Article Bank # A-76-ii *TEXT CONTINUED FROM # A-76-i*
NOTE: The text of the footnotes appears after the appendices.
Postconviction DNA Testing:
Recommendations for Handling Requests
A Report From The
National Commission on the Future of DNA Evidence
U.S. Department of Justice Office of Justice Programs National
Institute of Justice
[TEXT CONTINUED FROM ARTICLE BANK # A-76-i]
Chapter 4 Recommendations for Prosecutors
Possible Responses to an Application for Postconviction DNA Testing
Requests for postconviction DNA testing may come from a variety of parties, including inmates, their families, defense attorneys, police, or other persons such as members of the judiciary or elected officials who have been contacted for assistance. When a prosecutor receives a request for postconviction DNA testing, the prosecutor may have several choices on how to proceed:
–Take no action until a formal motion or application is received.
–Advise the person making the request to retain defense counsel.
–Refer the person making the request to an organization that assists inmates with regard to postconviction DNA testing. (See Resources, appendix I).
–Refer the matter to a specialized unit in the prosecutor’s office that handles postconviction matters.
–Begin an investigation following the steps suggested below.
The prosecutor’s choice of option will be governed by many factors, such as:
–Whether statutory or case law dictates procedures that must be
–The organization of the prosecutor’s office. The office may have a specialized unit to which all postconviction requests for relief are referred and the office may have written guidelines for handling requests.
–The economic and personnel resources of the prosecutor’s office, including the availability of technical assistance, with regard to DNA issues.
–The experience of the prosecutor in answering habeas corpus and other relief requests and dealing with issues relating to DNA. The prosecutor who has little experience with DNA may be more inclined not to begin an investigation until defense counsel has been retained.
–The information available to the prosecutor about the case on the basis of personal knowledge or details in the request. The prosecutor may conclude that the case probably falls into category 4 or 5 and can be disposed of promptly, or the prosecutor may conclude that the case is potentially a category 1 case that should be handled as quickly as possible in the interests of justice.
In the case of serial murderer Timothy Wilson Spencer, the “South Side Strangler,” David Vasquez, an innocent man, confessed to murder, pleaded guilty, and spent 4 years in prison. FBI profilers had suggested the true serial rapist/murderer was a white male. The DNA RFLP pattern of Spencer, a black male, which occurs only once in every 135 million unrelated persons, matched the pattern of the DNA from the semen taken from three of four murder scenes. Spencer was matched to the fourth rape/murder by DNA PCR testing. Vasquez had confessed and pleaded to a fifth murder, which did not have sufficient biological evidence for DNA testing but matched the MO of the four rape/murders (of which Spencer was convicted), and another unprosecuted rape in which Spencer’s DNA matched the DNA from the semen. Although not directly exonerated by DNA testing, Vasquez was released because of the unique MO of the many rapes and murders, and because of an FBI behavioral unit report, which concluded the same person had committed all the crimes. Although the police and prosecutor who originally prosecuted Vasquez were skeptical, Vasquez was released because of the efforts of the same people–police and prosecutors–who had incarcerated him, without a request by family or defense attorneys.
[Commonwealth v. Spencer (I) (Va. 1989) 384 S.E.2d 775, (II) (1989) 384 S.E.2d 785, (III) (1989) 385 S.E.2d 850, (IV) (1990) 393 S.E.2d 609 (four death penalties affirmed; executed on April 27, 1994), is dramatized in Stalking Justice, by Paul Mones, Pocket Books, 1995.]
On Saturday, June 22, 1996, frontpage headlines announced the release of Kevin Lee Green, who had been in prison for 17 years after being convicted by a jury of bludgeoning his wife and killing the fetus she carried. Green was released when DNA tests confirmed the confession of a second man who was identified by matches of his DNA, from a California statewide DNA database, to five other unsolved homicides from almost 20 years earlier. The police and prosecution were not expecting the confession to the Green case by the second man, were not investigating that case, and were not responding to requests for postconviction relief by the family or attorneys for Green.
[“Falsely Jailed: What Happened?” and “Prosecutors Crack the Case Using Old-Fashioned Detective Work,” Orange County Register, June 22, 1996, page 1.]
The recommendations that follow are designed for cases in which a prosecutor, after considering the factors listed above, concludes that a proactive approach is the best and most appropriate way to proceed. A proactive approach allows the prosecutor to exercise more control over timing and other decisions that must be made as the case continues. These recommendations provide information about the various stages of a request for DNA testing, give examples of various kinds of issues that may arise, and offer suggestions on ways in which these issues can be addressed efficiently and fairly.
The prosecutor should make every effort at cooperation and coordination with defense counsel once counsel is retained. The prosecutor and defense counsel should reach agreement on:
–Turning over copies of briefs and court transcripts that may not be in the possession of the other party.
–Selecting a laboratory to conduct testing.
–Making results open and unlimited in their use by prosecutors, police, and parole personnel.
Irrespective of how the prosecutor chooses to respond to a request for testing, once the prosecutor is aware of a request for DNA testing, the prosecutor should take steps to ensure that there will be no destruction of any evidence that relates to the case in which testing is being sought. (See Preserve Evidence and Information, below.)
Responding to a Request: The First Stage
When a request is received, the following steps are recommended:
Upon receiving initial notification of a request for postconviction DNA analysis, attempt to gain as much information as possible about the inmate and the case in which he or she was convicted in order to expedite one or more of the following: locating evidence; case review; release of the inmate if exonerated; and reopening of the case in order to locate and prosecute the true perpetrator.
If the request is made by an inmate directly to a prosecutor, the prosecutor should consider whether the governing law of the local jurisdiction limits direct contact between an inmate and a prosecutor. If so, the prosecutor may have to limit the information gathering to identifying information and refer the inmate to legal counsel.
–Attempt to get the following information about the inmate:
o Full name.
o Date of birth.
o Criminal identification index (CII) number.
o Social Security account number (SSAN).
o Prison or inmate number.
o Current housing location.
o Defenses proffered at trial.
o Defenses currently claimed.
Also find out if the inmate is in custody on a separate case or unrelated charge for which the serological or DNA evidence is irrelevant, i.e., for which an exoneration will not result in release. (Such cases may have lower priority, but resolution may nonetheless have practical benefit to an inmate, such as reduced points relevant to prison classification or custodial status, or may affect calculation of a minimum release date.)
–Attempt to get the following information about the committing case:
o Court case number.
o Court department or division.
o Name of trial judge.
o Name of court reporter.
o Dates of trial, conviction, and sentencing.
o Name of prosecuting attorney and file number.
o Name of investigating officer.
o Police investigative file numbers.
o Police laboratory or outside serological laboratory case numbers.
o Names of trial and appellate defense counsel.
o Phone numbers of any of the above.
–Evaluate any prior DNA testing. A prosecutor may need to have prior DNA results reevaluated or interpreted. DNA results may not have been introduced in a prior trial because defense tactics made such introduction irrelevant or otherwise not advisable. DNA results that may not have been used because a laboratory called results “inconclusive” might perhaps now be declared a “match.” (See discussion in chapter 3, and the more detailed discussion in Get Full Information About What Was Done Previously, below.)
In 1983, Kerry Kotler was convicted by a jury of the burglaries and rapes of the same woman on two different occasions in 1978 and 1981. Kotler was identified by the victim after the second rape in a lineup of 500 photos and by voice and sight in an in-person police lineup. Kotler also was matched to the semen stain evidence by three non-DNA genetic markers. The prosecutor agreed to release Kotler after 11 years in custody based on PCR DQ alpha results only, which showed a type from the semen stain that could not have come from Kotler alone (or from a combination of Kotler and the victim or the victim’s husband). However, the type from the semen stain did include Kotler’s type, and if the type from the semen stain was a mixture, Kotler is not excluded. Kotler was released on December 1, 1992.
In spring 1996, Kotler was rearrested and charged with the August 12, 1995 rape of a different woman. Kotler’s DQ alpha type is a 4, which means he got a 4 from both his father and his mother. The semen stain from the 1981 rape was a DQ alpha type 1.1.4. There are a variety of possible types of a secondary source of DNA on the semen-stained panties, including types 1.1, 1.1; 1.1, 4; and 1.1, 1.2 (because the 1.2 type can be masked by the 4 type). With today’s technology the 1981 semen stain could be tested with additional PCR to see if Kotler were one source of a mix.
[A partial description of the Kotler case is found in Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, published by the National Institute of Justice, 1996, 61-64, 84.]
–Identify other factors that bear on DNA testing. Also, consider at this stage what additional discovery may be needed. Did the defendant plead guilty or nolo contendere? Did the defendant enter an “Alford” plea, pleading guilty in exchange for a lesser sentence, while claiming innocence, because the defendant believed he or she would be convicted on the evidence available to the prosecution? Should blood or other “elimination” standards be taken from consensual sex partners of the victim, or from coperpetrators of the crimes?
Gaining as much of the above information as possible will assist in later decisions such as the initial relevancy determination.
Initial Relevancy Determination
Ultimately, the prosecutor will have to determine whether a case is suited to DNA testing. Categories explained in chapter 1 are summarized below. Some prosecutors may agree to testing only in category 1 cases, while opposing testing in all other categories.
Category 1. These are cases in which biological evidence was collected and still exists. There is agreement on the need for DNA testing and that, if the results are exclusionary, the petitioner will be exonerated. (See examples in chapter 1.) These are cases in which the prosecution should be willing to stipulate to the testing and to agree that testing will be paid for by the State if the inmate is exonerated.
Category 2. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results would be helpful to the petitioner’s claim of innocence, but reasonable people might disagree as to whether the results would amount to a demonstration of innocence, would establish reasonable doubt of guilt, or would merely constitute helpful evidence to exonerate him. This category also includes cases where, for policy and/or economic reasons, there might be disagreement as to whether DNA testing should be permitted at all or, for indigent inmates, at State expense. The decision on whether testing or retesting should be done may have to be made by a judicial officer.
Category 3. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing, favorable results would not be meaningful.
Category 4. These are cases in which biological evidence was never collected or cannot be found despite all efforts. In such cases, 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. (See examples 10 and 11 in chapter 1.) Considerations include: 1) whether the petitioner confessed or pleaded guilty at trial; 2) whether the petitioner testified to performing the charged act, but raised a defense such as consent, self-defense, duress, or entrapment; 3) whether the petitioner was caught in the act or other strong evidence of identity or involvement exists such as unambiguous fingerprint evidence; and 4) whether an earlier version of DNA testing had been performed but not introduced at trial.
In 1992 a prosecution office received a request to reopen a 1983 case and perform DNA testing on semen stains in a serial rape case. An attorney, newly contacted by the inmate’s family, said the family claims the inmate has been in custody for almost 10 years (of a 37-year sentence) for crimes they all believe he did not commit, and that the DNA will prove all the crimes were committed by someone else. Before the case file was retrieved, the trial prosecutor was contacted. The trial prosecutor revealed that the defendant had pleaded guilty to crimes involving two victims where non-DNA identification evidence was strong, and that his MO was strong as to all five victims, including specific language used, and traditional serological tests matched the inmate as a source of the semen in all cases. The new defense counsel was notified that the District Attorney’s office would resist all attempts to reopen the case for DNA testing.
[People v. Morehead, Orange County (CA) #C52794.]
Inform the requester that in many cases the costs of testing may have to be borne by the requester or the inmate. Costs can vary depending on the number of samples that need to be tested, the number of different tests conducted, and the pricing policies of the individual laboratory ultimately selected to perform the tests.
Inform the requester that, depending on the jurisdiction and the crime, DNA testing may have the negative consequence of identifying the inmate as a perpetrator of other crimes because his or her DNA testing results will be placed in a statewide and nationwide DNA criminal identification databank, or the profile may be checked against data already stored in such data banks. Also, DNA testing that further confirms an inmate’s guilt may have an adverse effect on a parole board if the inmate has been consistently denying his guilt, and may preclude executive clemency or other relief sought on other grounds.
Information Gathering Stage
Preserve Evidence and Information
Immediately after the initial request, contact the applicable clerk of the court, court reporter, investigating agency, crime laboratories, trial prosecutor, and defense counsel and request that any remaining evidence be preserved and that applicable files and court reporter’s transcripts or notes be forwarded to your office for review.
Make Preliminary Evaluation of Availability of Evidence
Based on the issues involved in the case, attempt to locate relevant physical evidence. Consider the possibility of testing items not traditionally thought to contain DNA evidence, such as slides taken by medical personnel during sexual assault examinations and paraffin-imbedded tissue samples taken at the time of an autopsy.
Try to determine if there is sufficient sample to achieve as many as possible of the following goals:
–Test the evidence now.
–Retain a portion of the sample for duplicate and/or additional genetic marker testing.
–Test the evidence on systems that will allow access to and entry into criminal identification DNA databanks.
–Retest for comparison with suspect standard samples when actual perpetrators are identified. (Even though the statute of limitations may have run out as to crimes committed by the true perpetrators, the evidence may still be useful in subsequent prosecutions as “other crimes” or penalty phase evidence.)
–Retest, if necessary, with newer genetic tests when they become available.
If, from initial contact with the investigating officer or review of case files, it appears that evidence suitable for DNA analysis was never collected, or has since been destroyed, it may prove impossible to continue with the rest of this guideline. (See category 4.) However, no final decision or notification should be made until it has been carefully verified that evidence did not or does not still exist.
Get Full Information About What Was Done Previously
If DNA testing was conducted but not used at the original trial, find out why. Sometimes DNA testing was performed, but not used at trial, because the laboratory declared the results inconclusive. It may be worthwhile to reexamine the results to determine whether they might now be viewed as conclusive. Even if a laboratory has a policy against reevaluating prior interpretations of its own work, numerous outside experts with excellent credentials are available from crime labs, universities, and research and medical facilities who can opine on the results of a prior test. One of the advantages of DNA testing is that each test creates actual data that can be independently evaluated by experts at a later date.
