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«Postconviction DNA Testing: Recommendations for Handling Requests A REPORT FROM U.S. Department of Justice Office of Justice Programs 810 Seventh ...»

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U.S. Department of Justice

Office of Justice Programs

National Institute of Justice


DNA Testing:


for Handling



U.S. Department of Justice

Office of Justice Programs

810 Seventh Street N.W.

Washington, DC 20531

Janet Reno

Attorney General

Raymond C. Fisher

Associate Attorney General

Laurie Robinson

Assistant Attorney General

Noël Brennan

Deputy Assistant Attorney General Jeremy Travis Director, National Institute of Justice Office of Justice Programs National Institute of Justice World Wide Web Site World Wide Web Site http://www.ojp.usdoj.gov http://www.ojp.usdoj.gov/nij Cover image courtesy of Molsoft SM, LLC/Produced by ICM® Software; ©ICM 1999

Postconviction DNA Testing:

Recommendations for Handling Requests September 1999 NCJ 177626 Jeremy Travis Director, National Institute of Justice Christopher Asplen Executive Director 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.

Postconviction DNA Testing: Recommendations for Handling Requests Message From the Attorney General The vigilant search for truth is the hallmark of our criminal justice system. Our methods of investigation, rules of criminal procedure, and appellate process are designed to ensure that the guilty are apprehended and convicted while the innocent are protected. But while ours is a sys- tem to be cherished, it is not a perfect system, and those of us charged with the administration of justice have a responsibility to seek its continued improvement. These recommendations acknowledge and accept that responsibility. They were created because forensic DNA technolo- gy can strengthen our confidence in the judicial process.

In 1996 the National Institute of Justice (NIJ) issued the research report, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. It told the stories of 28 menwhose innocence was proven by applying DNA technology to evidence after they were convicted and sent to prison. They had, however, served an average of 7 years in prison. Since the publication of that report, more than 40 other similar cases have been identified.

In response to NIJ’s report, I requested that the Institute establish a National Commission on the Future of DNA Evidence to identify ways to maximize the value of DNA in our criminal justice system. I commend the Commission’s recognition of the need to address the postconviction issue immediately and I applaud the vision of a better system that these recommendations provide.

The analysis offered by these recommendations applies DNA technology to the appeals process while recognizing the value of finality in the criminal justice system. Where DNA can establish actual innocence, the recommendations encourage the pursuit of truth over the invocation of appellate time bars. In those cases in which DNA testing may be determinative of innocence, the recommendations encourage cooperation between prosecutors, defense attorneys, laboratories, and the judiciary. Likewise, in those cases in which a DNA exclusion would be of no value in the determination of actual innocence, the recommendations discourage the filing of a DNAbased appeal simply because the attorney’s client requests it.

I encourage prosecutors, defense attorneys, the judiciary, victim advocates, and laboratory personnel to apply these recommendations to their individual cases. Using DNA technology fairly and judiciously in postconviction proceedings will help those of us responsible for the administration of justice do all we can to ensure a fair process and a just result.

Janet Reno Attorney General

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National Commission on the Future of DNA Evidence The National Commission on the Future of DNA Evidence was created in 1998 at the request of Attorney General Janet Reno. When she read about the use of DNA to exonerate someone wrongfully convicted of rape and homicide, she became concerned that others might also have been wrongly convicted. The Attorney General then directed the National Institute of Justice (NIJ) to identify how often DNA had exonerated wrongfully convicted defendants. After extensive study, NIJ published the report Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, which presents case studies of 28 inmates for whom DNA analysis was exculpatory.

On learning of the breadth and scope of the issues related to forensic DNA, the Attorney General asked NIJ to establish the Commission as a means to examine the future of DNA evidence and how the Justice Department could encourage its most effective use. The Commission was appointed by the Director of the National Institute of Justice, Jeremy Travis, and represents the broad spectrum of the criminal justice system. Chaired by the Honorable Shirley S. Abrahamson, Chief Justice of the Wisconsin State Supreme Court, the Commission consists of representatives from the prosecution, the defense bar, law enforcement, the scientific community, the medical examiner community, academia, and victims’ rights organizations.

The Commission’s charge is to submit recommendations to the Attorney General that will help ensure more effective use of DNA as a crimefighting tool and foster its use throughout the entire criminal justice system. Other focal areas for the Commission’s consideration include crime scene investigation and evidence collection, laboratory funding, legal issues, and research and development. The Commission’s working groups, consisting of Commissioners and other nonCommission experts, research and examine various topics and report back to the Commission.

The working group reports are submitted to the full Commission for approval, amendment, or further discussion and provide the Commission background for its recommendations to the Attorney General.

By nature of its representative composition and its use of numerous working groups, the Commission receives valuable input from all areas of the criminal justice system. The broad scope of that input enables the Commission to develop recommendations that both maximize the investigative value of the technology and address the issues raised by the application of a powerful technology.

