate reliable data from extremely small amounts of DNA in crime scene samples. Indeed, we are moving into an era where a PCR-based test using mitochondrial DNA can successfully obtain results from a shaft of hair or dried bones. (See discussion in chapter 3.)
In 1986, in the first known use of DNA testing to solve a criminal identification, Colin Pitchfork’s DNA was matched by multilocus RFLP testing to the DNA from semen from two rape/homicides in Narborough, England. Before Pitchfork was identified, a 17-year-old mentally challenged mental hospital kitchen porter, who had confessed to one of the murders, was released after 31/2 months in custody when the DNA results showed the same person raped both girls and eliminated the kitchen porter as the source of the semen. Although homicide detectives originally thought the DNA evidence contradicting the confession was “bloody outrageous,” the kitchen porter was released based on the work of the same people who had put him in custody.
[Details of the investigation, identification, and prosecution of Pitchfork are presented in the novel, The Blooding, by former Los Angeles Police Officer Joseph Wambaugh, Perigold Press, 1989.]
Moreover, law enforcement agencies and legislatures have come to understand the potential of using DNA testing systematically by constructing DNA databases on a State and Federal level that inventory DNA profiles from new unsolved cases, old unsolved cases, and convicted offenders. As these DNA data banks grow in size, society will benefit even more from the technology’s incredible power to link seemingly unrelated crimes and to identify with alacrity suspects who were until then completely unknown to investigators. In the United States, to date, DNA testing is for the most part used in rape and homicide prosecutions. In Great Britain, DNA evidence is also regularly used to obtain burglary convictions. As American data banks expand, DNA testing will undoubtedly be used to solve a broader spectrum of crimes in the United States as well.
A remarkable feature of DNA testing is that it not only helps to convict but also serves to exonerate. [Footnote 1] A 1995 survey of laboratories reported that DNA testing excluded suspects in about one-fourth to one-fifth of the cases. (See the National Institute of Justice publication, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (1996)). These suspects were fortunate: Before the advent of DNA testing they might have been indicted on the basis of an eyewitness’ statement or other evidence and possibly been convicted on the basis of such proof. Numerous instances of erroneous imprisonment have come to light through efforts such as the Innocence Project, which helps convicts obtain postconviction DNA testing. As of this writing, more than 60 convictions in the United States have been vacated on the basis of DNA results. Some of the cases are discussed in the NIJ study cited above. Almost half of the convictions that have been vacated were set aside after 1996. The technological progress that occurred in the 1990s now makes it possible to obtain conclusive results in cases in which previous testing had been inconclusive. Consequently, postconviction testing will be requested not only in cases in which DNA testing was never done, but also in cases in which a newer, more sensitive technology may now be able to furnish a conclusive answer.
The Commission
The documentation of erroneous convictions provided the impetus for Attorney General Janet Reno to establish a National Commission on the Future of DNA Evidence. Five working groups that report to the Commission were organized, and members of the working groups were appointed by the chair of the Commission, Chief Justice Shirley Abrahamson of Wisconsin. As shown in the biographies contained in appendix IV, the members of the Working Group on Postconviction Issues included two defense counsel and two prosecutors, a judge, a victims’ rights advocate, a scientist, and academics, who have had considerable experience with various issues relating to the forensic use of DNA.
The Working Group on Postconviction Issues was directed to respond on an expedited basis in recognition of the need for speed when an innocent person may be imprisoned. The urgency of the task was compounded by the uncertainty surrounding many issues relating to postconviction DNA testing. It is, after all, a scant decade since DNA evidence was first introduced in a criminal proceeding. Consequently, considerable confusion exists about numerous questions, ranging from the preservation of DNA evidence to the applicability of statutes of limitation with regard to newly discovered evidence. Over time, these issues will have to be resolved by legislatures and courts in each jurisdiction. In the interim, it is hoped that the recommendations below will be helpful. The suggestions are based on the working group’s consensus on how defense counsel, prosecutors, judicial officers, victims’ advocates, and DNA laboratories can respond effectively at the various stages of a postconviction request for DNA testing.
These suggestions seek to maximize opportunities for the truly innocent to obtain redress without forfeiting the legal system’s need for finality. For while we realize that claims of factual innocence must be taken seriously, and that we cannot tolerate the incarceration of those not guilty, we must also recognize the desirability of definitive determinations. In an era in which courts are hard put to handle their current dockets and judicial budgets are strained, proceedings should be reopened only in the rare instance when justice so demands. Consequently, State-funded postconviction DNA testing should be granted only when there is a strong probability that the results that can be anticipated from DNA testing would have changed the prior verdict. Furthermore, even aside from concerns of efficiency and economy, closure is essential for victims and their families, for witnesses, and for judicial officers and prosecutors. Finality is a fundamental value that can properly be ignored only in the extraordinary case. Fortunately, DNA analysis now provides us with the ability to do justice in the exceptional situation.
The need for postconviction DNA testing will wane over time. Within the next decade, DNA testing with highly discriminatory results will undoubtedly be performed in the vast majority of cases in which biological evidence is relevant. Furthermore, advanced technologies that are not yet in all laboratories will become commonplace. When that occurs, requests for postconviction relief that seek DNA testing or retesting will for the most part cease.
The chapters that follow present information that is pertinent to postconviction requests for DNA testing. Chapter 2 deals with the applicable law, chapter 3 provides an overview of the applicable science, and chapters 4 through 8 contain suggestions on how prosecutors, defense counsel, judges, victims’ rights advocates, and laboratory personnel might proceed most effectively at various stages of such a postconviction proceeding. To implement these recommendations properly, participants in postconviction DNA proceedings need to consider 1) the category of case in which the DNA testing is sought and 2) whether circumstances require the participants to adjust the roles they customarily play in adversarial proceedings.
A Framework for Analysis
Clearly, postconviction DNA testing will be useful only if a case meets certain criteria, which cannot be determined until sufficient information is gathered. The recommendations in chapter 4 contain numerous suggestions on how to obtain the needed details at different stages of a postconviction proceeding. As information becomes available, it may be helpful to evaluate a case in terms of five broad categories, recognizing that the case may have to be reclassified because of new information, evidence, or technology, and that the boundaries delineating these categories are not always clear or undisputed. These categories are not intended to spell out legal consequences, which may in any event vary somewhat from jurisdiction to jurisdiction. Our aim is to provide the reader with an organizational framework for identifying issues and appropriate steps to take at various stages of an application for postconviction DNA testing. It must also be remembered that technology may vary from jurisdiction to jurisdiction and even within jurisdictions. Laboratories do not uniformly adopt innovations with regard to DNA testing at the same moment in time. Consequently, some techniques that are discussed in chapter 3 may not be available in a particular laboratory.
Category 1 consists of cases in which both the prosecutor and defense counsel concur on the need for DNA testing. In such a case, if the parties cooperate, it should be possible to make the necessary arrangements without recourse to a court and without demanding payment for DNA testing when the inmate is indigent.
In some instances, however, exclusionary test results will not be determinative of innocence, although they may help an inmate obtain a new trial, a pardon, commutation, or clemency. There also are cases in which the prosecutor and defense counsel cannot agree on whether an exclusion would amount to a demonstration of innocence, would establish reasonable doubt of guilt, or would merely constitute helpful evidence. In cases such as these and others, which are assigned to category 2, the assistance of a judicial officer may be essential to determine whether, and under what conditions, testing should be conducted.
Category 3 consists of cases in which, because of the present state of evidence or technology, testing will be inconclusive. Future developments may cause such a case to be reassigned to a different category.
Unfortunately, in category 4 cases, it will be impossible to do any testing because the crime scene samples were never collected, were destroyed, or cannot be found despite best efforts. As chapter 4 relates in considerable detail, a case should never be relegated to category 4 until every possible attempt has been made to ascertain the availability of biological evidence.
Experience indicates that category 5 cases exist in which false claims of innocence are made. In these cases, prosecutors and defense counsel generally agree that no testing is warranted. If an inmate nevertheless persists in pursuing a request for testing, defense counsel should warn the client that the results may substantiate the inmate’s guilt.
The examples that follow of recurring fact patterns illustrative of these categories are not intended to be exclusive.
Category 1. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner.
Example 1: Petitioner was convicted of the rape of a sexually inactive child. Vaginal swabs were taken and preserved. DNA evidence that excludes the petitioner as the source of the sperm will be dispositive of innocence. Note that in a case such as this, the victim’s DNA–also obtainable from the vaginal swab–operates as a control that confirms that the correct sample is being tested. In addition, the victim’s age and sexual status guarantee that the swab contains only biological material related to the crime.
Example 2: Petitioner was convicted of the rape of a woman who reported that she was sexually attacked by two men. Vaginal swabs were taken and preserved. Exoneration of the defendant may depend on whether the DNA test of sperm on the vaginal swabs shows two male DNA profiles, both of which exclude petitioner.