An inmate requested postconviction polymerase chain reaction (PCR) testing where inconclusive restriction fragment length polymorphism (RFLP) testing had not been introduced at trial. After a court-ordered PCR test, the RFLP results were reviewed by a scientist expert who declared a “match” based on the previously declared “inconclusive” faint results, which was confirmed by PCR testing. Had the prosecution reviewed the RFLP results when the request for PCR testing was made, there might have been no need to go to court.
[Davi v. Joseph Class, Warden, unpublished decision, case No. 19844, Order of Remand (S.D. 1998)].
Sometimes DNA test results were available, but not used at trial because the results were received so close to the trial that they were excluded by the trial judge as untimely, or they were not used by the prosecutor to avoid a continuance for the defense to prepare to respond to the evidence.
Prosecutors also may not have introduced DNA evidence because they were unsure of its admissibility based on conflicting or nonexistent appellate law, because they were uncomfortable with the science that would be encountered pretrial and/or at trial, or because they were uncomfortable in presenting statistical evidence and answering statistical challenges.
Laboratories have different policies about the information they routinely make available. Some laboratories provide an entire package, including final reports, final results (x-rays, films, or photos of gels or dot blots), and the case notes of the examiner. Other laboratories, accustomed to the former Federal system, in which the defense was entitled only to discovery of the final, conclusory laboratory report, initially provide only reports and will later forward other materials on request. The entire package may be needed to evaluate results of prior DNA testing.
Assessing the Viability of the Claim
Make a Preliminary Evaluation of the Merit of the Claim
A preliminary evaluation should be made of the potential significance of any further DNA testing. If testing would produce only irrelevant results, the request for DNA typing should be denied. If the results could be material to the petitioner’s claim, determine, in consultation with an expert, whether or not available DNA analysis is capable of answering the question that the inmate now claims will exonerate him. Discuss your evaluation with defense counsel.
Conduct a Thorough Review of the Case File
In reviewing the case, keep in mind the framework for analysis set out above and in chapter 1. Determine which category or categories the case could fall into in light of the inmate’s claim, and decide which DNA test results would be most favorable to the inmate.
Consultation With Defense Counsel
These recommendations assume the inmate is represented by counsel. In most instances, it is advisable to suggest that the requester get counsel. If the requester does not get counsel, it is advisable to make all communications in writing, including your suggestion that the requester should retain counsel. Throughout the entire process of reviewing a request for postconviction DNA testing, and during the testing process, actively consult with defense counsel if one has been retained for the inmate. Prosecutors should receive a notification letter early in the process from defense counsel if one has been retained. Defense counsel may be the first to learn a request is frivolous or has been withdrawn. If the prosecution unilaterally decides to order testing, the prosecution should give defense counsel or an unrepresented inmate advance written notice of the decision.
Interaction With Victims
Immediately consult the local victim/witness specialist in your jurisdiction, if one exists, to determine whether or not, and when, to advise the victim or survivors of the request for postconviction analysis of evidence. It is preferable for victims or survivors to learn of the request from a sensitive, trained professional (with whom the victim may have already developed a rapport), rather than from a crime scene investigation officer attempting to draw blood or collect saliva samples, or worse yet, from the news media. (See Recommendations for Victim Assistance, chapter 7.)
In 1984, a Virginia man was arrested and convicted of the brutal rapes and sodomies of a 19-year-old camper. Postconviction PCR DQ alpha testing eliminated both the inmate and the victim’s boyfriend as a source of the semen on a vaginal swab taken shortly after the rapes. Before Virginia Gov. George F. Allen would grant a clemency petition, he ordered State police to interview the victim. She admitted a consensual liaison with another man beside her boyfriend. Results of DQ alpha testing of the second boyfriend showed a possible mix of the inmate’s and the second boyfriend’s semen. Additional PCR, polymarker testing eliminated the inmate. This case went from a category 1 case to a category 2 (or worse) case, to a category 1 case, based on the three sets of testing. The inmate was released after 10 years in custody. If the victim had been contacted up front, this process would have moved more swiftly. This case also shows the increasing power of newer DNA tests.
[This is the case of Edward Honaker, retold by Harlan Levey in And the Blood Cried Out, Avon, 1996, 179-86.]
Consultation With Experts and Experienced Colleagues
When evidence exists, contact a forensic DNA expert and, if needed, a prosecutor who is experienced and up to date on available DNA typing technologies and the handling of postconviction DNA analysis requests. Find out what kinds of tests are available, whether the available evidence is suitable for DNA testing, what issues the testing will be able to address, and whether the currently available test will consume the available evidence. Discuss possible nontraditional sources of evidence for testing.
Results of the analysis may not be dispositive unless both the defendant and all consensual sexual partners and codefendants are eliminated as a source of the evidence.
In a case pending in 1998, two brothers were released (after 13 years in custody) by a judge who ordered a new trial when postconviction testing showed neither was the source of semen on a vaginal swab in a kidnap/rape. After the inmates were released, the victim, who was married at the time of the rape, disclosed she had had an affair and had intercourse within 2 days of the rape. Unfortunately, the man she named as her extramarital lover had died years earlier from being assaulted in a Mississippi jail. Fortunately, autopsy blood from this man had been preserved and DNA testing matched him to the semen from the vaginal swabs. If the disclosure of the extramarital affair had been made prior to the order for a new trial, that order may never have been issued.
Determine whether additional samples/standards need to be collected from the victim, from the victim’s relatives, from other consensual sex partners, from third parties, or from coperpetrators. If the inmate claims he did not have sex with the victim, and there is no contention that third parties were involved, then a nonmatch of the inmate’s DNA type to the semen DNA type may be dispositive without the need to collect additional reference/elimination samples. If, however, the victim claims to have had consensual sex with a third party, or claims to have been raped by more than one person, there may be a need to collect reference blood or buccal (swabs of the inside of the cheek) standards from each sex partner for elimination purposes. Before ordering or agreeing to testing, consider whether an attempt should be made to get standard samples of all parties who may logically have contributed to the relevant biological sample. If victims or surviving family members must be contacted, do so through the local Victim/Witness Advocacy Program, if available. With most current testing methods, including all types of PCR-based testing, there is no need to bother victims and others until the defendant’s standard has been tested and does not match the evidentiary sample. Issues to consider are: 1) not interfering with the feeling of finality for the victim, and 2) what delay in the process will be caused by waiting for “elimination” standards.
Mixtures of DNA types from more than one source of semen are more difficult to interpret. The greater the number of the victim’s sex partners, either by consent or rape, the greater the likelihood that the inmate’s type will be masked by the presence of other types and not afford a clear elimination.
If an assault or homicide case involves possible blood transfers from multiple assailants and/or victims, the same issues of mixtures and masking may apply.
In sex cases with mixtures, or where an exclusion of the defendant is contrary to otherwise strong evidence, consider the possibility that the victim may have had an unrevealed prior consensual sexual partner within 24 to 48 hours prior to the rape.
See discussion in chapter 3 under Reference Samples From Individuals Who Have Been Transfused. In some cases, reference samples may need to be collected from the donors of each unit of blood transfused to the victim during rescue surgery. Again, consult experts and discuss with defense counsel.
In a case pending in 1999, the DNA type of the autopsy heart-blood standard of the victim did not match the DNA type of the blood on the shoes of the only suspect. The issue was resolved in two ways: First, the laboratory tested a sample of the victim’s brain tissue, tissue not expected to be contaminated by transfusion blood. Second, by search warrant to the blood bank, the investigator learned the identities of all four donors of the blood transfused to the victim in surgery. All donors freely gave reference samples. The DNA type from the brain tissue matched the DNA type from the blood on the suspect’s shoes. The DNA type of the heart-blood matched the DNA type of the donor of the last unit of blood transfused to the victim. Again, consult experts and discuss with defense counsel.
Decide Whether to Order DNA Analysis Without Challenge
A prosecutor should normally agree to testing without opposition in category 1 cases. For example, when a rape case turned solely, or in large part, on eyewitness testimony, where serology at the time was inconclusive or not highly discriminating, and newer, more discriminating tests are now available, the prosecutor should order DNA testing.
Notify the Defense and Victim of Decision
If the prosecutor decides, on his or her own, to order testing and the testing will consume remaining samples, the prosecutor should notify the defense.
If the prosecutor decides not to object to defense testing, the defense should be notified that the prosecution will cooperate, provided the defense agrees that the results will be open, reported to both sides, and available for future use by either side. The prosecution should also recommend that the testing be conducted either by an accredited laboratory or a laboratory that meets the criteria for accreditation (see discussion in chapter 8 on quality assurance standards for forensic DNA testing), that testing be conducted using techniques currently us ed for criminal identification databanking (such as the Combined DNA Index System (CODIS)), and that the results be released to the State for such data banking purposes.
In a category 1 case (where favorable testing results will exonerate the inmate or demonstrate reasonable doubt), if the inmate is indigent, the prosecution should attempt to have the testing done at public expense. When payment for the tests is made by the inmate or on his behalf, the prosecution should consider agreeing to court-ordered repayment or other forms of reimbursement if the results exonerate the inmate.
In category 2 cases (where favorable results will be helpful but do not exonerate) payment by the inmate may be required.
Procedures After Postconviction Testing Results Have Been Obtained
Again, consult with forensic DNA analysis experts to determine if results are dispositive (exonerates or confirms guilt) or inconclusive (e.g., results do not match the inmate but alternative explanations exist) or mixtures, contaminants, artifacts, or results with weak intensity make it impossible to report a clear match or exclusion.
If the testing ultimately exonerates a person who has been wrongly incarcerated, it is in the interests of the prosecution and in the interests of justice to release that person. If the results exonerate (are inconsistent with all theories of guilt), the prosecutor should immediately take the necessary steps to have the inmate released. The case investigation may be reopened and, if appropriate, the charges should be dismissed.
If the testing results further inculpate the inmate, confirming the validity of the conviction, the prosecutor should notify the parole board or probation department. The prosecutor should also request that the inmate’s profile be added to CODIS offender databases, when appropriate, and should notify the victim or survivors (through the local victim’s services agency).
If the results are inconclusive, the prosecutor should notify the defense and victim/survivors that the prosecution will oppose habeas corpus or new trial motions and they should prepare to defend against same. In any case where the inmate is not exonerated, the prosecutor should request that, whenever appropriate, the newly developed DNA profile be added to CODIS offender databases.
In any case where the inmate is exonerated, the prosecutor should seek to have the evidentiary profile added to the unsolved cases section of the DNA databases, in hopes of identifying the true perpetrator.
The prosecutor should do all the above with liberal and frequent consultation with and notification to victim/witness specialists, forensic DNA experts, defense counsel, and prosecutors experienced in DNA technologies and postconviction relief issues.
Chapter 5 Recommendations for Defense Counsel
These protocols are addressed to public defenders, court-appointed counsel, private practitioners, pro se individuals, and law clinics (hereinafter “defense counsel”). It should be emphasized that defense counsel should seek the advice of experts in the field whenever possible. Please consult the resources in appendix I.
Handling Initial Requests
When defense counsel receives a request from an inmate or someone seeking assistance on an inmate’s behalf to obtain a postconviction DNA test, the following steps should be taken:
Defense counsel should do an extensive screening to determine if the case is suited to DNA testing. The screening process’ ultimate goal is to classify cases according to the criteria set forth in chapter 1. The classes of cases are 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, both the prosecution and defense agree that favorable results will exonerate the petitioner.
Category 2. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results would be helpful to the petitioner’s claim of innocence, but reasonable people might disagree as to whether the results would amount to a demonstration of innocence or would establish reasonable doubt, or would merely constitute helpful evidence. This category also includes cases where, for policy and/or economic reasons, there might be disagreement as to whether DNA testing should be permitted at all or, for indigent inmates, at State expense. The decision on whether retesting should be done may have to made by a judicial officer.
Category 3. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing, favorable results will be inconclusive.
Category 4. These are cases in which biological evidence was never collected or cannot be found despite all efforts. 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.
Please note that there are several types of situations within these classifications that may frequently occur. These include cases where:
–Evidence exists and elimination samples from third parties need to be collected.
–Evidence is believed to exist, but cannot be found, at least initially.
–Evidence exists, but may not be testable because it is old and has degraded.
To screen the cases effectively, defense counsel should follow several steps:
Initial relevancy determination. After the initial letter or other inquiry is received, defense counsel should review the request to determine whether DNA testing is at all relevant. For example, if it is a rape case in which the defense at trial was consent, or a murder trial in which defense counsel asserted self-defense, then DNA testing will not be helpful in proving innocence, barring special circumstances. (See discussion in chapter 1.) If, upon review, it is clear that the case does not involve biological evidence suitable for DNA testing, then a letter should be sent to the inmate as soon as possible explaining that he must pursue other avenues to challenge his conviction.
Prior DNA testing. If the inmate’s letter indicates that DNA testing has already been conducted and the results were inculpatory, the defense team may choose to refer the inmate to an organization or attorney that can review the quality and legitimacy of the DNA testing. Please note, however, that even if DNA test results were inculpatory, more discriminating tests may be available, and defense counsel may want to consider pursuing this option. For example, a PCR-based DQ inclusion is not as discriminating as a short tandem repeat (STR)-based inclusion.
Followup questionnaire. If it appears to be a viable case or if more information is needed to make a determination, defense counsel should send a followup questionnaire, based on information immediately available to the inmate. The questionnaire should be composed of questions eliciting basic information about the background of the case. The questionnaire should include the following:
–Where and when did the offense and trial take place?