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Postconviction Issues Working Group A convicted individual’s continued assertion of innocence is not new to the criminal justice system and in fact is familiar to appeals courts. The use of DNA technology may bring to courtroom proceedings a degree of certitude to which neither the defense nor the prosecution is accustomed. Typically in an appeal, the possibility that the original verdict will be overturned is merely suggested.

By contrast, the introduction of DNA evidence after conviction may definitively prove innocence. Because of the high level of certainty made possible by DNA technology, the decision to oppose or not oppose a motion requesting postconviction relief may now be based on a different foundation of knowledge.

The implications of DNA technology for criminal justice are most evident in postconviction appeals, both in the use of DNA evidence in specific cases and in its broader impact on the criminal justice system. The Commission has examined the use of DNA evidence in previously adjudicated cases in order to develop recommendations about the postconviction process and is exploring the effect that DNA technology may have on the statutes of limitation for filing

–  –  –

appeals and charges. The latter issue arises because DNA samples last indefinitely, beyond the periods of time permitted for such filings.

Postconviction DNA Testing: Recommendations for Handling Requests will serve criminal justice system practitioners as guidelines for analyzing cases in which DNA evidence is presented.

These recommendations have been unanimously approved by the Commission. The guidelines constitute the scientific ground on which to make fully informed decisions and on which to develop the legal approaches needed when DNA may determine the outcome of an appeal. Separate chapters of the guidelines are tailored to the needs of prosecutors, defense attorneys, the judiciary, forensics laboratories, and victim advocates.

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Executive Summary In recent years, technological progress in DNA (deoxyribonucleic acid) testing has made DNA evidence a predominant forensic technique for identifying criminals when biological tissues are left at a crime scene. DNA testing on samples such as saliva, skin, blood, hair, or semen not only helps to convict, but also serves to exonerate.

The sophisticated technology makes it possible to obtain conclusive results in cases in which previous testing had been inconclusive. Postconviction testing will be requested not only in cases in which DNA testing was never done, but also in cases in which the more refined technology may result in an indisputable answer.

It is hoped this report, Postconviction DNA Testing: Recommendations for Handling Requests, will help participants through the postconviction process. The report is the work of the Working Group on Postconviction Issues, one of five working groups that report to the National Commission on the Future of DNA Evidence. The suggestions are based on the group’s consensus on how defense counsel, prosecutors, judicial officers, victims’ advocates, and DNA laboratories can respond effectively at the various stages of a postconviction request for DNA testing. Cooperation on the part of law enforcement officials may be crucial; materials needed for testing or retesting may be in their possession.

To properly implement the recommendations contained in this report, participants in postconviction DNA proceedings need to consider the category of the case in which the DNA testing is sought and whether participants need to adjust the roles they customarily play in adversarial proceedings.

Case Categories As information is gathered about a case, it may be helpful to evaluate it in terms of five broad

categories, as follows:

Category 1. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner. In these cases, prosecutors and defense counsel should concur on the need for DNA testing.

Category 2. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results would support the petitioner’s claim of innocence, but reasonable persons might disagree as to whether the results are exonerative. The prosecutor and defense counsel may not agree on whether an exclusion would amount to an exoneration or would merely constitute helpful evidence.

Category 3. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results will be inconclusive. Future developments may cause such a case to be reassigned to a different category.

–  –  –

Category 4. These are cases in which biological evidence was never collected, or cannot be found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested. In such a case, postconviction relief on the basis of DNA testing is not possible.

Category 5. These are cases in which a request for DNA testing is frivolous. In these cases, prosecutors and defense counsel should generally agree that no testing is warranted.

When a request for postconviction DNA testing is made, prosecutors should consider whether expeditious discussions with defense counsel might resolve the matter promptly. Defense counsel may not be aware of prior DNA testing that confirmed guilt. In addition, when an inmate is truly innocent, interests converge, so that prosecutors and defense counsel may have to modify their usual adversarial postures.

The chapters in this report deal with applicable law, provide an overview of the applicable science,

and contain suggestions on how the various players can best proceed during the stages of a postconviction proceeding. Highlights include:

Legal Issues This document discusses the kinds of legal issues that have already arisen, and others that will probably develop, as applications for postconviction DNA testing continue to be made and the technology to conduct those tests advances.

The advent of DNA testing raises the question of whether a different balance should be struck regarding the right to postconviction relief. The probative value of DNA testing has been steadily increasing as technological advances and growing databases expand the ability to identify perpetrators and eliminate suspects. The strong presumption that verdicts are correct, one of the underpinnings of restrictions on postconviction relief, has been weakened by the growing number of convictions that have been vacated because of exclusionary DNA results.

DNA evidence also has given rise to thorny legal issues, because postconviction requests for testing do not fit well into existing procedural schemes or established constitutional doctrine.

The typical inmate making a postconviction DNA request wants the following: discovery of evidence so that it can be tested, the right to present favorable test results in a judicial proceeding or in an executive proceeding for clemency, and the State to pay for the testing. Currently, the law in many jurisdictions is not clear as to the legal theory that entitles the petitioner to have any of these requests granted, or what the appropriate procedural mechanisms are for making these demands.

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