Example 3: Petitioner was convicted of the rape of a sexually active woman who reported that she had engaged in consensual sexual intercourse within 24 hours of the rape. Vaginal swabs were taken and preserved. Exoneration of the defendant may depend on whether a DNA sample from the victim’s consensual partner is available.
Example 4: Petitioner was convicted of a homicide. The evidence showed that the victim, who had been stabbed repeatedly, had resisted fiercely and that a single perpetrator was involved. There were pools of blood leading from the crime scene. Standard blood typing of the crime scene bloodstains showed that some samples were consistent with the blood of the victim and others were consistent with the blood of the petitioner. The blood samples were retained. DNA testing that excludes the petitioner as a source of the bloodstains would be dispositive of his innocence.
Category 2. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, 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 raise a reasonable doubt about guilt. This category also includes cases in which, for policy and/or economic reasons, there may be disagreement as to whether DNA testing should be permitted at all or, for indigent inmates, at State expense. As the recommendations below indicate, the decision on whether this is a case for testing may have to be made by a judicial officer, who may also wish to ensure that defense counsel is available. These cases may raise difficult policy issues about how far postconviction relief should reach. Bearing on the decision to test will be factors such as:
–The other evidence in the case.
–Whether conviction was based on a guilty plea, a no contest plea, or a trial.
–The availability of DNA testing at the time of trial.
–The type of DNA technology available at the time of trial.
–The petitioner’s current status.
Example 5: Petitioner was convicted of a homicide. The prosecution argued in closing that blood on a shirt found at petitioner’s home came from the victim. Standard blood typing had shown a match between the sample and the victim’s blood. DNA testing that excludes the victim as a source of the bloodstains might be helpful to petitioner’s claims but does not prove that he was not guilty. How a case such as this should be treated will depend on the role the bloody shirt played at petitioner’s trial and the strength of the other evidence against him. The prosecutor and defense counsel may not concur in their evaluations.
Example 6: Petitioner is presently incarcerated for a crime for which biological evidence is irrelevant. Petitioner had, however, been convicted of a prior crime in which biological evidence was collected and is still available. Evidence of petitioner’s conviction of that prior crime had been utilized in connection with the crime for which he is incarcerated. The conviction may have been used to enhance sentencing; as one of the strikes in a “three strikes and you’re out” jurisdiction; in connection with impeachment or the threat of impeachment; or as substantive proof, either as prior crimes evidence, or as evidence that satisfies a rule such as Rule 413 or 414 of the Federal Rules of Evidence, which make admissible in sexual assault cases evidence that defendant previously committed a sexual assault. If DNA testing were to exonerate him in connection with the prior crime, it might be helpful to petitioner.
Example 7: Petitioner has been released from prison after serving time for a crime in which biological evidence was collected. Petitioner claims that he cannot get a job because of his criminal record. DNA evidence that would lead to the expungement of the prior conviction might be helpful to the petitioner even though he is no longer incarcerated. Category 3. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, the results will not be relevant to a guilt or innocence determination.
Example 8: Petitioner is presently incarcerated for a gang rape. The victim testified that seven persons were involved but that she is not sure that all actually engaged in sexual intercourse. If the vaginal swabs that were preserved are tested and petitioner’s DNA profile is not found, the significance of the results will be minimal. It should be noted, however, that if other participants in the rape can be identified through DNA testing and petitioner can show the unlikelihood that he ever had any contact with the other participants, this case may fall into category 1 or 2.
Example 9: Biological evidence exists that cannot be analyzed with current technology.
Category 4. These are cases in which biological evidence was never collected, or cannot be found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested. In such a case, postconviction relief on the basis of DNA testing is not possible.
Category 5. These are cases in which a request for DNA testing is frivolous.
Example 10: DNA testing results will be irrelevant, for instance, when petitioner testified about a consent defense in a rape case, or a self-defense claim in a homicide prosecution. If petitioner raised such a defense for tactical reasons but did not testify, the case may belong in a different category. A further caveat is that, even if petitioner testified, a judicial officer may have to rule on claims by petitioner, such as lack of capacity (insanity or mental retardation), or that the defense was coerced.
Example 11: The trial transcript discloses the existence of other evidence that makes petitioner’s claim meaningless, as in a burglary conviction where petitioner was apprehended at the scene of the crime.
The Roles of the Participants
The recommendations in chapter 4 presuppose cooperation and concern on the part of those who play a part in handling postconviction requests for DNA testing. These attributes are essential in achieving the goals of exonerating the innocent while preserving the judicial system’s needs for integrity, finality, and efficiency. When an inmate is truly innocent, or the facts are such that favorable testing results would create 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. The discussion below considers the factors that affect participants’ roles at various stages of postconviction requests for DNA testing.
The Role of Prosecutors
Prosecutors understand that DNA testing can demonstrate actual innocence in a category 1 case. 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 assists law enforcement because it may identify the true culprit in the case being challenged, clear up unsolved crimes, and prevent future criminal acts.
Consequently, some prosecutors may opt not to take a traditional adversarial stance when their office receives a request for postconviction DNA testing. Their response will be affected by the category of case, their familiarity with DNA testing, and the resources of their office. (See chapter 4, Recommendations for Prosecutors.) Prosecutors who are knowledgeable about DNA testing and have ready access to laboratory facilities and expertise may feel comfortable initiating DNA testing themselves instead of waiting for defense counsel to take the laboring oar. On the other hand, a prosecutor who has had no previous experience with DNA and/or has inadequate technical assistance may respond to requests for DNA testing by seeking assistance from the legal community and/or scientists with DNA testing expertise, or by making appropriate referrals to defense counsel or to projects that handle actual innocence claims.
Even the prosecutor who basically treats requests for DNA testing like all other applications seeking postconviction relief should adopt a cooperative attitude with regard to certain matters or truly innocent persons will be unable to substantiate their claims. Except in the case of patently frivolous category 5 claims, use the following as a guide:
–Prosecutors should not delay responding to a request for DNA testing. Immediate action may be required because the statute of limitations may bar future proceedings. (See discussion in chapter 2.)
–Once a request for DNA testing is made, prosecutors should take affirmative steps to prevent the destruction of potentially relevant evidence (e.g., material from the crime scene or standards from victims or third parties) that may or may not have been tested. Immediate action may be needed when there is a policy authorizing the routine destruction of evidence.
–Prosecutors should use their best efforts to locate the crime scene samples. The prosecutor who handled the case originally may be the only person who knows where they are.
Furthermore, prosecutors should consider at the outset whether expeditious discussions with defense counsel might not resolve the matter promptly. Defense counsel may be unaware of prior DNA testing that confirmed guilt. The evidence may not have been introduced at the original trial because restrictions on the admissibility of DNA evidence existed at the time, or because the abundance of other evidence convinced the prosecution that DNA evidence would be superfluous and needlessly expensive.
Defense counsel may be raising an issue about prior DNA testing that could be resolved if the prosecutor showed defense counsel underlying laboratory notebooks or other materials that the jurisdiction does not ordinarily disclose. In such instances, prompt disclosure will ultimately save time and money.
The Role of Defense Counsel
Defense counsel should appreciate that convictions are rarely reopened and that a noncontentious attitude may expedite the location of needed biological samples and accelerate the testing process that is an innocent client’s best hope for relief.
On the other hand, defense counsel must also recognize and inform their clients that truth may have a price and that inculpatory results will have to be disclosed to the prosecution. Convicted felons are not entitled to testing without risking the consequences of false claims of innocence.
The Role of Law Enforcement Personnel
Cooperation on the part of law enforcement officials may be crucial; materials needed for testing or retesting may be in their possession. Consequently, they can assist in:
–Finding the evidence that was sent to the laboratory for testing.
–Identifying and locating other evidence that is now testable.
–Preserving the evidence.
The Role of the Court
Judges may feel compelled to take a proactive stance to protect the inmate seeking relief if the prosecution and defense are refusing to cooperate. A court may be especially likely to exercise its discretion in the interests of justice in a potential category 1 case, particularly if the court fears that the passage of time may make it impossible to ascertain the validity of a claim of actual innocence.
The judge’s assistance may be sought in connection with such matters as locating and preserving evidence, obtaining discovery from laboratories, and compelling third parties to provide samples for elimination testing. (See chapter 6, Recommendations for the Judiciary.)
The court might also consider whether to exercise its discretion to appoint an expert to assist the court in a case that presents disputed, complex, technical issues relating to DNA testing or interpretation.
The Role of the Victims’ Advocate
The role of the victims’ advocate in postconviction proceedings is essential and complex. The advocate’s usual role is to provide support, which will likely be needed during a postconviction proceeding as it may be extremely traumatic for surviving victims and their families to learn that a person found guilty is now attempting to vacate the conviction. The early involvement of victims’ advocates lessens the chance of victims and their families making this discovery through the media and ensures that they are kept informed and treated with appropriate concern and respect.
In category 1 cases, advocates may also have to prepare their clients for the possibility that the inmate will be exonerated. If this occurs, advocates face the difficult task of providing support for the person whose misidentification of the culprit may have been the chief evidence leading to the original guilty verdict.