–What was the sentence?
–Who were the attorneys, both prosecuting and defense, at all stages of the case, including the appeals?
–What relevant items of evidence were collected that could contain biological samples suitable for DNA testing? Please note that this information does not mean that the items were introduced into evidence as exhibits at trial, or even tested.
–What testing, if any, was conducted?
–What biological evidence was tested or introduced at trial?
–What was the defense at trial?
The questionnaire should ask the inmate to identify what he or she has available, including trial transcripts, police reports, laboratory reports, appellate briefs, postconviction briefs, and lists of evidence collected (these lists may be known as logs, sheets, or inventories).
Defense counsel should send a cover letter with the questionnaire. The cover letter should advise the prospective client that:
–Defense counsel must notify the prosecution that a request for DNA testing has been received and that this notification may occur at any time after the initial inquiry.
–If DNA testing is conducted, the results will be disclosed to the prosecutor.
–If defense counsel finds the case to be viable and DNA testing is subsequently conducted that confirms the guilt of the inmate, the results of such testing could have negative consequences for the inmate. The negative consequences can include unfavorable outcomes at future parole hearings and/or unfavorable outcomes on other postconviction petitions.
Once the questionnaire is returned, defense counsel should evaluate it. If the case still appears to be viable, then more documents should be requested to further evaluate the case. The items to be requested are case dependent, but will generally include the following:
–Trial transcripts (especially the closing arguments and any testimony regarding scientific evidence).
–Appellate briefs (especially the prosecution’s brief).
–Evidence collection lists (may also be known as logs, inventories, or collection sheets).
Defense counsel should do whatever it takes to help the inmates find the material by calling either the former attorneys, the courts, investigators, or a friend or family member who may be able to help the inmate.
Assessing the Viability of the Claim
When the requested materials are received, defense counsel should conduct another evaluation to determine in which category the case falls. (See category descriptions earlier in this chapter and in chapter 1.) If it is determined that the case falls into category 1 or 2, then the case will be accepted and the search for the evidence can commence.
At this point, defense counsel should contact the prosecutor’s office to notify it that the inmate is seeking DNA testing and that all evidence collected in connection with the case should be preserved. Throughout this entire process, defense counsel should actively consult with the prosecutors and seek their cooperation. (See the section, Consultation With Prosecutors (below), for further discussion.)
Investigation/Searching for the Evidence
Once a case has been determined to meet the criteria of a category 1 or category 2 case, defense counsel must begin a search for any biological evidence that may be available on which to conduct the DNA testing. Finding the evidence is the most difficult part of the process. Uniform protocols for the preservation of evidence in each jurisdiction do not exist. Each State, local, or county jurisdiction varies in its methods of collecting, storing, and preserving evidence. These methods may not conform to existing statutes and regulations. Many times all parties believe that the evidence has been destroyed, when in fact it has not. It may be necessary to search for evidence that has not previously been tested or introduced in court.
A major barrier to conducting DNA testing is that, quite frequently, the evidence has been destroyed or cannot easily be found. Destruction generally occurs as a routine matter and is not done with malicious intent. Once preservation statutes have been passed in each State, it will make the process of finding the evidence both more efficient and more likely to occur. However, at this time, since most jurisdictions do not have uniform procedures for storing evidence, it is necessary to follow certain steps. Note that these steps will differ from State to State and case to case.
The searcher for the evidence must determine the most likely places for the evidence to be found. Places and persons to consider and contact are:
–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 will often retain slides or other pieces of evidence after conducting testing. Laboratories will usually return to the police department the clothing and vaginal swabs that are introduced as exhibits at trial.
–Hospitals, clinics, or doctors’ offices where sexual assault kits are prepared.
–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.
The searcher should not give up until he has seen substantiation that the evidence has been destroyed. Even then, previously untested items may still be available, e.g., slides or clothing that were introduced for identification purposes.
Even if the evidence appears to have been destroyed, the laboratory may still have slides or previously isolated DNA, which, given advances in the sensitivity of DNA testing, frequently contain enough biological material to conduct successful testing.
The searcher may choose to go to court and move for the court to order custodial agencies to search for the evidence. This type of motion may be necessary if legitimate efforts are not being made to locate the evidence.
Preservation letters. It is extremely important that any evidence collected in connection with the case be preserved. Once counsel has determined that the case will be pursued, a blanket preservation letter should be sent asking the custodial authorities to preserve the evidence. Once potential or specific locations of the evidence have been identified, preservation letters should be sent to the custodial agencies. The letter should indicate the date
on which the evidence was located, the person who indicated that it had been located, and the specific items of evidence that were located. Further, the letter should request that the evidence not be destroyed for an indefinite period of time because it will possibly form the basis of a postconviction relief petition, and that if destruction is nonetheless contemplated, notice should be provided to counsel so that injunctive relief can be sought.
If the evidence has been destroyed, this must be confirmed in writing by the appropriate authority. In addition to the written assertion that the evidence was destroyed, there should be some additional documentation confirming destruction. For example, either a court order mandating the destruction or a log book entry would suffice.
Consultation With Prosecutors
Throughout the search for the evidence, defense counsel should actively consult with the prosecutors and seek their assistance. Defense counsel should contact the prosecutor soon after the request is initiated. A notification letter should be sent to inform the prosecutor’s office that DNA testing has been requested. Defense counsel should send this letter after the initial questionnaire is returned.
Once evidence is found, all efforts should be made to obtain the prosecutor’s consent to access the evidence for purposes of DNA testing. As discussed in chapter 1 and earlier in this chapter, the client must understand that, at an early stage in the process, defense counsel will notify the prosecutor that the request for DNA testing has been initiated and that defense counsel will inform the prosecutor of the DNA testing results.
In situations where the prosecutor is uncooperative or there is disagreement as to the category into which the case falls, defense counsel may have to litigate to obtain access to the evidence for DNA testing. However, defense counsel should encourage and seek cooperation with the prosecutors at every stage throughout this process.
Interaction With Victims and Dealing With the Media
Defense counsel should always instruct the client and the client’s family to refrain from any contact with the victim both prior to and after the testing process. In general, defense counsel should also refrain from any contact with the victim.
Ordinarily, it is preferable to have the district attorney’s office, through its victim services agency, determine if and when it is appropriate to inform the victim that a DNA test has occurred or will occur. It may not be necessary to inform victims that testing will occur, and thereby unnecessarily upset them when the results might be incriminating. If the results are exculpatory and further cooperation is needed from victims or family members in offering “elimination samples,” victim services agencies are best equipped to deal with these issues.
Again, it is also preferable for the prosecutor to take the lead in terms of dealing with the media and the potential publicity surrounding correction of an injustice with regard to postconviction DNA testing.
Defense counsel should become familiar with the law in their State. Every State has its own postconviction remedies and procedures. There may be a statute that specifically allows for postconviction DNA testing. Defense counsel also should determine whether the client has made any previous postconviction motions, regardless of whether they involved DNA issues. In general, these motions should be filed in State trial court. The motion will generally be entitled, “Motion to Access the Evidence for Purposes of DNA Testing,” or it may be filed as a State habeas petition. There may be cases, however, in which all State court remedies have been exhausted and it is necessary to file a habeas corpus petition in Federal district court or to pursue executive clemency. Defense counsel should become familiar with the procedures for executive clemency in their State. There are basically three different types of jurisdictions in which applications will be made:
–States such as New York and Illinois, which have statutes permitting postconviction DNA testing.
–Jurisdictions where, by case law, postconviction DNA testing requests are permitted based on due process grounds. (See, e.g., Commonwealth v. Brison, 618 A.2d 420 (Pa. Super. 1992 )).
–Jurisdictions where newly discovered evidence claims are time barred and applications are made for access to the evidence for the purpose of obtaining executive clemency. [Footnote 19]
If there are no available remedies according to the State’s postconviction statutory scheme, but if it is a category 1 case (i.e., DNA testing will be outcome determinative) then defense counsel should file in court for access to the evidence for purposes of obtaining executive clemency.
Consultation With Experts and Experienced Colleagues
To achieve satisfactory testing arrangements, defense counsel without extensive experience handling DNA matters should consult with more experienced colleagues in dealing with both the postconviction DNA applications and the testing process. Two particularly valuable sources to which attorneys can refer are: the National Institute of Justice study published in 1996 entitled, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial and the 1996 National Research Council’s publication, DNA Technology in Forensic Science.
Deciding on a Mutually Agreeable Laboratory and Methods of Testing
A laboratory and the best methods of testing need to be agreed upon by representatives of both parties. Defense counsel should consider the following issues when entering into these discussions with the prosecutor:
–The different methods of DNA testing that are available.
–The age, type, and amount of evidence available.
–Where and how the evidence was stored.
–The types of technology that a specific laboratory has available.
–How long the laboratory has had the technology in question.
–The reputation of the laboratory.
These factors are especially important where the samples may be old or have degraded and there is not enough sample to conduct more than one test. It is generally possible, for example, for scientists retained by both sides to work out a protocol whereby preliminary tests are performed by one laboratory to determine the quality and the quantity of DNA available. Based on these determinations, the parties can agree on what testing should be performed, who should do it, and who should be present to witness the testing.
It may be necessary to obtain additional samples from the victim and/or any of his or her prior consensual partners. If this is the case, the prosecutor, ideally through victims’ services, should contact the victim to facilitate this process. If the victim or third party will not agree to submit samples for purposes of elimination, then it may be necessary to go to court to obtain an order.
Agreement should be reached, if there is enough sample, to do replicate testing, thereby minimizing the chances of an erroneous result due to contamination, mishandling of samples, or any other factor.
At the very least, provisions must be made to ensure that, if there is not enough sample to conduct replicate testing, a neutral expert can review the results and be involved in establishing the proper testing protocols in light of the facts of each case and on an individual basis.
In category 1 cases (i.e., where testing will determine the outcome) the State should pay. In category 2 cases (where the outcome is questionable) the inmate may have to bear the costs of testing. It is possible that in category 2 cases the inmate may be reimbursed if the results are exculpatory. It should be noted that if the State pays for the testing, then it will most likely use its own State or county laboratory.
Disclosure of DNA Testing Results
Defense counsel should ordinarily expect and agree that the DNA testing results, regardless of outcome, will be made public.
Establishing a Chain of Custody and Preserving Evidence for Testing
The original condition of the evidence and its packaging should be photographed and carefully documented at the time of its discovery and throughout all stages of the postconviction procedures.
The defense attorneys and prosecutors should develop mutually agreeable methods for preserving the chain of custody for the evidence throughout the testing process. This should include photographing the evidence and its packaging when it is received and sent; an evidence labeling system that includes initialing by evidence handlers with times and dates; and, if possible, photomicrographs of relevant slides, especially slides containing
sperm in sexual assault cases.
The evidence should be properly preserved. The most important factor in storing evidence is a dry atmosphere at room temperature.
It is important to continue to carefully preserve the evidence even after postconviction DNA testing has been conducted because future developments in the technology may make it possible to obtain additional results at a later date. For example, there have been several cases where RFLP DNA testing was conducted and the results were inconclusive, but PCR-based testing was conducted years later and conclusive results were obtained. Particularly with the advent of mitochondrial DNA testing, there will be many new cases where future DNA testing will be able to produce results that were not previously obtainable.
Procedures After Postconviction Testing Results Have Been Obtained
If results are favorable to the applicant, defense counsel and prosecutors should join in either a motion to vacate a conviction or, in a jurisdiction where such motions are time barred, an application for executive clemency or a pardon.
If results are favorable to the applicant, but the prosecution nonetheless opposes a motion to vacate, defense counsel must be prepared to litigate a State application for relief, appeal any unfavorable findings, and ultimately seek relief in Federal court.
In jurisdictions where newly discovered evidence claims are time barred, defense counsel should still be prepared to seek Federal relief based on “truly persuasive” evidence of innocence. [Footnote 20]
If DNA results incriminate the applicant, defense counsel should abandon a claim of actual innocence based on DNA testing and make appropriate referrals.
Chapter 6 Recommendations for the Judiciary
Handling Initial Requests
Trial courts routinely receive requests, petitions, motions, or even letters for postconviction relief. Some are filed by defendants, some by their family members, and some by defense counsel on a defendant’s behalf. Rules and statutes govern the manner in which courts act on these postconviction relief requests, based upon time limits, preclusion, and the like.
However, requests for postconviction DNA testing present a somewhat unique issue for the trial court in that the defendant making the request does not have “newly discovered evidence” that would probably overturn a conviction, and in many jurisdictions any request for relief would be time barred. But at the time of conviction, for example, a defendant who claimed innocence may not have had the opportunity to have evidence that was collected by law enforcement officials tested for DNA comparison, or the testing that was available at the time was not as sophisticated as today’s.
In some cases, if the trial court is familiar with the case, a summary determination that DNA testing would not be relevant to the outcome of the case can be made. For example, if the court in a sexual assault case knows that the defense at trial was consent, or in a homicide case that the defense was self-defense, DNA analysis normally would not be relevant.
Assuming that the court does not make its own summary determination, the court’s role, when it receives such a letter or request, should be as a referral source. A copy of the letter or request should be sent to the prosecuting agency. If the inmate or a family member writes the letter, it is recommended that a referral be made to the local public defender’s office, the State criminal defense attorneys’ organization, the local court-appointed counsel, or a national resource center that deals with DNA evidence cases such as the Innocence Project at Cardozo Law School in New York. The court should not notify the victim or victim’s family upon the initial request, but rather should leave the notification, and the decision when to notify, to the prosecutor and victim assistance office.