Advocates will at times be called upon to persuade a victim to agree to DNA testing even though the victim is convinced of the accuracy of the identification he or she made at the inmate’s trial. For exclusionary purposes, samples may also have to be tested from persons who were engaged in sexual relations with the victim at the relevant time. Victims may be reluctant to provide names or to urge these persons to cooperate. In order to expedite postconviction proceedings, victims’ advocates must make victims appreciate the desirability of cooperating because DNA testing may lead to the apprehension of the person who was truly guilty and prevent future criminal acts.
The Role of Laboratory Personnel
The public or private laboratory skilled in DNA testing can assist in the postconviction process in a number of ways, including:
–Agreeing to conduct some pro bono testing at the request of a judicial officer, prosecutor, defense counsel, or project.
–Making its personnel available to assist participants in a postconviction proceeding who lack adequate technical expertise.
Chapter 2 Legal Issues
Background
An understanding of the novel legal issues posed by postconviction requests for DNA testing requires an appreciation of the traditional legal approach to postconviction relief that predated the forensic use of DNA typing. The judicial system provided two principal avenues of relief for a convicted defendant who had exhausted the process of appeal. The inmate could seek: 1) a new trial if the conviction rested on an error of fact contradicted by newly discovered evidence, or 2) a writ of habeas corpus in State or Federal court (after efforts to obtain relief in State court had
been exhausted). In addition, it was conceded that the limited circumstances in which postconviction relief was available might cause some cases in which guilt was erroneously determined to fall between the cracks. In such a case, an inmate could still seek executive clemency as a means of correcting a miscarriage of justice.
Under common law, the window during which relief could be sought on the grounds of newly discovered evidence was extremely narrow, limited to the term of the court in which the judgment of conviction was entered. Most States have since expanded the applicable time bars, but at this time only 15 States permit new trial motions based on newly discovered evidence to be made more than 3 years after conviction. This restrictive approach rests on:
–The strong presumption that the verdict is correct because the accused was found guilty by a jury of peers after a trial conducted with full constitutional protections.
–The need for finality. (See discussion in chapter 1.)
–The recognition that the likelihood of more accurate determinations of guilt or innocence diminishes over time as memories fade, witnesses disappear, and the opportunity for perjury increases.
–The need to conserve judicial resources by not opening the floodgates to meritless and costly claims.
Federal habeas jurisprudence traditionally assumed that relief could not be grounded on an erroneous finding of guilt unless a constitutional error had occurred at the defendant’s trial. This conclusion–that proof of actual innocence does not alone suffice to set aside a prior conviction–views the States as responsible for correcting faulty adjudications unaccompanied by a constitutional violation. It was justified by the assumption, mentioned above, that questions of guilt or innocence become more uncertain with the passage of time, so that accurate determinations are considerably less likely at a new trial.
The Impact of DNA Testing
The advent of DNA testing raises the question of whether a different balance ought to be struck regarding the right to postconviction relief. The results of DNA testing do not become weaker over time in the manner of testimonial proof. To the contrary, the probative value of DNA testing has been steadily increasing as technological advances and growing databases amplify the ability to identify perpetrators and eliminate suspects. (See
chapter 3.) We already have seen cases in which an exclusionary DNA test can prove actual innocence. (See example 1 in chapter 1.) In other cases, DNA results may raise a reasonable doubt about guilt. The strong presumption that verdicts are correct, one of the underpinnings of restrictions on postconviction relief, has been weakened by the growing number of convictions that have been vacated because of exclusionary DNA results. On the other hand, the need for finality and the conservation of judicial resources remain important concerns, and there are numerous types of cases in which the results of DNA testing would be debatable or inconclusive. (See A Framework for Analysis in chapter 1.) To date, however, only in New York and Illinois have State legislatures restructured the right to postconviction relief now that the possibility exists in some cases that more accurate and definitive adjudications can be achieved than at the original trial. [Footnote 2]
In addition to challenging the assumptions that support the structure of postconviction relief, DNA evidence also has given rise to thorny legal issues because postconviction requests for testing do not fit well into existing procedural schemes or established constitutional doctrine. As an initial matter, postconviction procedures in both State and Federal court assume petitioners already have, in hand, new evidence that they claim proves innocence; postconviction DNA cases, however, invariably begin with applications to find and test evidence that is, and has been, in the control of the prosecution since the time of the original trial. The typical inmate making a postconviction DNA request wants: 1) discovery of the evidence so that it can be tested, 2) the right to present favorable test results in a judicial proceeding or in an executive proceeding for clemency, and 3) the State to pay for the testing. At this point in time, the law in many jurisdictions is not clear as to the legal theory that entitles the petitioner to have any of these requests granted, or what the appropriate procedural mechanisms are for making these demands. Frequently, these issues are intertwined, and petitioners make omnibus motions in which they raise all potentially relevant grounds for relief together.
Because of this present state of legal uncertainty, litigating postconviction DNA applications often will be unnecessarily complex, expensive, and time consuming, unless prosecutors, defense counsel, and trial courts work cooperatively to assess cases, find the evidence, arrange for DNA testing, and make joint requests for judicial or executive relief when the facts so warrant after a result favorable to the petitioner. That is why the recommendations in this report are designed to suggest how postconviction DNA applications can be handled expeditiously, ethically, flexibly, and lawfully by all parties, in any jurisdiction, with little or no need for judicial intervention. [Footnote 3]
The purpose of this chapter is to identify the kinds of legal issues that have already arisen, and others that will probably develop, as applications for postconviction DNA testing continue to be made and the DNA technology available to conduct those tests advances. No attempt has been made to set forth in full the law of any particular jurisdiction.
Can a Right to Discovery Be Inferred From Statutes Providing for Postconviction Relief?
Courts do not agree on whether a request for DNA testing in a postconviction proceeding implies a right to discovery even if the statute is silent about such a right. Compare People v. Callace, 573 N.Y.S.2d 137, 138 (Suffolk County Ct. 1991) (finding discovery right pursuant to statute authorizing vacation of convictions on the basis of newly discovered evidence; decision predates statute discussed in note 2) and Jenkins v. Scully, No. CIV-91-298E, 1992 WL 32342, at *1 (W.D.N.Y. Feb. 11, 1992) (State ordered to produce evidence for DNA testing pursuant to rules governing habeas corpus), with Ohio v. Wogenstahl, No. C-970238, 1998 WL 306561, at *1 (Ohio Ct. App. Dist. 1 June 12, 1988) (request for DNA retesting because trial results were inconclusive is in the nature of a discovery request that the court is not required to grant in a
postconviction proceeding).
Is There a Constitutional Right to Testing Under the Brady Doctrine?
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that a defendant has a constitutional right at or before trial to be informed of exculpatory evidence in the hands of the State. A number of courts have extended Brady to requests for DNA testing even when the request is made after trial and although it is potentially exculpatory evidence that is being sought. In Arizona v. Youngblood, 488 U.S. 51 (1988), petitioner claimed that his conviction should be vacated because the State before trial had destroyed rectal swabs containing sperm which could have demonstrated his innocence if subjected to serological testing. Although the Supreme Court found that the conviction would not be overturned without proof that the swabs were destroyed in bad faith, nothing in the opinion suggests that petitioner would not have been entitled to testing if the swabs now existed.
These Supreme Court decisions provide an avenue for access to testing even when no formal discovery procedures exist as part of the postconviction statutory scheme in that jurisdiction. But see Wogenstahl,1998 WL 306561, at *2-*3 (not Brady violation to refuse request for testing). While the weight of reported cases acknowledges a right of access to the evidence for purposes of DNA testing on Brady grounds, there are many unreported, summary decisions in which trial courts have simply dismissed applications for postconviction testing without reaching any Brady-based constitutional arguments.
An early case applying Brady is Matter of Dabbs v. Vergari, 570 N.Y.S.2d 765 (Sup. Ct. Westchester County 1990), in which an inmate requested access to perform DNA testing as a prelude to a possible motion to vacate the conviction based on newly discovered evidence. The prosecution opposed the motion on the grounds that no statutory right to the requested postconviction discovery then existed in New York; that the results of proposed testing were speculative; and that granting the petitioner’s request would prompt other convicted sex offenders to demand DNA testing. The Dabbs court, relying on Brady, supported its decision to allow the requested testing as follows:
–[A] defendant has a constitutional right to be informed of exculpatory information known to the State . . ..
–A corollary to the duty of disclosure is the duty to preserve exculpatory material . . ..
–Courts have dismissed indictments after convictions because of destruction or loss of evidence by the police when that police conduct has deprived a defendant of material of high exculpatory potential . . ..
–[W]hile it is unclear what such testing will ultimately reveal, [defendant] has demonstrated an adequate foundation for the testing by showing that the victim’s panties, a gauze pad, and rape tests slides have high exculpatory potential.
Dabbs, 570 N.Y.S.2d at 767-68 (citations omitted). DNA testing ultimately exonerated Dabbs and his conviction was vacated. See People v. Dabbs, 587 N.Y.S.2d 90, 93 (N.Y. Sup. Ct. 1991).
In State v. Thomas, 586 A.2d 250 (1991), the court rejected lateness arguments from the prosecution and held that DNA evidence is such a potentially powerful tool to demonstrate actual innocence that even the most unyielding procedural bars must give way:
Under these circumstances, consideration of fundamental fairness demands that the [DNA] testing of this now 7-year-old rape kit material be done now . . .. Our system fails every time an innocent person is convicted, no matter how meticulously the procedural requirements governing criminal trials are followed. That failure is even more tragic when an innocent person is sentenced to a prison term . . .. We regard it as . . . important to rectify that failure . . .. There is a possibility, if not a probability, that DNA testing now can put to rest the question of defendant’s guilt . . .. We would rather [permit the testing] than sit by while a [possibly] innocent man . . . “languishes in prison while the true offender stalks his next victim.”
Thomas, 586 A.2d at 253-54 (citations omitted).
Other cases embracing a Brady analysis are: Sewell v. State, 592 N.E.2d 705, 707-708 (Ind. Ct. App. Dist. 3 1992) (inmate allowed access to rape kit for DNA testing 10 years after conviction notwithstanding the absence of discovery procedures; “Advances in technology may yield potential for exculpation where none previously existed. The primary goals of the court when confronted with a request for the use of a particular discovery device are the facilitation of the administration of justice and the promotion of the orderly ascertainment of truth.”); Commonwealth v. Brison, 618 A.2d 420, 423 (Pa. Super. Ct. 1992) (“where evidence has been preserved, which has high exculpatory potential, that evidence should be discoverable after conviction”); Mebane v. State, 902 P.2d 494, 497 (Kan. Ct. App. 1995) (requests for DNA testing can be granted under Brady when proper showing made).
Is There a Constitutional Right to Demonstrate Actual Innocence That Provides a Basis for Access to Testing Through Habeas Corpus Review in Federal or State Court?
In Herrera v. Collins, 506 U.S. 390 (1993) the Supreme Court addressed the question of whether it would violate the 14th Amendment’s due process clause or the Eighth Amendment’s prohibition against cruel and unusual punishment to execute an inmate who claimed he could prove, through newly discovered evidence proffered in a Federal habeas petition, that he was “actually innocent.” Herrera had to present his newly discovered evidence in a Federal habeas petition because he was time barred from pursuing the claim in the Texas State courts.
In a plurality opinion, the Supreme Court rejected Herrera’s habeas petition on the grounds that his factual showing was insufficient, but strongly suggested that it would violate the Constitution to punish someone who could make a “truly persuasive” showing of actual innocence. [Footnote 4] See Herrera, 506 U.S. at 417 (plurality opinion of Chief Justice Rehnquist). See also 506 U.S. at 427 (O’Connor, J., concurring). Justice White, in a concurring opinion, and Justice Blackmun, writing for Justices Souter and Stevens in a dissenting opinion, set somewhat lower thresholds: According to Justice White, relief should be granted when, in light of the newly discovered evidence, “no rational trier of fact could [find] proof beyond a reasonable doubt.” 506 U.S., at 429 (citation omitted); and Justice Blackmun concluded “that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent.” 506 U.S. at 442.
The discussion in Herrera about “actual innocence” is quite hypothetical. Justices Scalia and Thomas expressed doubt that the Court would ever again have to confront this issue, “since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.” 506 U.S. at 428. Several justices pointed to the evidential infirmities that occur over time as making it unlikely that a petitioner could make the requisite showing. This assumption was certainly reasonable under the facts of Herrera, which vividly illustrate why courts fear stale post-trial claims of innocence. [Footnote 5]
Now, however, in some cases the possibility of demonstrating actual innocence has moved from the realm of theory to the actual with the availability of postconviction DNA testing. (See examples in chapter 1.) The opinions in Herrera may, therefore, provide a reasonable basis for an inmate who cannot obtain relief in State court to seek Federal habeas relief, even though, as noted in Herrera, it had long been the rule that newly discovered evidence claims do not state a ground for Federal habeas relief absent an independent constitutional violation occurring in the underlying State criminal proceeding. [Footnote 6] Herrera, 506 U.S. at 399. Indeed, Federal courts have been quite willing to order DNA testing to supplement independent constitutional claims. See, e.g., Toney v. Gammon, 79 F.3d 693, 700 (8th Cir. 1996); Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997); Jenkins, 1992 WL 32342, at *1.
Are There Other Bases on Which Petitioners Can Obtain Access to Testing?
Freedom of Information Act (FOIA) statutes in many States are very broad and frequently permit access to “tangible” objects that might embrace the kind of biological evidence needed for postconviction DNA testing. Inmates seeking access to evidence have been pursuing State FOIA claims as separate actions or in conjunction with other postconviction motions. These FOIA requests specify that DNA testing will not be performed on the evidence, without court approval, unless the samples can be divided to permit replicate testing. There are no reported decisions to date on such FOIA requests.
The Innocence Project also has claimed a right of access to testing under section 1983 of the Civil Rights Act on the ground that courts act under the color of State law when they refuse access to testing. As of this writing, there are no reported decisions that discuss this theory.
What Kind of a Showing Must the Petitioner Make to be Afforded Access to Testing?
A petitioner who is proceeding pursuant to a newly discovered evidence motion must meet the standard set forth in the governing statute. The precise formulation differs from jurisdiction to jurisdiction. In New York, the newly discovered evidence must be “of such a character as to create a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant[.]” NY Crim. Pro. section 440.10 (1)(g) (McKinney 1994). Other States say the newly discovered evidence should provide “conclusive proof” that there would have been a different verdict. See Wilkes, State Postconviction Remedies and Relief, section 1-13, at 31-32 (1996 ed.), section 1-13, at 30-32. Some States use, either as the exclusive ground for relief or as an additional, “catch-all” provision, a general “interests of justice” standard as suggested by section (1)(a)(5) of the 1980 Uniform Post-Conviction Procedure Act, “evidence, not previously presented or heard, exists requiring vacation of the conviction or sentence in the interest of justice.” See Wilkes, supra, app. B, at 905.
Courts that afford access to testing via Brady motions, (see discussion supra), also require some showing by the petitioner that in light of the evidence introduced at trial DNA testing could somehow have affected the outcome. The reported cases report a variety of tests and conditions.
Clearly the courts perform the kind of analysis suggested in A Framework for Analysis in chapter 1 in determining whether access to testing is warranted. See, e.g., People v. Gholston, 697 N.E.2d 375, 379, (Ill. App. Ct. 1998) (refusing testing where multiple defendants participated in the sexual assault, one or more of whom may have ejaculated, and there was no evidence that defendant ejaculated; defendant had confessed to being at the scene); Mebane, 902 P.2d at 497 (will only allow testing if case involved a single perpetrator and trial evidence was weak); Thomas, 586A.2d at 254 (“when the State’s proofs are weak, when the record supports at least a reasonable doubt of guilt, and when there exists a way to establish guilt once and for all . . .”).
The concurring and dissenting opinions in Herrera discuss various standards that might be required for showing “actual innocence.” (See discussion supra.)
May Consensual Partners Be Required to Provide Elimination Samples?
On occasion, when an application for postconviction DNA testing is made, the prosecution opposes relief by taking a different factual position on the biological evidence than it did at trial. Most frequently, it claims in rape cases that no DNA testing needs be performed when the eyewitness identification is strong; the sperm on vaginal swabs or underwear, attributed to the defendant at trial, may have come from a prior consensual partner of the victim; and the defendant may have failed to ejaculate. While this argument has succeeded in some unreported cases, published decisions reject this position as a reason not to do initial testing that could exclude an inmate, or, once an inmate has been excluded, to deny a new trial without conducting a test that shows the prior consensual partner is, in fact, the source. See, e.g., Commonwealth v. Reese, 633 A.2d at 206, 209-10 (Pa. Super. Ct. 1995).
Our recommendation is that “elimination” samples from third parties may be needed in such a case but that they normally should not be sought until after an exclusion has been obtained from DNA testing. This is advisable both to minimize stress for victims and third parties, as well as to create a stronger legal basis for obtaining the “elimination” samples once it becomes necessary to do so.
In fact, elimination samples from third parties have routinely been obtained at the request of prosecutors, courts, and governors in more than a third of the postconviction DNA exonerations to date. The samples have generally been gathered on a voluntary basis, although in more than a few instances judges have made it clear to prosecutors that, in light of the DNA exclusion, the inmate’s judgment would be vacated if the third-party samples were not produced. And as previously noted, in one reported decision, Commonwealth v. Reese, 663 A.2d at 209-10, the trial court made it clear that the potential need for third-party elimination samples was not, in and of itself, a basis not to permit access to evidence and potentially exculpatory DNA testing. Otherwise, we have not identified any reported cases that directly deal with a third party contesting the taking of an elimination sample in the context of postconviction DNA exclusion.