Information Gathering/Searching for Evidence
Upon referring the request to the prosecution and defense, the court’s role becomes more reactive than proactive. Extensive investigation needs to be done by counsel before a request for DNA testing can be granted. A hierarchy of cases has been described in the introductory chapter of these recommendations that will help the parties and the court determine if the case is suitable for DNA testing. The court will likely be involved only in category 1 and category 2 cases.
Category 1 involves cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results will exonerate the petitioner.
Category 2 involves cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results would be helpful to the petitioner’s claim of innocence, but reasonable people might disagree as to whether the results exonerate him. This category also includes cases where, for policy and/or economic reasons, there might be disagreement as to whether DNA testing should be permitted at all or, for indigent inmates, at State expense. The decision on whether this is a case for testing or retesting may have to be made by a judicial officer.
Category 3 involves cases in which biological evidence was collected and still exists. However, if the evidence is subjected to DNA testing or retesting, favorable results would be inconclusive.
Category 4 involves 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 cases, postconviction relief on the basis of DNA testing is not possible.
Category 5 involves cases in which a request for DNA testing is frivolous.
The court can play an important role in helping obtain access to evidence prior to testing. This is a crucial issue in that it allows the “screening” process to continue. This screening serves as a weeding out of cases in which DNA evidence will be irrelevant. The court should be willing to enter orders for the parties to gain access to evidence that has been preserved, whether in a laboratory, police property room, clerk’s office, or prosecutor’s office. This evidence may include clothing or other crime scene evidence that was never before examined for biological evidence
because it is not visually apparent.
As information is gathered and counsel search for the evidence, the court may be called on to issue certain orders. Upon request of counsel for the State or defendant, or jointly, or sua sponte, it is recommended that the court issue an evidence preservation order to the investigating agency, clerk of court, crime laboratory, prosecutor’s office, or any other agency in a jurisdiction that may have evidence that might be subject to DNA testing. This is done to prevent destruction or disposal of the evidence, which would preclude testing in the future. The evidence to be preserved may include items not used at trial, but which were collected and might contain DNA evidence. At this stage, the court also can help determine if any orders were ever entered for destruction or disposal of evidence.
In appropriate circumstances, at the request of either party, or sua sponte, the court might consider whether a “no contact with the press” order should be issued. The court should be particularly sensitive to victim issues in this regard.
Once it is determined that some evidence still exists and that DNA testing or retesting could lead to a different result in a case, it is recommended that the court set an informal conference with counsel. It may also be helpful to have a representative of the State crime laboratory or another laboratory acceptable to both parties present. At the informal conference, the court should do all it can to foster cooperation between the parties. The court should seek agreement between the parties or may need to make a determination as to several issues that should be raised in the informal conference, such as:
–The method of preserving evidence for chain-of-custody purposes during the testing process.
–The type of DNA analysis to be utilized.
–The laboratory that will perform the testing. It may be necessary for the court to enter an order to release certain evidence to a laboratory for testing. Prior to any release, both sides should be notified and given an opportunity to be heard.
–Determination of the estimated cost of the testing and who will pay for it. This may be determined by local policy, State statute, agreement between the parties, or court order. In category 1 cases, the testing will generally be at State expense, but often the petitioner or his family will have to pay, with reimbursement made if there is an exoneration or exclusion.
–Determination of the amount of sample available for testing and replicate testing. If the entire amount of sample will necessarily be consumed, arrangements should be made for a defense or prosecution expert to observe the testing procedures, either by counsel or upon order of the court. The court should try to get the parties or their experts to agree to a protocol to be used. Otherwise, the court may be called upon to determine the protocol to be followed.
–Determination of whether it will be necessary to test the victim’s relatives or third parties or whether additional samples need to be obtained from the victim. If it is so determined, take the following action:
–Ensure that contact with the victim is minimal, only when necessary, and through the victim services or advocacy office.
–Offer the victim a choice of what type of sample to provide, if at all possible (buccal swab, blood, hair, etc.).
–Attempt to seek stipulations or agreements between counsel on additional samples to be taken from others. If there is no agreement, the court will likely have to enter an order.
At this stage, it may be appropriate for the court to consider the use of “court experts” or a panel of the same, as has been done in complex civil cases with the use of special masters to assist in screening and evaluating evidence.
The court also should be aware of the need to preserve some of the sample, if at all possible, for investigation and testing of future suspects if the defendant is exonerated. This is another reason why the issue of replicate testing should be considered with input from laboratory personnel.
Procedures After Postconviction Testing Results Have Been Obtained
If the results of the testing are favorable to the inmate and no alternative explanations exist, the court should be prepared to grant a joint request by, or a motion from the defense or prosecution, to vacate the conviction in jurisdictions where postconviction relief is not time barred. In jurisdictions where a time bar exists it is recommended that the court note its findings and recommendations as an attachment to an application for executive clemency or pardon.
In the absence of a joint motion or stipulation for dismissal, if DNA testing results seem to exculpate the defendant because of an exclusion, an evidentiary hearing should be set to determine if there is a reasonable probability of a change in the verdict or judgment of conviction. Not all exclusions will result in exonerations. If the court makes such a finding, a new trial should be set, and the defendant’s release conditions should be reexamined.
It is possible that, in States where a time bar exists for petitions for postconviction relief based on newly discovered evidence, the parties may stipulate to a waiver of the time bar or the court may use its inherent powers to prevent what may be a miscarriage of justice. This would only apply in cases where dispositive evidence of exoneration exists. The court, for example, could order a defendant’s release from custody pending a decision on executive clemency.
If a petition for postconviction relief is granted, the court should ensure that the prosecution or a victim advocacy organization makes contact with the victim prior to any public release of the information to reduce additional emotional trauma and surprise.
If testing results further inculpate the defendant, it is recommended that the court promptly act upon a motion to dismiss the petition.
Recommendations for Victim Assistance
Victims and surviving family members confront a number of issues and events following the conviction and sentencing of the defendant. Rarely does the impact of the crime end with the incarceration of the offender. Convicted defendants appeal their sentences, come up for parole, and sometimes request that evidence undergo DNA testing. All of these postconviction events may be upsetting to victims and families of murder victims and are painful reminders of the suffering and loss associated with the crime. It is extremely important that crime victims and surviving family members are provided with information and approached with great sensitivity. This is especially critical when the conviction was based primarily upon eyewitness identification by the victim. Victims and their families may need access to special services to help them cope with this new case development.
It is important to note that a number of States passed victims’ rights statutes that require notification of victims, including notification of appeals proceedings, prison release, and application for pardon or commutation of sentence. Agencies involved in postconviction DNA cases should make certain they are complying with any applicable State statutes. (A compendium of State statutes addressing notification of victims is included in the appendixes.)
Notification to victims of requests for DNA testing should be made by the prosecutor, preferably through a victim assistance specialist or advocate. When possible, notification should be made by someone who worked with the victim in the past. One person should be designated as the primary contact person for the victim. If the prosecutor’s office does not have a victim assistance program, support and other assistance for the victim should be sought from a local victim assistance program, such as a rape crisis center or a homicide survivors’ support program.
When to notify a victim is ultimately a judgment call on the part of the prosecutor and victims’ advocate and should be based on the status of the request and the emotional and mental health status of the victim. Initial discussions regarding testing of DNA evidence should be informal and low profile. If DNA testing is not possible or turns out to incriminate the applicant, there may not be any reason to disturb the victim or his or her family. The timing and manner of notification is extremely important when the victim has a history of severe depression or suicidal ideation. While care should be taken to avoid upsetting victims or survivors unnecessarily, it is better to provide information to victims as early in the process as possible. Initial notification should be made before a motion to release the evidence is made to the court or before there is a chance the victim or surviving family members will hear or read it in the media or from other sources.
Victims and survivors need to be provided with a simple but thorough explanation of how DNA testing may be used in their case, the process and procedures used, and the potential outcomes of testing. It will help to provide written information about DNA testing so victims and survivors will have a chance to absorb complex information at their own convenience. (Sample brochure content is included in the appendixes.)
Victims and survivors should be provided with information about the status of the DNA testing request, how they will be notified about future events, and what types of victim assistance are available.
Searching for Evidence/Requesting DNA Samples From Victims and Third Parties
Unreasonable and intrusive sample collection should be avoided to prevent retraumatization of victims. Access to third parties should be permitted for elimination purposes only. When requesting samples from a victim after conviction, prosecutors and victims’ advocates should weigh the level of trauma experienced by the victim at the time of the crime and the potentially traumatic impact of testing the victim along with the possibility of a determinative outcome.
Requests should be made only through the prosecutor, investigator, or victims’ advocate.
The technical aspects of testing and the significance of the samples requested should be explained in detail so the victim understands how it will be collected, how it will be used, and what testing results may mean. It should be made clear to victims and third parties that DNA samples are to be used for elimination purposes only.
Victims, or third parties associated with the victim, may refuse to provide samples for testing. Prosecutors and advocates should strongly encourage voluntary compliance by victims and third parties in order to avoid orders by the court for testing. Courts should be strongly discouraged from ordering victims to provide samples for testing except as a last resort.
Victims who consent to testing should be provided with as much choice as possible with regard to the timing, method, and location of the testing. The preference would be to use the least invasive method. When possible, the victim should be allowed to choose the type of sample to be used, such as buccal swab rather than a blood sample.
Prosecutors or victims’ advocates should provide escort and transportation assistance for testing, hearings, and meetings, if needed.
Ensuring Privacy of Victims and Survivors
Steps need to be taken to ensure that information about the location of victims and survivors remains confidential. Contact with victims should only be made by prosecutors or victims’ advocates. Addresses and phone numbers of victims and survivors should not be provided to the defendant’s counsel or other representatives and should not be included in court documents.
Victims and survivors should be reminded of their right to refuse media interviews.
Assisting Victims After Postconviction Results Have Been Obtained
Prosecutors and victims’ advocates should ensure that information about testing results is provided to the victim or survivors in a timely fashion. Information should be provided in person, if possible. The more critical the information, the more important it is to provide it in person, or at least by telephone. Victims should be provided with a thorough explanation of the meaning and consequences of testing results.
Prosecutors and victims’ advocates should ensure that counseling resources are available through their offices or a community-based assistance program.
If testing results produce exculpatory evidence, particularly in mistaken eyewitness identification cases, victims may still believe the defendant is guilty. Victims may be upset and angry. The credibility of sexual assault victims is usually attacked in trial, and a conviction is viewed as a significant validation of the victim’s credibility. To face having his or her credibility called into question once again will cause tremendous distress. Victims or survivors will need a great deal of support and an opportunity to express their anger and frustration. Some victims may feel terrible guilt about their part in convicting an innocent person.
A North Carolina man convicted and sentenced to life in prison for two rapes he did not commit was exonerated a decade after the crimes occurred because of DNA testing. After the attacks occurred on the same night in 1984, both victims went to the hospital and full “rape examination kits” were completed. Evidence included a flashlight found in the man’s apartment that was identical to one stolen from the second victim; shoes found under the man’s bed were missing insoles similar to foam found at the scene of the first rape; and the first victim had identified the man as her attacker. The man was convicted of the rape of the first victim and sentenced to life in prison. However, the North Carolina Supreme Court overturned the verdict and ordered a new trial, scheduled for 1987.
Meanwhile, the defendant met a fellow inmate in prison who bore a strong resemblance to the composite sketch used in his case. The other inmate denied involvement, but reportedly bragged to other inmates that he had committed the rapes. During the new trial, both victims testified against the defendant. Both the victims and the jury were unconvinced that the man the defendant had met in prison was the real assailant. And the court withheld evidence of the man’s alleged confession. The defendant was convicted of both rapes and sentenced to two 1ife sentences plus 55 years in prison.
In 1994, the defendant learned about DNA testing (a procedure unavailable at the time of his trials), and filed and won a motion for DNA testing. In spring 1995, Burlington Police turned over to the court all case evidence containing semen or other bodily fluids. Samples from the first victim had deteriorated and could not be tested, but those from the second victim provided a breakthrough. On a tiny vaginal swab, scientists found sperm. Subjected to a DNA testing procedure known as polymerase chain reaction (PCR) testing, that sample did not match to the defendant. He could not have committed the crime.
The State DNA database matched the sample to the other prison inmate, who confessed to both rapes. In 1995, almost 11 years after the rapes and 10 1/2 years after being taken into custody, the defendant was cleared of all charges and released from prison.
Reassure victims that they did the best they could at the time and that memory can be fallible. It may help to remind victims that DNA technology, which may not have been available at the time of the original investigation, can be an important tool in making sure the right person is convicted. Remind victims or survivors that the criminal justice system is not perfect, and emphasize the importance of knowing the truth and identifying the right perpetrator to ensure justice and to prevent future victimization of other individuals.
Also, it may help to inform victims of the following:
–Even the Innocence Project concedes that, in many cases in which postconviction requests are made for DNA testing, the results confirmed the identity of the convicted person as the true perpetrator. These confirmations may have a significant impact on any future decisions regarding probation or parole.
–The victim should be assured that everyone in the system, particularly prosecutors and judges, will make sure that ambiguous results, e.g., results that do not clearly exonerate the perpetrator, will not result in a new trial or weaken the conviction.
–If postconviction testing of DNA evidence results in a valid exclusion, the victim can be reassured that growing DNA databases will increase the future likelihood of identifying the true perpetrator in his or her case. DNA databases will also make it easier to accurately identify and link perpetrators to crimes in future cases.