In a number of reported paternity cases, courts have compelled third-party relatives to submit to DNA testing for the purpose of establishing paternity. [Footnote 7] Similarly, the U.S. Supreme Court has upheld the issuance of grand jury subpoenas, based upon a showing of relevancy to the investigation, not probable cause, to obtain “nontestimonial” evidence [Footnote 8] such as voice exemplars from third parties for “elimination” purposes. See United States v. Dionisio, 410 U.S. 1, 5-7 (1973).
How Do Time Limits in Motions for a New Trial Based Upon Newly Discovered Evidence Affect Requests for Postconviction DNA Testing?
All States provide some type of statutory scheme, common law authority, or court rule for postconviction relief based upon “newly discovered evidence of innocence.” “Newly discovered evidence” is generally construed to mean evidence that was not available at the time of trial, or evidence that counsel could not obtain with the exercise of due diligence.
Among the States, time limits on motions for a new trial based on newly discovered evidence of innocence vary considerably. [Footnote 9] While some States impose no time limits or make them waivable, a substantial number require the motion to be made within 60 days after judgment. Another sizeable group of States calls for motions to be made within 1 to 3 years. Rule 33 of the Federal Rules of Criminal Procedure has a 2-year time limitation for new trial motions based upon newly discovered evidence. These statutes can impose substantial barriers to gaining access to DNA postconviction testing or to being allowed to introduce favorable results. Even when a postconviction motion based on newly discovered evidence would lie, prosecutors still have successfully defeated the motion in some cases by using a laches argument. In Ziegler v. State, 654 So. 2d 1162 (Fla. 1995), although the Florida Supreme Court recognized that Florida’s 2-year statute of limitations would not bar Ziegler from obtaining a particular kind of DNA test that had not been available at the ti me of his conviction (1976), the court nonetheless denied his 1994 application because the DNA test Ziegler wanted to perform became “available” in 1991 and Ziegler, who had a postconviction motion pending on other grounds in 1991, did not seek the DNA test within the 2-year time limit. The Florida Supreme Court also found that the DNA test Ziegler was seeking would not produce sufficient exculpatory evidence to vacate the conviction even if the results were favorable to Ziegler. Ziegler, 654 So. 2d at 1164. The “laches” theory enunciated in Ziegler has recently been followed, although criticized in a dissent, by a lower Florida appellate court considering the DNA request of an indigent inmate who file d 2 years after the test was arguably “available” but whose conviction would probably be vacated if the test results were favorable. See Dedge v. State, 723 So. 2d 322, 324 (Fla. Dist. 5 Ct. App. 1998). One can expect further litigation in Florida, and in any other jurisdiction adopting the laches theory enunciated in Ziegler, about when new types of forensic DNA testing first became “available” as a scientific matter, and when, as a practical matter, such testing was truly “available” to indigent defendants.
It is important to note, however, that in addition to providing for new trial motions based on newly discovered evidence, many States have their own habeas statutes, court rules, and/or “interests of justice” case law that permit courts to extend or override time bars on newly discovered evidence motions. For example, in Mississippi there is explicit statutory authority to grant an untimely new trial motion “in the interest of justice” where the prisoner can produce evidence “not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.” Miss. Code. Ann. section 99-39-23 (1998).
Texas, in contrast, has “catch-all” rules that implicitly permit courts to override time bars to post-trial, newly discovered evidence motions. See Tuffiash v. State, 878 S.W.2d 197, 198 (Tex. Crim. App. 1994) (out of time post-trial motion to vacate conviction based upon newly discovered evidence granted because “[i]n an appropriate case, for good cause shown, Rules 2(b) and 80(c) of the Texas Rules of Appellate Procedure allow this court to suspend requirements and provisions of any rule in a particular case on application of a party or on our own motion and may order proceedings in accordance with our direction” (citation omitted)). [Footnote 10]
Even without statutes that explicitly authorize exceptions to time-barred applications, courts have, in the interests of justice, vacated convictions and released inmates when newly discovered DNA evidence demonstrates innocence and the prosecution joins in the motion. [Footnote 11] The Supreme Court of South Dakota recently turned aside the prosecutor’s timeliness objection and authorized access to vaginal swabs for postconviction testing, Davi v. Joseph Class, Warden, unpublished decision, case No. 19844, Order of Remand (S.D. 1998), although the Court did not issue a written opinion on the subject. See also Jenner v. Dooley, No. 204-28, 1999 WL 105032 at *8, *9 (S.D. Feb. 10, 1999) (setting out guidelines for when postconviction scientific analysis may be authorized.
Finally, it has been suggested that in the State courts petitioners with strong newly discovered evidence should consider making constitutional arguments based on Herrera as a direct challenge to the constitutionality of State statutes of limitations that would bar “actual innocence” claims. See Vivian Berger, Herrera v. Collins: The Gateway of Innocence for Death-Sentenced Prisoners Leads Nowhere, 35 Wm. & Mary L. Rev. 943, 1012-15 (1994); Holmes v. Honorable Court o f Appeals for the Third District, 885 S.W.2d 389, 397-98 (Tex. Crim. App. 1994) (en banc) (habeas corpus appropriate vehicle for raising factual innocence claim).
Is a Petitioner Entitled to Testing in Order to Pursue Executive Clemency if the Results are Favorable?
Notwithstanding the narrow opening it arguably opened in Herrera for Federal habeas “actual innocence” claims, the Supreme Court stressed that executive clemency “is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where the judicial process has been exhausted.” 506 U.S. at 411-12. Clemency is supposed to act as a “fail safe” mechanism, a protection against the “unalterable fact that our judicial system, like the human beings who administer it, is fallible.” Id., at 415. In fact, executive clemency has been a mechanism for obtaining postconviction DNA exonerations, particularly in Virginia, where newly discovered evidence motions are time barred 21 days after final judgment. Significantly, however, most of the Virginia proceedings that culminated in executive clemency began in court with successful requests for access to court exhibits containing critical biological evidence that was ultimately subjected to DNA testing. See NIJ Report, supra, note 3 at 57, 72.
Because clemency is “an act of grace” by the executive branch, not a right (see Herrera, 506 U.S. at 413), the issuance of a grant is highly discretionary. Some governors work with formal advisory boards, some do not, and the standards of review governors employ are usually informal, if not unabashedly susceptible to political considerations. See Berger, supra, at 966-67; Bandes, supra note 6, at 520-21. As a result, the Supreme Court has been extremely reluctant to examine, much less question, the fairness or operation of State executive clemency systems. See Ohio Adult Parole Authority v. Woodward, 523 U.S. 272 (1998); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981).
Moreover, it must be remembered that the vast majority of clemency decisions turn on forgiveness for an act committed, extraordinary rehabilitation, or other considerations that do not involve reevaluation of the guilt or innocence decision. Consequently, in the wake of Herrera, commentators studying executive clemency have identified statutory limitations, lack of money, investigatory powers, and/or expertise and have expressed serious doubt as to whether State clemency systems are doing an adequate job of assessing claims of actual innocence and wrongful conviction. See Victoria Palacios, Faith in Fantasy: The Supreme Court’s Reliance on Commutation to Ensure Justice in Death Penalty Cases, 49 Vand. L. Rev. 311, 369-72 (1996); Henry Pietrkowski, The Diffusion of Due Process in Capital Cases of Actual Innocence After Herrera, 70 Chi.-Kent L. Rev. 1391, 1401-13 (1995). Therefore, inmates who have not yet obtained exculpatory postconviction DNA evidence should be wary about seeking access to the relevant biological case material or permission to conduct DNA tests from officials within the executive clemency system.
Another unresolved issue is whether Herrera supports a due process “access” argument for an inmate who is precluded from presenting newly discovered DNA evidence of innocence in a State court but seeks, in the alternative, DNA testing to pursue executive clemency. The reasoning of the Herrera decision, with its emphasis on executive clemency as the historic safety valve and remedy for those who cannot get newly discovered evidence of innocence heard by the courts, suggests that States should not be able to both shut the courthouse door with a time bar and arbitrarily obstruct an inmate’s opportunity to enter the executive clemency system armed with exculpatory DNA test results. To buttress this argument, inmates should be prepared to show the State will not be prejudiced in any ongoing cases by the testing, and that they will pay the costs of testing, as well as any reasonable administrative expenses that arise in the handling of the evidence. Again, mindful of the Supreme Court’s recent ruling in Ohio Adult Parole Authority v. Woodward, 523 U.S. 272 (1998), this argument should not be cast as a challenge to the fairness or procedures of a State’s executive clemency system, but rather as the fair exercise of judicial power to obstruct or permit access to case evidence in the possession of the court or other criminal justice agencies.
Is an Indigent Petitioner Entitled to Have the State Pay for Postconviction DNA Testing?
The special New York and Illinois postconviction DNA statutes [Footnote 12] require the State to pay for testing if the petitioner is indigent and there is a reasonable basis to believe that postconviction DNA testing could produce substantial evidence of innocence. There are no reported decisions as of this date mandating that indigent petitioners receive funds for postconviction DNA testing that could establish innocence. It is, however, our experience that once a court decides that postconviction DNA testing should be performed, or the prosecution and defense agree that testing is appropriate, funds for testing have been provided either by the court (just as it funds pretrial expert fees for an indigent defendant), by the public defender’s office, or by the prosecution. Increasingly, as State and local crime laboratories develop the capacity to do DNA testing, postconviction DNA testing is simply referred by all parties to the public laboratory, which does it “free.” Nonetheless, concern that the “floodgates” would be opened, and the public treasury depleted, by demands for postconviction DNA testing has been cited informally and formally as a factor in judicial and prosecutorial rejection of re quests for postconviction DNA testing even in the category 1 and category 2 cases discussed in chapter 1. Payment for postconviction DNA testing by indigent petitioners is, therefore, likely to emerge as a significant issue for litigation. A related question is whether an indigent petitioner is entitled to funds for an expert needed to interpret the testing results.
Two Supreme Court cases bear on the payment issue. In Ake v. Oklahoma, 470 U.S. 68, 83 (1985) the Court held that an indigent defendant had a due process right to the services of a psychiatric expert when the expert’s testimony would be “a significant factor in [the] defense.” When expert assistance to an indigent provides “a reasonable chance of success,” the Court reasoned, “the potential accuracy of the jury’s determination is so dramatically enhanced” that “the State’s interest in its fisc must yield.” Id. Petitioners who can show that they have a “reasonable chance of success” to prove innocence through postconviction DNA testing, a technology that “dramatically enhances” the accuracy of fact-finding, even decades after a verdict, will obviously find useful language in Ake. Nevertheless, there is a significant legal difference between a request to fund relevant DNA testing in a pretrial posture– where it is surely constitutionally required–and a post-trial application after the petitioner has been found guilty.
A second case, Little v. Streater, 452 U.S. 1 (1981), has relevance to the payment issue because it recognizes the constitutional significance of a technological advance that can definitively alter fact determinations. In Streater, the Court held that an indigent Connecticut inmate who was being sued in a paternity action had a right, under the due process and equal protection clauses, to funding for blood grouping tests because “[u]nlike other evidence that may be susceptible to varying interpretation or disparagement, blood test results, if obtained under proper conditions by qualified experts, are difficult to refute.” 452 U.S. at 14. “Thus,” the Court emphasized, “access to blood grouping tests for indigent defendants such as appellant would help to insure the correctness of paternity decisions in Connecticut.” Plainly, the kind of conclusive results DNA testing can generate in a criminal case are directly analogous to blood group paternity tests, but a postconviction application for DNA testing, cutting against the State’s interest in preserving the “finality of judgments,” is still a more difficult constitutional posture than the pretrial, “quasi-criminal” paternity testing request made in Streater.
Is an Inmate Whose Conviction is Vacated on the Basis of Favor able Postconviction DNA Testing Results Entitled to Compensation?
A survey of statutes that compensate persons wrongly imprisoned concludes that compensation statutes exist in only 14 States and the District of Columbia. Most of these statutes have low yearly caps, as well as total caps, and States pay few claims. See Michael Higgins, Tough Luck for this Man, 85 A.B.A.J. 46 (1999).
Chapter 3 Biological Issues
DNA
DNA is the abbreviation for deoxyribonucleic acid, which is the genetic material present in the nucleus of cells in all living organisms. DNA has been called the “blueprint of life,” since it contains all of the information required to make an organism grow and develop. It encodes all of the information that gives each of us our physical characteristics and allows us to function and be recognized as human. The majority of the DNA is identical from one human to another, but there are locations in the DNA that have been found to differ from one individual to another, with the exception of identical twins. These are the regions of DNA that are analyzed and used to compare the DNA obtained from an unknown evidence sample to the DNA of a known individual in DNA identification testing. Because each individual inherited half of his or her DNA from each parent, DNA testing can be used to determine if individuals are genetically related to each other. DNA is found in all cells with a nucleus and is the same throughout the body, so virtually every fluid or tissue from a human contains some DNA and can be analyzed by DNA identification testing. DNA also is stable and does not change over time, so samples collected years ago may be compared to samples collected recently.
When DNA testing is done, several basic steps are performed regardless of the type of test. The general procedure includes: 1) the isolation of the DNA from an evidence sample containing DNA of unknown origin and, generally at a later time, the isolation of DNA from a sample (e.g., blood) from a known individual; 2) the processing of the DNA so that test results may be obtained; 3) the determination of the DNA test results (or types), from specific regions of the DNA; and 4) the comparison and interpretation of the test results from the unknown and known samples to determine whether the known individual is excluded as (is not) the source of the DNA or is included as a possible source of the DNA (see further discussion below).
Each additional test at a previously untested locus (location or site) in the DNA provides another opportunity for the result of “exclusion” if the known individual being used for comparison is not the source of the DNA from an evidence sample of unknown origin. If, however, the known individual is the source of the DNA on the evidence sample, additional testing will continue only to include that individual as a possible source of the DNA. When a sufficient number of tests have been performed in which an individual cannot be excluded as the source of the DNA by any of the tests, a point is reached at which the tests have excluded virtually the world’s population and the unique identification of that individual as the source of the DNA has been achieved.
Types of Samples Suitable for DNA Testing
Questioned or Unknown Samples
Questioned or unknown samples collected from the crime scene can be any biological sample including: liquid blood or bloodstains, liquid saliva or saliva stains, and liquid semen or dried semen stains (including from vasectomized males) deposited on virtually any surface; genital/vaginal/cervical samples collected on swabs or gauze, or as aspirates; rectal/anal swabs; penile swabs; pieces of tissue/skin; fingernails; plucked and shed hairs (e.g., head, pubic, body); skin cells on drinking vessels, clothing (e.g., neck collars, waistbands, hat linings); slides containing tissue, semen, etc.; and liquid urine.
Samples From Unidentified Bodies
Samples collected from unidentified bodies can include: blood, buccal swabs, hairs, bone, teeth, fingernails, tissues from internal organs (including brain), muscle, and skin.
Reference Samples From Known Individuals
The most common reference samples collected from known individuals are blood, oral/buccal swabs, and/or plucked hairs (e.g., head, pubic).
Samples to Use When No Conventional Reference Samples Are Available
Other samples that may be considered when individuals are unavailable or are reluctant to provide samples include clothing where biological fluids may be deposited (e.g., women’s panty crotches or blood-, saliva-, or semen-stained items) and other clothing in close contact with the body where skin cells may have rubbed off (e.g., collars, waistbands, hats), bedding (with vaginal/semen stains or rubbed off skin cells), fingernail clippings, cigarette butts, toothbrushes, hairs in razors and hairbrushes, discarded facial tissues or handkerchiefs with nasal secretions, condoms, gum, feminine products, pathology paraffin blocks or slides from previous surgery or from autopsy, and teeth.
Reference Samples From Individuals Who Have Been Transfused
If an individual has received transfusions shortly before the collection of a blood sample (e.g., homicide victim), the DNA test results may indicate the presence of DNA from two or more sources. Generally the predominant DNA types reflect the types from the individual. However, other sources of reference samples for individuals who have received transfusions may need to be collected. These would include: blood-stained clothing or other material (bedding, etc.) and oral, vaginal, and other swabs in addition to the items listed above.
Use of Samples From Relatives for Testing
Because a child inherits half of its DNA from each parent, it is possible to use reference samples collected from close relatives (e.g., biological father, mother, and/or full siblings or the individual’s spouse and their children) to identify or confirm the identity of bodies that have not been identified through other means. It is also possible to use reference samples collected from close relatives for comparison to crime scene samples, for example, in missing body cases where a bloodstain or tissue sample from a possible crime scene can be tested to demonstrate a biological relationship to known individuals.
Determination of Paternity or Maternity of a Child or Fetus
Aborted fetal tissue can be analyzed for determining paternity, for example, in sexual assault and/or incest cases where conception occurred. Paternity and/or maternity of a child can be confirmed using blood or other samples listed above from the child and the alleged parent(s).
Storage and Preservation of Samples
Any probative biological sample that has been stored dry or frozen, regardless of age, may be considered for DNA analysis. Nuclear DNA from blood and semen stains more than 20 years old has been analyzed successfully using polymerase chain reaction (PCR). Samples that have been stored wet for an extended period of time should be considered for testing only using PCR and may be unsuitable for DNA analysis. Mitochondrial DNA analysis has been performed on very old bones, teeth, and hair samples.