A rape case was solved 6 years after it occurred because of a DNA databank. A Virginia woman was robbed and raped by a masked man who had dragged her from her house into a wooded area in 1989. The woman reported the attack and visited a hospital where a “rape examination kit” was completed and DNA and other evidence was collected from her body and clothing. For 6 years, she feared the man would come back, as he had threatened. Then a forensic scientist for the Commonwealth of Virginia notified her that the man who had raped her had been identified and was serving time for a separate offense. When run through Virginia’s DNA databank, the inmate’s DNA had produced a match or “hit” with the DNA sample of the woman’s assailant collected years earlier. Later, the woman learned that her assailant had gone to jail only months after raping her. The necessary DNA evidence had been in the Commonwealth’s possession but was not analyzed sooner because of a backlog in its DNA databank. By eliminating or at least reducing such backlogs, States will save victims like her years of suffering and allow them to begin healing much sooner.
Chapter 8 Recommendations for Laboratory Personnel
These recommendations are addressed to any laboratory personnel who are contacted regarding postconviction requests for DNA testing. This would include laboratories that are being contacted: 1) regarding work previously done on evidence in the case, or to determine whether any evidence remains, and its location; 2) as consultants to advise attorneys, the judge, or the defendant regarding DNA testing; and/or 3) to perform DNA tests This chapter also covers considerations for selecting a laboratory for DNA testing.
Handling Initial Requests
The laboratory may be contacted by various individuals (e.g., defendant, defendant’s family, prosecuting attorney, defense attorney, judge) regarding postconviction relief. Someone in the laboratory must determine the appropriate response in light of the stage in the postconviction process at which the laboratory is being contacted. For instance, if the laboratory is contacted directly by the defendant or the defendant’s family seeking information regarding postconviction relief, the laboratory should refer the individual(s) to the prosecuting attorney’s office and/or the defense attorney’s/public defender’s office. Depending on the laboratory’s policies, information may be provided regarding the existence of any evidence remaining in the laboratory and its suitability for testing. If the laboratory is contacted by an attorney or a judge, the laboratory should provide the requested information and, most importantly, preserve the samples in an appropriate manner for future testing. Also see the section below regarding the role of the expert(s) in a laboratory for further information.
Role of the Expert in the Laboratory
Laboratory Previously Involved in the Case
A laboratory previously involved in the case may be requested to provide information regarding:
–The meaning and limitations of any previous test results obtained, including all serological and/or DNA testing and all results reported as inconclusive regardless of whether they were used at the trial or whether evidence still exists for retesting.
–Whether any evidence remains.
–The location and storage history of any remaining evidence.
–The laboratory’s policies for the release of evidence to the defendant.
–The laboratory’s policy for providing discovery (laboratory case notes and copies of data, or laboratory reports) regarding the disclosure of previous test results. The laboratory may also be requested to serve as a consultant to the attorney(s), judge, or defendant (see below) regarding DNA testing.
In a postconviction proceeding, the laboratory will likely be requested by the attorney(s) or ordered by the court to retain and preserve any evidence that remains in the laboratory’s possession. The laboratory should locate the evidence and ensure that it is stored in a proper manner to preserve the samples for future DNA testing. Generally, stains, bones, and teeth should be stored dried at room temperature, 4 degrees C, or frozen; liquid samples should be stored frozen; and tissue samples should be stored frozen (preferably at -70 degrees C).
Laboratory as a Consultant
A laboratory may be requested to serve as a consultant to the attorney(s), the defendant, and/or the judge. It is important that expert personnel serve in a fair and unbiased manner as consultants to advise on issues regarding DNA testing in the particular postconviction proceeding, such as:
–The limitations and meaning of test results previously obtained.
–What evidence could and should be tested that would likely yield
–What DNA tests should be considered and what are the limitations and advantages of each test.
–Which DNA testing laboratory should be selected to do the testing.
–The possible results and the meaning of each of those possible results.
–Whether samples from additional individuals are required for the testing.
DNA Testing Laboratory
The DNA testing laboratory, in addition to serving as a consultant to the attorney(s), the defendant, and/or the judge, has an obligation to perform quality DNA tests according to accepted procedures and to interpret and report the results accurately and without bias. The laboratory expert may be required to present the test results and the conclusions derived from the test results in court.
Considerations for Selecting a Laboratory for DNA Testing
There are many issues that may need to be considered when selecting a laboratory to perform DNA testing in connection with a postconviction proceeding. Some of these issues are outlined below:
What DNA tests are available in the laboratory?
The DNA tests available in a laboratory need to be considered when selecting a laboratory for testing postconviction relief samples. Several questions that should be addressed are:
What is the size and type of the sample?
The size and type of the sample will determine which DNA tests can be performed. Samples available for testing are often quite small and may not have been properly stored, which may have caused the degradation(breaking down) of the DNA. Either of these situations will make the samples unsuitable for RFLP testing (see chapter 3 for further information on RFLP testing); therefore, the selected laboratory must have PCR testing capabilities. If the DNA is severely degraded, or the sample to be tested is a hair shaft or dried bone, PCR testing of nuclear DNA may not yield results, and a laboratory that performs mitochondrial DNA testing should be considered.
What is the level of discrimination required in the testing?
If the desired testing outcome is to simply distinguish one known individual from another known individual (e.g., the consensual partner from the perpetrator in a sexual assault case), then the discriminatory capabilities of the test methods available in the laboratory may not matter. However, if the test must be highly discriminatory so as to eliminate falsely accused individuals, particularly if any individuals are related, then the discrimination capabilities of the tests available in the laboratory should be considered. A laboratory should be selected that has the testing capabilities to address the level of discrimination required.
Have samples been tested previously that will be used for comparison purposes?
If the samples to be tested will be compared with results from samples tested previously (e.g., known individuals in convicted offender databases, samples from other possible serial sexual assault cases, results from samples tested in the laboratory selected by opposing counsel), then the selected testing laboratory must have the appropriate tests available so that the data may be compared.
Will the test results be compared to those in a DNA database?
If the defendant is found to be innocent of a crime for which he or she was convicted based on being excluded as the donor of the DNA from a relevant sample, then the prosecutor may want to compare the DNA test results to those in databases of convicted offenders (e.g., CODIS) to help identify the true perpetrator. In this situation, it will be important to use DNA tests compatible with the database to be used for comparison purposes.
What experience does the laboratory have?
A laboratory should be selected that has experience using the particular DNA test method to be used on the type(s) of forensic samples that will be analyzed in the postconviction relief case. Information regarding validation studies performed by the laboratory and its history of obtaining reliable results on samples similar to those being tested in the postconviction case with that test method may be requested.
Is there an expert(s) available for consultation and testimony?
The experience and availability of experts from the laboratory to assist the attorneys and the court in decisions regarding the appropriate samples to be tested, the test methods to be used, the meaning of the results, chain-of-custody issues, and the need for testing additional samples from other individuals should be considered. It may also be important to consider the qualifications of the expert(s) and his or her experience in presentation of DNA data to the court.
Is the laboratory accredited?
Accreditation is a process in which a laboratory undergoes a review and onsite inspection by individuals from other DNA testing laboratories. This process generally requires a review of the procedures followed in the laboratory for DNA testing, security, evidence handling, protocol validation, and documentation of results, proficiency testing, and quality assurance to determine if they meet accepted guidelines. The laboratory is accredited if it meets the specified criteria for accreditation. Other review processes include certification and internal and external audits of the laboratory.
Does the laboratory do testing for the prosecution or the defense?
It may be important to consider the laboratory’s policies regarding those for whom it does testing. Some laboratories may only be available for testing by the State or by the defense. Some laboratories may be retained by either the defense or the prosecution but may not be able to work for both parties jointly; for instance, a particular laboratory’s policy may preclude a prosecutor and defense counsel from agreeing to share decisions about testing and to both receive test results. The perceptions of bias in the testing laboratory may also require consideration.
What level of confidentiality does the laboratory maintain?
The laboratory’s policies regarding confidentiality and discovery may need to be considered. Although it is recommended that all results from postconviction relief testing be available to the prosecution, the defense, and the court, there may be circumstances in which the results of the testing must remain confidential. It may also be important to understand if the test results from a particular postconviction case will be usable in other ongoing investigations of unsolved cases. For example, will the defendant’s DNA profile be entered into any laboratory or State database for future comparison purposes?
Is the laboratory a public or private laboratory?
This may be an important consideration for determining whether the laboratory can be retained by either the prosecuting or defense attorney or both. It may also affect whether the counsel who did not request the DNA tests has access to the laboratory’s experts for consultation, the availability of expert testimony and discovery, the cost of testing, and confidentiality issues.
What materials are available from the laboratory for discovery purposes?
At times, an attorney, an expert, or the court may request documentation of the DNA tests performed in a postconviction case, or information about quality control/assurance, chain of custody, validation studies, proficiency tests, and/or information regarding the databases used. It may be important to consider what materials are available from a laboratory before doing the DNA testing if this could become an issue in a particular case.
What is the laboratory’s policy for retaining untested portions of samples and/or DNA extracted from a sample?
Samples tested in connection with postconviction requests are often quite old and small, particularly if RFLP testing had been attempted previously. There may only be a sufficient sample to do a limited number of tests. In this situation, it is important to understand the laboratory’s policy regarding destruction of the entire piece of evidence versus retention of a portion of the untested sample as well as a portion of the extracted DNA for possible future testing. The laboratory should test only the amount of sample needed to obtain reliable results and should retain any un tested sample and/or extracted DNA whenever possible so that repeat or additional testing can be performed at a later time. (See the section, Retention of Samples for Future Testing, below, for further discussion.)
Does the laboratory permit outside experts to observe testing?
Samples tested in postconviction relief cases are often limited in size (e.g., a single hair root or a very small bloodstain) and cannot be divided prior to isolating the DNA from the sample. Since the sample will be destroyed during DNA testing, if there is only enough sample for one test, the attorney who did not select the testing laboratory may request that an expert be permitted to observe the DNA testing. Some States have statutes or case law permitting a defendant the right to have the testing witnessed when evidence will be consumed (e.g., Colorado, California). In these situations, it will be important to select a laboratory that permits outside experts to observe the testing and to understand its policies concerning outside expert witnesses.
Has the laboratory done previous testing in this case?
For continuity in testing or for consideration of potential bias, it may be important to consider whether the laboratory has already been involved in testing for the case.
Selection of Samples for Testing
Care should be taken in selecting a single sample (or at least the minimum number of samples) for testing that will give meaningful/useful results for a particular case. There is no point in testing samples in category 5 cases. (See discussion in chapter 3, Determining Which Samples to Test). Criteria for selection of the sample may include:
–Which sample would prove innocence if the defendant is excluded as a donor.
–Which sample is of sufficient size and quality to likely give reliable and interpretable test results.
–Which sample is of sufficient size to permit repeat or additional testing at a later time.
–Which probative sample has been collected, preserved, and handled appropriately to ensure the integrity of the sample results.
–Which sample has sufficient chain-of-custody documentation.
–Are additional samples available that have not been evaluated previously? (See discussion in chapter 3 on reasons for inconclusive results.)
The availability of and necessity for samples from known individuals who should be tested for exclusionary purposes will need to be carefully considered. For example, in sexual assault cases where 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, 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.
Retention of Samples for Future Testing
It is highly recommended that samples be split whenever possible before and during the testing process. The laboratory should only test the amount of sample needed to obtain reliable and interpretable test results; any untested sample should be retained for possible future testing. Once DNA is obtained from a sample, the laboratory should assess the quality and quantity of the DNA, whenever possible, and consult with the individual who submitted the evidence regarding tests to be done. Again, only the amount of DNA required to obtain reliable and interpretable test results should be consumed in the testing; any remaining DNA should be preserved for future testing. The preserved and untested sample remains available for:
–Repeat testing by opposing counsel. The prosecuting attorney or the defense attorney may request a portion of the untested sample to repeat the testing or have additional testing done in a laboratory of his or her choice.
–Retesting if there is a problem. If a problem arose in interpreting the results, or an error occurred during the first test, an untested portion of the sample will be available to repeat the test.
–Additional testing to exclude a falsely accused individual. Testing at additional regions of the DNA may be required to exclude a falsely accused individual. Untested areas of the sample or remaining DNA may be used for these additional tests.
–Additional testing to aid in the interpretation of the test results. In situations where more information would be helpful for interpreting the test results, testing at additional regions of the DNA is advised. For example, the additional tests could confirm that the DNA sample contains a mixture of DNA from two or more individuals and may aid in determining whether the defendant can be excluded as one source of the DNA.
–Future testing when new technologies become available. A portion of the sample and the DNA should always be retained, whenever possible, for testing in the future when additional technologies become available. Many samples that proved inconclusive with RFLP testing have been retested using PCR and the results have been exonerative. [Footnote 21] In contrast, samples that were consumed during RFLP testing are now not available to the defendant for PCR testing. Samples that were inconclusive with nuclear PCR testing may be suitable for mitochondrial DNA testing and could lead to exonerations in the future. Other tests not now available could be used in the future to confirm convictions or to exonerate defendants.
–Additional testing to aid in identification of the perpetrator when the convicted individual has been excluded. If the DNA test performed in a postconviction relief case results in the exclusion of, and thereby establishes the innocence of, the convicted individual, the prosecutor may require additional testing of the evidence sample to aid in the identification and prosecution of the real perpetrator of the crime.
Quality Assurance Standards for Forensic DNA Testing Laboratories and Technical Working Group on DNA Analysis Methods (TWGDAM) Guidelines: Validation With Nonprobative Evidence
The DNA Advisory Board has issued “Quality Assurance Standards for Forensic Testing Laboratories” and the Technical Working Group on DNA Analysis Methods (TWGDAM) has made recommendations for a laboratory doing forensic DNA testing. Both of these documents (Standard 8.1.3 and Guideline 22.214.171.124) advise that validation of any new DNA test system include testing with nonprobative evidence samples. The purpose is to provide experience with and an understanding of how forensic samples perform with a new test system. Different definitions of Nonprobative evidence have been used by crime laboratories, including adjudicated cases (convictions) or cases where the defendant confessed to the crime. When laboratories are training analysts and/or validating new DNA test systems, discretion should be used in selecting samples from “Nonprobative evidence” samples. To prevent the unfortunate and unnecessary destruction of evidence that may be important in a postconviction relief proceeding, the following criteria are provided for the selection of test samples from actual forensic cases:
–Only select samples where sufficient original and untested evidence samples will remain to do a minimum of two to three DNA tests using currently available DNA technology. For example, if four vaginal swabs remain after successfully using one for RFLP testing previously, then one to two swabs could be used for validation studies because the one untested swab would be sufficient for several PCR tests. Similarly, a portion of a large bloodstain could be used for validation studies without jeopardizing any future testing of the stain.
–Only test samples that are less informative regarding the crime than other samples. For example, if several samples containing sperm have been associated with a sexual assault, select the sample for validation studies that would be duplicative and less informative than another sample, such as a panty crotch or a semen stain on a blouse, rather than the vaginal swab. Caution is advised because making these determinations requires specific information regarding the crime, such as whether the perpetrator ejaculated in the vagina, whether there were previous consensual partners, which m ay cause mixed DNA results from the vaginal swab and make the swab the less informative sample, or whether there were multiple assailants, in which case every semen stain may be probative.
–Use DNA isolated from previous validation studies whenever possible rather than consuming additional evidence in a case.
ABO blood typing: A commonly used genetic typing test that uses antibodies to detect variations on the surface of human red blood cells. Individuals are typed as having A, B, O, or AB type blood by testing liquid or stains from body fluids (e.g., blood, saliva, vaginal secretions). One out of every three randomly selected pairs of people have the same ABO blood type.
Amelogenin: A gene present on the X and Y sex chromosomes that is used in DNA identification testing to determine the gender of the donor of the DNA in a biological sample.
CODIS: Combined DNA Index System. A collection of databases of DNA profiles obtained from evidence samples from unsolved crimes and from known individuals convicted of particular crimes. Contributions to this database are made through State crime laboratories and the data are maintained by the FBI.
D1S80: A region of the DNA on chromosome 1 that contains a 16-base pair DNA sequence that is repeated in tandem from 14 to ~40 times; this region has been commonly tested using PCR with the AmpFLP D1S80 PCR Amplification Kit for human identification testing.
D7S8: Polymorphic region of DNA on chromosome 7.
DNA: Deoxyribonucleic Acid. Often referred to as the “blueprint of life,” DNA is the genetic material present in the nucleus of cells which is inherited half from each biological parent. (See chapter 3 for additional information.)
DNA profile: For an individual, the DNA types present at a particular set of tested DNA regions.
DQA1 (DQa): A polymorphic gene in the Human Leukocyte Antigen (HLA) region of chromosome 6 that has been well studied and analyzed for many purposes including paternity testing, transplantation biology, and human DNA identification testing. This region has been commonly tested using the AmpliType [registered trademark] HLA DQa Forensic PCR Amplification and Typing Kit and the AmpliType [registered trademark] PM + DQA1 Amplification and Typing Kit for human DNA identification testing.
Exclusion: The elimination of an individual as the source of a biological sample. This occurs when one or more types from a specific location in the DNA of a known individual are not present in the type(s) for that specific location in the DNA obtained from an evidence sample. (See chapter 3 for additional information.)
Exemplar: A biological sample (e.g., blood, saliva) collected from a known individual to be used for comparison to DNA test results from evidence samples. Also referred to as a standard. (See chapter 3 for additional information.)
GC: Group specific component (see PM).
GYPA: Glycophorin A (see PM).
HBGG: Hemoglobin G gammaglobin (see PM).
Inclusion: The inability to exclude an individual as a possible source of a biological sample. This occurs when all types from a specific lo cation in the DNA of a known individual are also present in the types for that specific location in the DNA obtained from an evidence sample. (See chapter 3 for additional information.)
Inconclusive: A situation in which no conclusion can be reached regarding testing done due to one of many possible reasons (e.g., no results obtained, uninterpretable results obtained, no exemplar/standard available for testing).
Laches theory: Undue delay in asserting a legal right or privilege.
LDLR: Low density lipoprotein receptor (see PM).
Mitochondrial DNA: The DNA found in the many mitochondria found in each cell of a body. The sequencing of mitochondrial DNA can link individuals descended from a common female ancestor. (See chapter 3 for additional information.)
Nuclear DNA: The DNA found in the nucleus of a cell. DNA testing using RFLP, DQA1 (DQa), PM, D1S80, or STRs screens nuclear DNA.
PCR: Polymerase Chain Reaction. A process used in DNA identification testing in which one or more specific small regions of the DNA are copied using a DNA polymerase enzyme so that a sufficient amount of DNA is generated for analysis. (See chapter 3 for additional information.)
PM: (Also referred to as “polymarker”). A PCR-based test (AmpliType [registered trademark] PM PCR Amplification and Typing Kit and AmpliType [registered trademark] PM + DQA1 PCR Amplification and Typing Kit) commonly used since 1994 for human DNA identification testing. The kit types five specific regions of the DNA: LDLR (low density lipoprotein receptor), GYPA (glycophorin A), HBGG (hemoglobin G gammaglobin), D7S8, and GC (group specific component).
Polymorphism: Variations in DNA sequences in a population that are detected in human DNA identification testing.
Restriction enzyme: A protein used in RFLP testing that cleaves a double-stranded DNA molecule at a specific DNA sequence (e.g., HaeIII cleaves at GG down arrow CC).
RFLP: Restriction Fragment Length Polymorphism. A process used in DNA identification testing in which size (fragment length) differences at specific regions of the DNA are detected. (See chapter 3 for additional information.)
STR: Short Tandem Repeat(s). Small regions of the DNA that contain short segments (usually 2, 3, 4, or 5 bases long) repeated several times in tandem (side-by-side). Thirteen STR sequences have been selected for the Combined DNA Index System (CODIS). (See chapter 3 for additional information.)
Substrates: Any background material upon which biological sample has been deposited (e.g., clothing, glass, wood, upholstery).
TWGDAM: Technical Working Group for DNA Analysis Methods. An organization made up largely of individuals from the FBI and public crime laboratories that published guidelines for DNA identification testing. Y Chromosome: The DNA in the nucleus of a cell that is present only in males. Testing of DNA from the Y-chromosome can be used to link males descended from a common male ancestor.
Appendix I Resources
American Society of Crime Laboratory Directors
c/o NFSTC, SPJC Allstate Center
3200 34th Street, South
St. Petersburg, FL 33711
DOE Human Genome Program
Department of Energy, Life Sciences Division
Office of Biological and Environmental Research
U.S. Department of Energy
19901 Germantown Road, SC-72
Germantown, MD 20874-0963
NIH National Center for Human Genome Research
Building 31, Room 4B 09
31 Center Drive
Bethesda, MD 20892
American Bar Association
750 North Lake Shore Drive
Chicago, IL 60611
Criminal Justice Section
740 15th Street N.W.
Washington, DC 20005
American Prosecutors Research Institute
99 Canal Center Plaza, Suite 510
Alexandria, VA 22314
Association of Federal Defense Attorneys
8530 Wilshire Boulevard, Suite 404
Beverly Hills, CA 90211
Conference of State Court Administrators
c/o National Center for State Courts
300 Newport Avenue
Williamsburg, VA 23185
Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY 10003
National Association of Attorneys General
750 First Street N.E.
Washington, DC 20002
National Association of Criminal Defense Lawyers (NACDL)
1025 Connecticut Avenue N.W., Suite 901
Washington, DC 20036
National Center for State Courts
300 Newport Avenue
Williamsburg, VA 23185
National District Attorneys Association
99 Canal Center Plaza
Alexandria, VA 22314
National Legal Aid & Defender Association
1625 K Street N.W.
Washington, DC 20006
National Center for Victims of Crime
2111 Wilson Boulevard, Suite 300
Arlington, VA 22201
National Coalition Against Sexual Assault
125 North Enola Drive
Enola, PA 17025
National Organization of Parents of Murdered Children, Inc.
100 East Eighth Street, B-41
Cincinnati, OH 45202
Office for Victims of Crime
U.S. Department of Justice
810 Seventh Street N.W.
Washington, DC 20531
Office for Victims of Crime Resource Center
Rockville, MD 20849-6000
National Criminal Justice Reference Service (NCJRS)
National Institute of Justice
810 Seventh Street N.W.
Washington, DC 20531
National Criminal Justice Reference Service (NCJRS)
P.O. Box 6000
Rockville, MD 20849-6000
Phone: 800-851-3420 or 301-519-5500
TTY Service for the Hearing Impaired: (toll free) 877-712-9279; (local)
Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, Research Report, by Edward Connors, Thomas Lundregan, Neal Miller, and Tom McEwen. Washington: DC: U.S. Department of Justice, Office Justice Programs, National Institute of Justice, 1996. NCJRS, NCJ 161258.
DNA Technology in Forensic Science (NRCI). Written by a committee of the National Research Council, it is the first report by this group, which largely endorsed DNA typing but balked on the statistical issues over a concern for possible differences in different populations and suggested ceiling numbers. Washington, D.C.: National Academy Press, 1992.
The Evaluation of Forensic DNA Evidence (NRCII). Written by a committee of the National Research Council, it is the second report by this group, which focuses mostly on statistics, rejecting the need for the previously suggested ceiling methods. Washington, D.C.: National Academy Press, 1996.
“Reference Guide on Forensic DNA Evidence,” by David H. Kaye and George F. Sensabaugh, Jr., in Reference Manual on Scientific Evidence, 2nd Edition. Washington, D.C.: Federal Judicial Center, forthcoming.
Appendix II State Statutes on Notification of Victims Victims’ Rights: Notification, Consultation, Attendance, and Participation After Trial
In 1998 the Vera Institute of Justice began an extensive review of Victims’ Rights legislation in all 50 States. Employing a standardized 215-item coding form, our legal analysts evaluated more than 10,000 pages of legislation concerning victims’ rights to notification, consultation, participation, restitution, compensation, and services. The results of this evaluation are currently being assembled in a large research database that will include information about victims’ rights at all stages of the criminal justice process.
With this project for the Office for Victims of Crime (OVC), we were able to focus particularly on legislative provisions regarding victims’ rights in the post-trial phases of the criminal justice process.
The information presented is based only on a review of legislation. It does not address the implementation of victims’ rights through State regulations or established practices.
The seven tables included here are:
–Table 1. Defining Victim–Notification and Participation. Looks at the definition of crimes to which notification and participation rights apply. The definition operating in these cases generally applies to consultation and the right to attend as well. The chart does not include definitions of the individuals to whom the rights apply since they are generally consistent for all States. They include the person affected by the crime, guardians of a minor or incompetent, and the immediate family of a deceased victim. The definitions of family vary slightly by State, being broader or narrower. The chart also excludes routine and obvious limitations. For example, most States exclude those arrested or in custody for the crime from the definition of victim.
–Table 2. Notifications Related to Sentencing. Provides information about notification rights relevant to the sentencing phase of the process. Where the legislation provides specific information about deadlines or officials responsible for notification that information is included in the
–Table 3. Notification–Postsentencing Proceedings. Affords a view of notification after sentencing proceedings, including details and qualifications wherever possible.
–Table 4. Notification–Offender Death, Escape, or Release. Offers information about notifications related to victim notification of offender release, escape, or death. This table distinguishes between automatic notifications and those provided only to victims who make a special request. Merely keeping a current telephone number or address on file was not treated as a request.
–Table 5. Consultation–After the Trial. The large number of blank cells for the postsentencing phases indicates that consultation during this phase is rarely addressed directly in the legislation.
–Table 6. Right to Attend–Post-Trial Proceedings. Refers to rights to attend post-trial proceedings. This chart does not include certain routine qualifications, including the exclusion of victims held in custody from the right to attend. In this chart, again, the large number of empty cells indicates the limited detail provided about the victims’ right to attend. Often this legislation indicates rights in general language and makes no effort to provide details.
–Table 7. Participation–Sentencing and Postsentencing Proceedings. Participation means the right to provide victim impact statements, either directly for that proceeding or indirectly, in the sense that a statement made at earlier proceedings must be forwarded to later ones.
A general note: All States have been evaluated for all questions. A blank cell indicates that researchers were unable to identify legislation addressing that issue.
Perry Deess, Ph.D., Principal Investigator, The Vera Institute of Justice
NOTE: The above-mentioned tables in Appendix II “State Statutes on Notification of Victims” are not available in this document. For a copy of these tables, please contact FORECITE and ask for Article Bank # A-76a.
Appendix III Sample DNA Test Brochure
Understanding DNA Evidence: A Guide for Victims and Advocates
Stories about the use of DNA evidence to convict or exonerate defendants in sexual assault or murder cases have appeared in the media with increasing frequency. It has become apparent, to both criminal justice professionals and the public, that DNA evidence is playing a larger role in determining guilt and innocence. While the testing of DNA has become commonplace in many criminal cases, DNA technology is relatively new and is improving rapidly. Evidence that is impossible to test for DNA today may be routinely tested in the future. It is important for victims to understand the potential significance of DNA evidence in their cases.
What is forensic evidence?
DNA is only one type of forensic evidence that may be used in an investigation. Forensic evidence consists of things that can be analyzed to help establish the identity of the assailant by eliminating suspects, to prove the victim or assailant was at a certain place, or to help investigators find out how the crime was committed. In sexual assault cases, the forensic evidence that may be helpful are hair, fibers, fingerprints, saliva, semen, and blood recovered from clothing, a sexual assault kit, or a crime scene.
What is DNA evidence?