Samples generally considered unsuitable for testing with current techniques include embalmed bodies (with the possible exception of bone or plucked hairs), pathology or fetal tissue samples that have been immersed in formaldehyde or formalin for more than a few hours (with the notable exception of pathology paraffin blocks and slides (see above)), and urine stains. Other samples such as feces, fecal stains, and vomit can potentially be tested, but are not routinely accepted by most laboratories for testing. Determination of the Age of the Sample It is not possible to determine the age of a biological sample or the time of deposition of the sample by DNA analysis, with the notable exception of sperm detected on vaginal/cervical swabs or in vaginal aspirates. Although sperm may be present, generally, sufficient sperm to obtain DNA test results cannot be collected from the vaginal cavity of a living female more than 24 to 48 hours after deposition. Several factors may affect the ability to obtain DNA test results from sperm collected from a deceased individual, such as the extent to which the individual engaged in physical activity after the sperm was deposited, the time of death in relation to the deposition of the sperm, and the decomposition of the body.
Testing of Samples Deposited on Various Substrates
DNA test results can be obtained from biological samples deposited on a wide range of substrates (e.g., many types of cloth/fabric found in clothing, bedding, car upholstery, etc. and carpet, glass, tile, wood, plastic, metal, vinyl, wallboard, and latex (gloves, condoms)). Substrates that may be problematic are leather, dirt, or any dirty substrate (e.g., carpet, shoes, car upholstery) and vegetable matter (e.g, leaves).
Determining Which Samples to Test
Care should be taken in selecting samples for testing that will give meaningful/useful results for a particular case. There is no point in testing samples that have no relevance to the crime for which an individual was convicted. (See discussion of category 5 cases in chapter 1.)
It may be important to reevaluate/analyze previously collected evidence samples to determine if there are: 1) other relevant evidence samples that could be tested (e.g., slides made from vaginal or cervical swabs, if no vaginal swab remains for testing); 2) samples containing stains or other biological samples that had not been detected previously; or 3) samples that were unsuitable for testing with previous techniques but may give conclusive results with currently available DNA tests (e.g., very small blood or semen stains, hair shafts).
The availability of and need for samples from known individuals who should be tested for exclusionary purposes will need to be carefully considered. For example, in sexual assault cases in which the defendant is excluded as a donor of the DNA, it is imperative that a sample from the victim and any known consensual partner(s) be tested in order for that exclusionary result to provide exculpatory evidence. Additionally, the testing of the victim’s sample in sexual assault cases can serve as a built-in control to confirm that the testing has been performed correctly and that the questioned sample is, in fact, linked to that victim.
It is advisable that samples be split whenever possible. This permits a portion of the sample to be available for:
–Retesting by opposing counsel.
–Retesting if there is a problem in the testing and it needs to be repeated.
–Additional testing for aiding in the interpretation of test results (e.g., mixtures), for providing more tests for exclusionary purposes, or for aiding in the identification of the true perpetrator when the convicted individual is excluded in postconviction testing.
–Future testing when new technologies become available.
For additional discussion, see the Selection of Samples for Testing section in chapter 8, Recommendations for Laboratory Personnel.
Previous Testing: Was It Done? What Do the Tests Mean?
To aid in the evaluation of a case and to assess the need and feasibility of doing DNA tests in postconviction cases, it is imperative that the following information be obtained regarding any previous testing that was done:
–What items of evidence existed at the time of the original trial and what type of analyses or tests were done on that evidence? This would include any microscopic or serological analysis (e.g., identification of sperm; detection of semen, saliva, or human blood; hair comparison; ABO blood typing; typing of other protein markers) as well as any DNA tests. This information should be obtained regardless of whether the results were used in the trial and regardless of whether the evidence still exists for retesting. This information may aid in determining whether to proceed with DNA testing in a postconviction relief case or categorize the case as one in which DNA testing would be meaningless (e.g., no biological
sample exists on the evidence or sufficient conclusive restriction fragment length polymorphism (RFLP) results exist). This information also may aid in the identification of additional evidence and in locating the evidence for testing.
–What are the limitations of the tests that were performed? It is important to understand what the previous test results really mean and whether those results could have been obtained if another individual other than the alleged donor was the source of the sample. For instance, ABO blood testing and/or DQa. PCR test results alone are not sufficiently discriminating such that a falsely accused individual would necessarily be excluded with these tests; additional DNA testing may be suggested in these cases. Conversely, if a multiple-probe RFLP match was obtained previously, additional testing may not be advised unless there is a strong indication of an error in the testing.
–Were the results used at trial and, if they were not used, what was the reason? If the test results were used at the trial, it is important to understand how the results were used in the case and whether they were accurately presented to the trier-of-fact. Test results may not have been presented at the trial because they were obtained at a late date, or because they were inconclusive or not supportive for either the prosecution or defense position. Alternatively, test results may not have been presented at the trial because the prosecution reasoned that the other evidence in the case was overwhelming and chose not to admit the evidence. There are many cases in this country where four- or five-probe RFLP results have been obtained but not used at a trial for various reasons (e.g., the attorney did not want to go through an admissibility hearing, a witness was not available, or the results were obtained too late to provide in discovery).
–Were there any test results reported to be inconclusive and, if so, what were the reasons for the inconclusive results? The changes in expertise and technology available for forensic DNA testing may require the reexamination of previously inconclusive test results and/or retesting of the samples. Due to the technical limitations of various tests and the variation in expertise of scientists, some laboratories take a more “conservative” approach than others when reporting test results and report a result as inconclusive when other experts may report the result as an inclusion or exclusion. This has been especially true for DNA test results when a mixture of DNA from two or more individuals has been obtained. No results or inconclusive results (because only weak or partial results were obtained) may have been reported for a sample that might yield conclusive results if other tests are attempted. For example, samples that yielded no or uninterpretable results with RFLP testing may well yield interpretable results with nuclear PCR testing. Similarly, samples that were unsuitable for nuclear PCR testing may yield results with mitochondrial DNA testing.
In older cases appropriate evidentiary samples or standards may not have been available or recognized as relevant and/or were unsuitable for testing with DNA tests available at that time. Reevaluation of collected evidence samples may lead to the identification of other relevant biological samples that had been previously undetected, or previously tested items that may give conclusive results with current techniques. Additional testing with
newer, more sensitive, and more discriminating tests (e.g., short tandem repeats (STRs), Y chromosome) may help resolve previously inconclusive test results where the evidence sample and the known standards from the victim and suspect all gave the same test results, or evidentiary samples previously yielded no DNA foreign to the victim (e.g., vaginal swab, breast swab, fingernail clippings). Identification and testing with current techniques of other or newly discovered evidence samples, standards, or relatives of the victim may lead to conclusive results.
–Are copies of the laboratory case notes, including any original photographs taken and films of any DNA test results, available for review by an expert? In many of the situations listed above, it will be necessary for an expert to review the data previously obtained by a laboratory in order for that expert to advise an attorney regarding the need for retesting and/or the types of tests to request.
It is recommended that one or both attorneys, and/or the court, seek the advice of an expert who can provide information regarding the issues and questions raised above. The expert may need to obtain copies of the previous test results and laboratory case notes for review in order to adequately advise the attorney/court. Whenever possible the appropriate attorney should obtain the needed materials and provide them to opposing counsel as requested. If additional testing is to be performed in a postconviction case, it may be important to consider what comparisons will need to be made with already existing results (e.g., for third-party individuals, for comparison with database records, for comparison with other cases). Also see chapter 8 for additional information.
Location of Samples in Postconviction Cases
Samples for testing in postconviction cases may be found in a variety of places. Places and persons to consider include:
–Police department evidence or property rooms. Evidence is often found here if the evidence was never tested or it was sent to the State crime laboratory, which then returned it.
–Prosecutor’s office. Evidence is often found here when it has been introduced at trial.
–State and local crime laboratories often will retain slides or other pieces of evidence after conducting testing. Laboratories usually will return to the police department the clothing and vaginal swabs that are introduced as exhibits at trial.
–Hospitals, pathology departments, medical examiners’ offices, clinics, or doctors’ offices where sexual assault kits are prepared.
–Defense investigators.
–Courthouse property/evidence rooms.
–Offices of defense counsel in jurisdictions that require parties to preserve exhibits produced at trial.
–Independent crime laboratories.
–Clerks of court.
–Court reporters.