DNA is the abbreviation for deoxyribonucleic acid, which stores the genetic code of the human body–our hereditary blueprint passed on to us by our parents. DNA determines our personal characteristics, such as eye and hair color, height, and bone structure. DNA is found in saliva, skin tissue, blood, the root and shaft of hair, bone, and semen. DNA is useful because it is present in all cells, it is the same throughout the body, and it does not change in the course of a person’s life. For each individual (except identical twins) the sequence (the order of the DNA building blocks) is different in particular regions of the cell, making each person’s DNA unique. If properly preserved, DNA from bones or body fluid stains can be tested after many years in older cases in which questions of identity remain unresolved or disputed. In many cases, these substances can be analyzed to reliably link criminals to crimes or clear them as suspects.
How is DNA and other forensic evidence collected?
The way DNA evidence is collected and preserved is critical to the success of its use in criminal cases. DNA evidence is particularly important in sexual assault cases, so it is important for sexual assault victims to notify the police before showering or changing clothing after an assault. Semen may be on the clothing, bedding, or still in the vaginal region. The skin of the assailant may be found under a victim’s fingernails. A broken fingernail left at the scene by the perpetrator may also be analyzed for DNA evidence. Victims should not wash or throw away anything else that the assailant’s semen may have come into contact with–bed sheets or covers, rugs, cushions, wash cloths, tissues, or condoms. If the assault happened in a house or apartment, the police may be able to collect fingerprint and other evidence from the scene.
The police will collect evidence from the scene of the crime, and evidence that is on or in a victim’s body can be collected by a physician or sexual assault nurse examiner during an examination after a sexual assault. A medical examination is conducted to make sure the victim is okay, to treat any injuries, to test for sexually transmitted diseases, and to look for and collect any evidence. The doctor or nurse will use sterile cotton swabs to remove fluids which might contain semen from the victim’s vagina or mouth or other parts of the body touched by the assailant. If the victim scratched the assailant, they will scrape under her fingernails to recover skin cells. They may also collect head and pubic hairs and take a blood sample. In most cases, the victim’s clothing will be collected, so the doctor or nurse should provide something else to wear. In cases of homicide, DNA evidence may be collected from the crime scene and from the body of the victim by the pathologist conducting a forensic autopsy.
What do the police do with the evidence they collect?
Hair and fiber. Often in sexual assault cases, because the victim and assailant have come in close contact, hairs and fibers from clothing, carpet, bedding, or furniture will be transferred. Hairs and fiber are compared with known samples (taken from the victim and the assailant) to determine whether there are any matches. Hair and fiber evidence can be very helpful in proving that there was contact between an assailant and a victim.
Saliva, blood, skin, and semen. Saliva, blood, and semen are generally tested by using DNA analysis. If there is enough high-quality DNA, a comparison can be done that can establish whether the suspect is or is not a likely source of the semen taken from the victim’s body or other evidence. DNA evidence is not available in every case, or the evidence may have been subjected to conditions that contaminated or degraded it, but it is very powerful evidence when it is available. In some cases a blood sample from the victim’s husband, boyfriend, or other sexual partner may be needed in order to account for all of the DNA that is found on the victim or at the scene.
How does DNA testing work?
There are several chemical processes used in the analysis of DNA evidence. While these processes are very reliable, sometimes results cannot be obtained or are inconclusive if there is not enough evidence to analyze or if the evidence has been contaminated or improperly preserved. The types of processes and the technology used in processing DNA evidence are increasing in sophistication and ability to distinguish individuals, so it may be possible to test evidence in the future in ways that are not possible today. DNA testing can take weeks or months to complete and can be expensive for some agencies. During a criminal investigation, the costs are paid by the police department or the prosecutor’s office.
The police will need a sample of the victim’s DNA to compare other DNA evidence against. In sexual assault cases, it usually will be collected at the time a rape kit is completed. A sample of DNA can also be collected from a blood sample or from swabbing the inside of the mouth. DNA samples will be collected from the suspect. Samples may also need to be collected from the victim’s partner, or anyone else with whom she had sexual contact within the several days prior to the assault.
There are two types of DNA tests that may be performed, depending upon the type of evidence available.
–Restriction fragment length polymorphism (RFLP) testing usually requires a sample that has 100,000 or more cells (an example would be a dime-sized bloodstain) and contains DNA that is not degraded (broken into smaller fragments). RFLP has been widely used since the late 1980s and is able to exclude wrongly accused individuals with only one or a few test results.
–Polymerase chain reaction (PCR) testing can be conducted on DNA from different parts of the cell: the nucleus and the mitochondria. PCR testing of DNA from the nucleus of the cell can be done on small samples containing 50 to 100 cells or more (for example, a visible dot of blood or a single hair root). PCR testing on nuclear DNA has been available since the early 1990s. It can be used on DNA that has been degraded (samples that have been improperly stored or aged) and has a high degree of reliability. Testing on DNA from the mitochondria of the cell is generally conducted 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. At present, mitochondrial DNA testing is available only in a limited number of laboratories.
What do DNA testing results mean?
There are different types of results that can occur in DNA testing. Prosecutors and investigators should be able to explain the meanings of these potential results in more detail.
–Inclusion means the test may indicate that DNA found at the scene of the crime is that of the suspect. In some cases the result may be “inclusion” but the results are not helpful in the criminal case. For example, results from samples taken from the victim may be consistent with the DNA of the victim. The results do not mean the suspect was not present and did not commit the crime–only that the substance tested did not come from the suspect.
–Exclusion is when the results obtained from the sample from a suspect or known individual are not present in the results from the unknown crime scene sample. The test results show that the sample found at the scene does not belong to the suspect. In some cases, it may be necessary to do additional testing for that exclusion to be meaningful or to provide evidence for exoneration. An example would be when the suspect is excluded as the source of the DNA in a sexual assault, but no samples have been taken from the victim and/or her consensual partners. In other words, the test may show that the sample was from the victim or a family member or other person with whom he or she had contact around the time of the crime.
–Inconclusive results include situations in which no results were obtained from the sample because there was not enough DNA to test or in which results are obtained from an unknown sample from the crime scene but there are no samples from known individuals or suspects to test for comparison. Also, the results may be inconclusive because the sample is not in suitable shape for testing or contains a mixture of DNA from several individuals (e.g., from a sample taken from the victim of a gang rape).
DNA Evidence: Closed Cases and Unsolved Cases
DNA is a useful and neutral tool in the search for justice. It can cut both ways: DNA evidence can help prove innocence or guilt. News reports about convicted persons being released after old evidence is tested for DNA appear regularly. Many sexual assault and homicide cases occurred before DNA testing was an option or was widely recognized. In some cases, convicted defendants who maintain their innocence have sought to have evidence tested to see if the DNA from that evidence matches their own. More than 50 such convicted persons have had their convictions overturned or have been released because DNA testing showed they could not have committed the crime. Many of these cases involved convictions that were based primarily upon eyewitness identification of the alleged perpetrator. DNA typing is now being used to assist investigators in solving crimes in which a suspect has not readily been identified. DNA has been used to connect a particular perpetrator with other unsolved assaults.
Most States have created, or plan to create, databases that store DNA profiles of convicted perpetrators. The FBI created a system called the Combined DNA Index System (CODIS) which is a collection of DNA databases from forensic laboratories around the United States. The DNA profiles of individuals previously convicted of serious crimes such as rape and homicide will be maintained in computer files and compared to DNA profiles collected from cases with no suspects. It is hoped that local laboratories will tie into State databases that allow comparisons between the local laboratories. The national database, operated by the FBI, will link together the profiles from the databases of each of the participating States. As of April 1998, the CODIS system has successfully made 250 DNA matches within or between States that currently use CODIS. The CODIS system will have an impact on the identification of serial rapists who have committed crimes in more than one jurisdiction. Whether it helps absolve or convict individuals, DNA evidence will play an increasingly important role in solving crimes in the future.
Appendix IV Working Group on Postconviction Issues
Ronald S. Reinstein is the associate presiding judge of the Superior Court of Arizona. He was appointed to the bench in December 1985 and served as presiding criminal judge from 1990 to 1998. Prior to his appointment, he was a deputy Maricopa County attorney from 1974 to 1985, serving as supervisor of the Criminal Trial Unit and as the head of the Sex Crimes Unit. In 1998, Judge Reinstein was named by the State Bar of Arizona as the recipient of the James A. Walsh Award for the outstanding judge in Arizona. In 1999 he was selected as the first recipient of the State Bar Public Lawyer’s Section’s Judicial Award of Excellence. He has also received the Henry Stevens Outstanding Judge Award from the Maricopa County Bar Association, the Arizona Attorney General’s Distinguished Service Award, the Society of Professional Journalists’ Sunshine Award, and the Lecturer of Merit Award from the National College of District Attorneys. Additional awards include Awards of Excellence and Achievement from the Governor’s Children’s Justice Task Force, Maricopa County Victim-Witness Program, and Parents of Murdered Children. Judge Reinstein serves as a member of the National Commission on the Future of DNA Evidence, the National Advisory Board of the Justice Department Center for Sex Offender Management, and the Governor’s Children’s Justice Task Force. He has served on the faculty of the National College of District Attorneys, the National Juvenile and Family Court Judges College, the National Center for the Investigation and Prosecution of Child Abuse, the National Institute for Trial Advocacy, the Arizona Prosecuting Attorneys Advisory Counsel, Arizona Judicial College, the Einstein Institute for Science, Health, and the Courts, the National Center for Effective Public Policy, the American Probation and Parole Association Training Institutes, American Judicature Society Symposiums, and Valley Leadership. Judge Reinstein is a graduate of Indiana University School of Law.
Christopher H. Asplen is an assistant U. S. attorney in the U. S. Attorney’s Office for the District of Columbia. He is currently detailed as the executive director of the National Commission on the Future of DNA Evidence, a commission established at the request of the U. S. Attorney General and administered through the National Institute of Justice. Prior to joining the U. S. Attorney’s Office, Mr. Asplen was the DNA unit director for the American Prosecutors’ Research Institute/National District Attorneys Association. He has educated prosecutors, defense attorneys, and judges across the country on the science and courtroom application of forensic DNA. Prior to moving to Washington, D.C., Mr. Asplen was a senior deputy district attorney in Pennsylvania specializing in the prosecution of child sexual abuse. Mr. Asplen received his undergraduate degree from West Chester University and his J. D. from the Dickinson School of Law.
Dennis D. Bauer, a senior deputy district attorney in the Office of the District Attorney, Orange County, California, has been a deputy district attorney since 1979. In 1987, Mr. Bauer began to specialize in the prosecution of cases involving sexual assault and child abuse. He has been a leading advocate for the use of DNA analysis and has served as special counsel on DNA evidentiary hearings in jurisdictions in California. Mr.Bauer has published numerous articles concerning DNA analysis in the courtroom. As a faculty member of the American Prosecutors Research Institute, he has lectured extensively on the utility, admissibility, and court presentation of DNA evidence. Mr. Bauer also has been a guest lecturer at the FBI Academy and has spoken before groups such as the Alabama District Attorney’s Association and the South Carolina Solicitors. He received his undergraduate degree from Western Washington University and his J. D. from the University of San Diego.
Margaret A. Berger is the Suzanne J. and Norman Miles professor of law at Brooklyn Law School in New York, where she teaches evidence, civil procedure, and courses on the interaction of science and law. She is the coauthor of Weinstein’s Evidence, the author of the “Evidentiary Framework” in the Federal Judicial Center’s Reference Manual on Scientific Evidence (1994), and a coauthor of the Weinstein, Mansfield, Abrams, and Berger Evidence Casebook (revised in 1997). She also has published numerous articles on evidentiary issues. Professor Berger has served as the reporter to the Advisory Committee on the Federal Rules of Evidence, as a consultant to the Carnegie Commission on Science, Technology, and Government, and as a member of the National Research Council’s Committee on DNA Forensic Science and Black and Smokeless Powders. She received an A.B. magna cum laude from Radcliffe College and a J.D. from Columbia University School of Law.
Kevin C. Curran is an assistant federal public defender in the office of the Federal Public Defender for the Eastern District of Missouri, a position he has held since 1996. Previously, he served for 8 years as director of the newly formed Capital Litigation Division of the Missouri State Public Defender System, and for 10 years as an assistant public defender for the Missouri State Public Defender System in the St. Louis office. Mr. Curran is an adjunct professor of law at St. Louis University, where he supervises the Criminal Law Clinic and conducts a seminar in death penalty litigation. He also is on the adjunct faculty at Washington University, where he teaches trial advocacy. Mr. Curran graduated from St. Louis University Law School in 1978.
Lisa Forman is currently the deputy director of the National Commission on the Future of DNA Evidence and a program manager in the Office of Science and Technology at the National Institute of Justice. Prior to joining the National Institute of Justice, Dr. Forman worked for 8 years as an associate director at Cellmark Diagnostics in Germantown, Maryland. Dr. Forman has extensive experience in the application of forensic science and population genetics. She earned her bachelor of science degree from the University of California at Berkeley and her masters of arts and doctor of philosophy in anthropology from New York University.
Geoffrey C. Hazard, Jr., is trustee professor of law at the University of Pennsylvania Law School and sterling professor of law emeritus at Yale University. He is also director emeritus of the American Law Institute (ALI) and a member of the ALI Council. He served as ALI director for 15 years before stepping down and being elected to the ALI Council in 1999. A graduate of Swarthmore College and Columbia University School of Law, Professor Hazard received Columbia’s 1999 Medal for Excellence. He also received the American Judicature Society’s 1999 Justice Award. Professor Hazard began his career in private practice in Oregon, where he was also deputy legislative counsel for the State of Oregon and executive secretary of the Oregon Interim Committee on Judicial Administration. He became a member of the law faculty of the University of California at Berkeley in 1958, moved to the University of Chicago in 1964, and was a member of the Yale faculty from 1971 until his retirement from Yale in 1994, when he became sterling professor of law emeritus. An authority on civil procedure, trial practice, and legal ethics, Professor Hazard also has been a visiting professor at Harvard, Stanford, the University of Michigan, and Universite d’Aix-Marseille. During his tenure at Yale he served as associate, acting, and deputy dean of the Yale School of Organization and Management. He was executive director of the American Bar Foundation from 1964 to 1970. Professor Hazard is the author of numerous published articles and books.
Barbara R. Morgan is the Solicitor of the Second Judicial Circuit. Appointed to the position by the South Carolina governor in 1990, she was elected Solicitor by popular vote in 1992 and re-elected 4 years later. Prior to her appointment, she served as Assistant Solicitor for the Second Judicial Circuit and Deputy Solicitor for the Second Judicial Circuit. Ms. Morgan was the first full-time Assistant Solicitor for Darlington County in the Fourth Judicial Circuit, served as city prosecutor and assistant city attorney for Florence, South Carolina, and in the early 1980s, as law clerk for the Honorable C. Anthony Harris. She was the first prosecutor in South Carolina to present mitochondrial DNA in criminal court. Her honors/awards include Victim Advocate of the Year for Outstanding Service 1989; Aiken Jaycee’s Boss of the Year, 1991; and most Distinguished Alumni Award from USC-Aiken, 1997. Current activities include serving as vice chairman of the Governor’s Youth Council, 1998-Present; and as member of the APRI Board of Directors. She has also served as chairman of Growing Into Life-A Community Collaborative, president of the Solicitor’s Association, and chairperson of the Advisory Committee to Review South Carolina Drug and Common Laws. She received a B.A. from the College of Charleston in 1978 and graduated from the University of South Carolina School of Law in 1981.
Barry C. Scheck currently serves as a professor of law and director of clinical legal education at Cardozo Law School in New York. He has served on the faculty of the National Institute of Trial Advocacy and Defense Council and is coauthor of Raising and Litigating Claims of Small Electronic Surveillance. Professor Scheck is a member of the Committee on the Criminal Courts, Association of the Bar of the City of New York. Through Cardozo’s Criminal Law Clinic, he litigated–in the trial courts and on appeal–a number of well-known cases that set significant precedents, particularly in the areas of DNA fingerprinting and family violence. Professor Scheck also teaches and organizes trial advocacy programs for many public defenders’ offices, bar associations, and law firms across the country. Recently, he has focused his efforts on developing materials for law students and practitioners in the area of legal ethics and professional discipline. After graduating from law school in 1974, Professor Scheck was a staff attorney for 3 years with the Legal Aid Society of New York. Professor Scheck earned his B.S. from Yale University in 1971 and his J.D., M.C.P. from the University of California-Berkeley.
Jane Siegel is an associate in the New York office of Winston & Strawn, a Chicago law firm. She is the former executive director of the Innocence Project, based at the Cardozo School of Law in New York, which uses DNA testing to exonerate inmates who have been wrongfully convicted. Ms. Siegel received a B.A. from the University of Pennsylvania in 1991 and a law degree from the University of Pennsylvania Law School in 1995.
Kathryn M. Turman is the Acting Director of the Office for Victims of Crime (OVC), U.S. Department of Justice, a position she has held since July 1998. Prior to joining OVC, she served as chief of the Victim Witness Assistance Unit in the U.S. Attorney’s Office. From 1993 to 1994, Ms. Turman was a senior associate in the Criminal Justice Services Division of the Public Administration Service in McLean, Virginia, where she directed a national training and technical assistance program to help communities organize multi agency teams to handle child victim cases. Ms. Turman was the Director of the Missing and Exploited Children Program in the U.S. Department of Justice from 1991 to 1993, and served as special administrative assistant to the late Senator John Heinz from 1987 to 1991. She is the author of Child Victims and Witnesses: A Guide for Criminal Justice Professionals, published by the Department of Justice, and Recovery and Reunification of Missing Children, published by the Department of Justice and the National Center for Missing and Exploited Children. She is on the national board of the American Professional Society on the Abuse of Children and on project advisory boards for several projects focusing on child victims. She has served on the Washington, D.C., Child Death Review Team, the Regional Child Fatalities Review Council, the D.C. Children’s Advocacy Center Steering Committee, and the D.C. Superior Court Family Violence Coordinating Council.
Charlotte J. Word is deputy laboratory director for Cellmark Diagnostics in Germantown, Maryland. She is an expert in DNA identification testing, including supervising and analyzing validation studies and other research in DNA identification and testifying in Frye hearings and trials. She holds a B.S. from the College of William and Mary and a Ph.D. in microbiology from the University of Virginia.
About the National Institute of Justice
The National Institute of Justice (NIJ), a component of the Office of Justice Programs, is the research agency of the U.S. Department of Justice. Created by the Omnibus Crime Control and Safe Streets Act of 1968, as amended, NIJ is authorized to support research, evaluation, and demonstration programs, development of technology, and both national and international information dissemination. Specific mandates of the Act direct NIJ to:
–Sponsor special projects, and research and development programs, that will improve and strengthen the criminal justice system and reduce or prevent crime.
–Conduct national demonstration projects that employ innovative or promising approaches for improving criminal justice.
–Develop new technologies to fight crime and improve criminal justice.
–Evaluate the effectiveness of criminal justice programs and identify programs that promise to be successful if continued or repeated.
–Recommend actions that can be taken by Federal, State, and local governments as well as by private organizations to improve criminal justice.
–Carry out research on criminal behavior.
–Develop new methods of crime prevention and reduction of crime and delinquency.
In recent years, NIJ has greatly expanded its initiatives, the result of the Violent Crime Control and Law Enforcement Act of 1994 (the Crime
Act), partnerships with other Federal agencies and private foundations, advances in technology, and a new international focus. Some examples of these new initiatives:
–New research and evaluation are exploring key issues in community policing, violence against women, sentencing reforms, and specialized courts such as drug courts.
–Dual-use technologies are being developed to support national defense and local law enforcement needs.
–The causes, treatment, and prevention of violence against women and violence within the family are being investigated in cooperation with several agencies of the U.S. Department of Health and Human Services.
–NIJ’s links with the international community are being strengthened through membership in the United Nations network of criminological institutes; participation in developing the U.N. Criminal Justice Information Network; initiation of UNOJUST (U.N. Online Justice Clearinghouse), which electronically links the institutes to the U.N. network; and establishment of an NIJ International Center.
–The NIJ-administered criminal justice information clearinghouse, the world’s largest, has improved its online capability.
–The Institute’s Drug Use Forecasting (DUF) program has been expanded and enhanced. Renamed ADAM (Arrestee Drug Abuse Monitoring), the program will increase the number of drug-testing sites, and its role as a “platform” for studying drug-related crime will grow.
–NIJ’s new Crime Mapping Research Center will provide training in computer mapping technology, collect and archive geocoded crime data, and develop analytic software.
–The Institute’s program of intramural research has been expanded and enhanced.
The Institute Director, who is appointed by the President and confirmed by the Senate, establishes the Institute’s objectives, guided by the priorities of the Office of Justice Programs, the Department of Justice, and the needs of the criminal justice field. The Institute actively solicits the views of criminal justice professionals and researchers in the continuing search for answers that inform public policymaking in crime and justice.
As used in this document, “exoneration” may mean either that a person cannot have committed the charged crime or that reason-able doubt exists as to whether the person committed the charged crime. In the latter instance, DNA results may result in a new trial rather than the inmate’s release. See chapter 2.
New York and Illinois statutes specifically authorize postconviction DNA testing. See, N.Y. Crim. Proc. Law § 440.30(1-a) (McKinney Supp. 1999); 725 Ill. Comp. Stat. 5/116-3(a) (West Supp. 1998). These statutes permit an indigent inmate to obtain post-conviction DNA testing at State expense when certain evidentiary thresholds are met. The New York statute requires a showing that if the results of the requested DNA testing had been admitted at trial, there is “a reasonable probability that the verdict would have been more favorable to the defendant.” The Illinois statute provides that testing should be conducted when test results would produce “new, noncumulative evidence materially relevant to the defendant’s assertion of actual innocence.” Neither statute sets a time limit on bringing the motion. The New York statute applies only to convictions occurring before January 1, 1996; it will not therefore apply if DNA testing used in connection with a later trial was inconclusive but retesting might now produce conclusive results due to technological advances.
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. Accordingly, in Maryland, where newly discovered evidence of innocence motions cannot be brought more than 1 year after final judgment, Kirk Bloodsworth was nevertheless released, and his murder conviction vacated, based upon exculpatory DNA testing proffered in a joint motion by the prosecution and defense. Six months later Bloodsworth was pardoned by the Governor of Maryland after serving almost 9 years in prison, 2 on death row. See Connors, et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, NIJ Research Report [hereinafter “NIJ Report”] 35-37 (1996). A similar chain of events led to the release of Dwayne Scruggs when a judge in Indiana granted a joint newly discovered DNA evidence motion that was filed long after Indiana’s 30-day statute of limitations had passed. Id. at 68-70.
The punishment in Herrera was death, but the same constitutional arguments would apply to lesser punishments.
Petitioner claimed 10 years after his conviction that his brother, who had died 6 years previously, was the actual killer. To prove this claim petitioner proffered a number of inconsistent affidavits. Proof of guilt at trial had been extensive, including a signed letter by petitioner found in his possession at the time of his arrest in which he admitted his guilt. 506 U.S. at 421-424 (O’Connor, J.concurring).
See Susan Bandes, Simple Murder: A Comment on the Legality of Executing the Innocent, 44 Buff. L. Rev. 501, 516-518 (1996).
See, e.g., Sudwishcher v. Estate of Hoffpauir, 589 So. 2d 474 (La. 1991); Lach v. Welch, 1997 WL 536330 (Conn. Super. Ct. Aug. 15, 1997), 1994 WL 271518 (Conn. Super. Ct. June 13, 1994); In re Estate of Rogers, 583 A.2d 782 (N.J. Super. Ct. App. Div.1990). See also Charles Nelson Le Ray, Implications of DNA Technology on Posthumous Paternity Determination: Deciding the Facts When Daddy Can’t Give His Opinion, 35 B.C.L. Rev. 747 (1994) (discussing generally DNA testing on nonparty relatives).
It is well established that the compelled taking of blood from a person for testing in the course of a criminal investigation is not a violation of the party’s Fifth Amendment right against self-incrimination. See Schmerber v. California, 384 U.S. 757, 761-65 (1966). Moreover, on the basis of this distinction, one may be constitutionally compelled to provide handwriting exemplars, see United States v. Mara, 410 U.S. 19, 21-22 (1973) and Gilbert v. California, 388 U.S. 263, 266-67 (1966); to provide voice exemplars, see Dionisio, 410 U.S. at 5-7; to stand in a lineup, see United States v. Wade, 388 U.S. 218, 221-23 (1967); to don incriminating clothing, see Holt v. United States, 218 U.S. 245, 252-53 (1910); to submit to fingerprinting, see United States v. Peters, 687 F.2d 1295, 1297 (10th Cir. 1982); and to submit to photographing and to provide hair samples, see In re Rosahn, 671 F.2d 690, 694 (2d Cir. 1982).
See Wilkes § 1-13, at 30 and app. A (survey of State postconviction remedies). See also Herrera, 506 U.S. at 410-11 nn. 8-11 (survey of applicable statutes).
See, NIJ Report, supra note 3 at 34-35 (discusses cases in which Texas prisoners had their convictions vacated as a result of untimely newly discovered evidence motions).
See discussion at note 3, supra.
See discussion at note 2, supra.
Jeffreys, A.J., V. Wilson, and S.L. Thein, “Individual-specific ‘fingerprints’ of human DNA,” Nature, 316 (1985):76-79.
See NIJ Report, note 3.
National Research Council, DNA Technology in Forensic Science, National Research Council, 1992.
Blake, E., J. Milhalovich, J. Higuchi, P.S. Walsh, and H. Ehrlich, “Polymerase chain reaction (PCR) amplification and human leukocyte antigen (HLA)-DQ oligonucleotide typing on biological evidence samples: Casework experience,” J. For. Sci., 37 (1992):700-726.
See NIJ Report, note 3.
Menotti-Raymond, M., V.A. David, J.C. Stephens, L.A. Lyons, and S.J. O’Brien, “Genetic Individualization of Domestic Cats Using Feline STR Loci for Forensic Applications,” Journal of Forensic Sciences, 42 (1997): 1039-51.
The Innocence Project takes the position that there is a constitutional right, notwithstanding State time bars, to obtain and test DNA evidence where the results could provide “truly persuasive evidence” of innocence pursuant to the Fifth and Eighth Amendments. See Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).
The Commission takes no position on whether Federal courts should or should not grant Federal habeas claims where DNA testing has produced “truly persuasive” evidence of innocence; rather, it is simply suggested here that defense counsel should strongly consider litigating this undecided issue in appropriate cases.
See NIJ Report, note 3.
U.S. Department of Justice
Office of Justice Programs
810 Seventh Street N.W.
Raymond C. Fisher
Associate Attorney General
Assistant Attorney General
Deputy Assistant Attorney General
Director, National Institute of Justice
Office of Justice Programs
World Wide Web Site
National Institute of Justice
World Wide Web Site
Postconviction DNA Testing: Recommendations for Handling Requests
Director, National Institute of Justice
National Commission on the Future of DNA Evidence
Opinions or points of view expressed are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice.
The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, Bureau of Justice Statistics, Office of Juvenile Justice and Delinquency Prevention, and Office for Victims of Crime.