Types of DNA Tests
Restriction Fragment Length Polymorphism Testing
The use of RFLP testing in human DNA identification was pioneered by Professor Sir Alec Jeffreys and first reported in 1985. [Footnote 13] Since then, RFLP testing has been widely used by public and private crime laboratories and paternity testing laboratories throughout the United States and the world for determination of paternity (and other biological relationships) and for the exclusion or inclusion of individuals as the source of a biological sample. RFLP testing has been widely used and accepted in the courts and there are currently approximately 300 appellate rulings regarding RFLP testing in the United States. RFLP testing has been used in postconviction relief cases and has resulted in a number of exonerations. [Footnote 14]
RFLP testing generally requires that a sample contain DNA that is not degraded (broken into smaller fragments), from 100,000 or more cells (e.g., a dime-sized or larger saturated bloodstain). Because of these sample requirements, many small samples collected from crime scenes are not suitable for RFLP testing (but see PCR testing below, which requires 10 to 1,000 times less DNA than RFLP testing). The procedure for RFLP testing requires that DNA isolated from a biological sample be specifically cut into smaller fragments using a protein called a restriction enzyme. The restriction enzymes most commonly used for RFLP testing of forensic samples have been HaeIII, HinfI, and PstI. The DNA fragments are then separated based on their relative length, and the DNA fragment size variations among different individuals are determined using DNA probes (e.g., MS1, YNH24, MS621, TBQ7) specific for discrete locations in the human genome (e.g., DIS7, D2S44, D5S110, D10S28, respectively). These results are generally visualized as a series of bands on films. The relative position and number of the bands obtained from an evidentiary sample are compared to those obtained from known individuals for the determination of exclusion or inclusion. For a further discussion on the RFLP testing process, please refer to the 1992 National Research Council report. [Footnote 15] RFLP testing has a high degree of discrimination such that falsely accused individuals will likely be excluded with testing at only one or a few regions of the DNA (loci). Generally, close biological relatives can be easily differentiated with testing at a few loci.
Polymerase Chain Reaction Testing–Nuclear DNA
PCR testing of nuclear DNA was developed by Dr. Kary Mullis at Cetus Corporation in 1984 and has rapidly become the most widely used technique in the field of molecular biology. First applied to DNA identification testing in a criminal case in the United States in 1986, [Footnote 16] PCR testing has been used widely by crime laboratories (both public and private) in the United States and throughout the world since the early to middle 1990s. PCR testing has been widely used and accepted in the courts and there are currently more than 80 appellate rulings regarding PCR testing in the United States. PCR testing has been used in postconviction relief cases and has resulted in a number of exonerations. [Footnote 17]
PCR testing of nuclear DNA as it is commonly used in forensic testing laboratories may be done on a wide variety of samples that are quite small, containing 50 to 100 cells or more (e.g., visible dot of blood, a single hair root). PCR is the test method of choice for samples that contain DNA that is degraded (e.g., pathology specimens, samples that have been improperly stored or are aged). The PCR test process consists of three basic steps: 1) the preparation of DNA in a sample for testing, 2) the amplification (or copying) of specific regions of the DNA using an enzyme called Taq polymerase, and 3) the analysis or readout of the test results.
Several different PCR-based test systems have been developed and are in common use for forensic DNA testing. The AmpliType [registered trademark] HLA Dqa Forensic PCR Amplification and Typing Kit has been used since the early 1990s and provides results in the form of blue dots on a white background for one location in the DNA. As with serological tests, an exclusion with this test eliminates an individual as the source of the sample; however, an inclusion with this test simply includes an individual within a set of a large number of individuals that also have the same DNA types. A falsely accused individual may be included as a possible donor of a DNA sample with this test system; additional tests would need to be done to achieve an exclusion for a falsely accused individual. The AmpliType [registered trademark] PM PCR Amplification and Typing Kit allows for the typing of five regions of the DNA (LDLR, GYPA, HBGG, D7S8, and GC) in a format similar to the DQa test kit. The DQa and PM kits are now combined into one kit called the AmpliType [registered trademark] PM + DQA1 PCR Amplification and Typing Kit, which allows for the amplification and typing of the six regions of the DNA. The use of the PCR with STR sequences and larger variable number tandem repeat (VNTR) sequences (such as in the AmpFLP D1S80 PCR Amplification Kit) has become common in many laboratories. With these test systems, the results are generally visualized as bands on films or multicolored peaks on a graph. Amplification by PCR of a small portion of the amelogenin region of the X and Y sex chromosomes allows the gender of the donor to be determined.
In the near future, DNA testing at a number of STR locations will likely replace RFLP and earlier PCR-based tests in most laboratories throughout the United States and the world. The Federal Bureau of Investigation (FBI) has recently established the 13 core STR sequences that will be used in the Combined DNA Index System (CODIS) database of convicted offenders.
PCR testing has a high degree of discrimination such that falsely accused individuals may be excluded with only one or a few test results, depending on the type of test system used.
Polymerase Chain Reaction Testing–Mitochondrial DNA
DNA contained in the mitochondria (an organelle involved in producing energy) of cells can be isolated and the sequence of the DNA bases can be determined. Mitochondrial DNA testing is generally performed on samples that are unsuitable for RFLP or PCR testing of nuclear DNA, such as dried bones or teeth, hair shafts, or any other samples that contain very little or highly degraded nuclear DNA. Mitochondrial DNA testing of forensic samples is increasing in the United States and throughout the world; at this time testing is available only in a limited number of laboratories. Mitochondrial DNA test results have been presented in court in a number of cases.
Mitochondria and their DNA are passed from a mother to her offspring. For comparison purposes, samples may be collected from any relative in the maternal lineage. For mitochondrial testing, the PCR is used to copy specific sequences in the hyper variable regions of the mitochondrial DNA. The DNA sequence is obtained from the mitochondrial DNA from the unknown sample and compared with the DNA sequence from a known individual. Mitochondrial DNA testing can be used to link a sample to a particular family.
Possible Results/Conclusions From DNA Tests
Inclusions
When the results obtained from the standard sample from a known individual are all consistent with or are all present in the results from the unknown crime scene sample, then the results are considered an inclusion or nonexclusion. The term “match” is also commonly used when the test results are consistent with the results from a known individual. That individual is included (cannot be excluded) as a possible source of the DNA found in the sample. Often, statistical frequencies regarding the rarity of the particular set of genetic information observed in the unknown evidence sample and for a known individual are provided for various population groups.
It is possible for a falsely accused individual to be included as a source of a sample, particularly if the test system used only tests at one or a few loci (e.g., the DQa). In this situation, additional testing at more loci should be performed with the remaining evidence and/or DNA.
In some cases where inclusions are reported, the results are not meaningful or are inconclusive for that particular case from a legal perspective. Situations where this might apply are when the results obtained are all consistent with the individual from whom the samples were collected (e.g., victim’s results only on vaginal swabs taken from the victim, defendant’s results only on a bloodstain on defendant’s clothing).
Exclusions
When the results obtained from the standard sample from a known individual are not all present in the results from the unknown crime scene sample, the results are considered an exclusion, a nonmatch, or noninclusion. With limited exceptions, an exclusion of an individual at any one genetic region eliminates that individual as a source of the DNA found in the sample. (See Previous Testing, above.)
In some cases where an exclusion is reported, it may be necessary to do additional testing for that exclusion to be meaningful to the case or to provide evidence for exoneration. A situation where this might apply is when the defendant is excluded as a donor of the DNA in a sexual assault case, but no samples are available from the victim and/or consensual partners. (See Determining Which Samples to Test, above.)
Inconclusive Results
Results may be interpreted as inconclusive for several reasons. These include situations where no results or only partial results are obtained from the sample due to the limited amount of suitable human DNA or where results are obtained from an unknown crime scene sample but there are no samples from known individuals available for comparison. In the latter case, the results would be suitable for comparison once an appropriate sample for comparison is tested.
Databases
RFLP-based and PCR-based databases have been constructed and are continuing to be expanded in many laboratories throughout the United States and the world with samples from convicted sex offenders and convicted felons, as well as samples from unsolved crimes. These databases will be especially helpful for linking previously unrelated cases and for screening a large number of known individuals already convicted of a crime to newly tested crime scene samples.
DNA databases of mitochondrial sequences are being established that are currently being used for statistical purposes. It is possible that databases containing mitochondrial sequences may be constructed for comparison to crime scene samples in the future.
Testing in the Future
Testing of hair shafts using mitochondrial DNA sequencing likely will become more widely available in the immediate future. It may be possible to isolate and test DNA from other samples that are not routinely tested today (e.g., fingerprints).
Y-specific probes are sequences of DNA found only on the Y (or male) chromosome. Development and validation of these probes are in progress. These probes will be especially useful for mixed samples in which the female component is not relevant or may make interpretation of the results more difficult (e.g., sexual assault samples, fingernails from female victims when the assailant is male) and in the analysis and determination of the number of male sources of DNA in samples where there are multiple male contributors (e.g., multiple assailants and/or consensual partners in sexual assault samples). Because Y chromosomes are inherited through the male lineage, Y-specific probe results may be used to link a crime scene sample to a particular family. DNA probes useful for identification testing are being developed from many other organisms and may be useful in crime scene investigation. There are reported cases in which DNA from cat hair [Footnote 18] and from a particular type of plant has been used to link individuals to a particular crime scene.
Progress is being made in developing technologies for miniaturization of DNA tests (e.g., microchip analysis) that may be applied to forensic testing in the future. Expansion of existing technologies (e.g., sequencing of nuclear DNA) may emerge for forensic testing. Other as yet unknown or undeveloped technologies may be forthcoming that could be applied to forensic testing. It is likely that future tests could increase the sensitivity and speed of testing, as well as increase the discrimination capability of a test to unique identification of an individual.
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