Post-Conviction DNA Testing Statutes in the United States:

1
Post-Conviction DNA Testing Statutes in the
United States A National Perspective Presented
By Gabriel S. Oberfield, J.D., M.S.J. Policy
Reform Analyst / Policy Department The National
Institute of Justices Post-Conviction DNA Case
Management Symposium The Innisbrook ? Palm
Harbor, Florida January 22, 2009
2
WHAT IS THE INNOCENCE PROJECT?
3
A national, non-profit litigation and public
policy organization, dedicated to
4

• A national, non-profit litigation and public
  policy organization,
• dedicated to
• Exonerating wrongfully convicted people through
  DNA testing

5
A national, non-profit litigation and public
policy organization, dedicated to 2)
Applying the lessons learned from the 227 DNA
exonerations, among them
6
A national, non-profit litigation and public
policy organization, dedicated to
recognizing the importance of statutory
access to post-conviction DNA testing.
7
Why Is Statutory Access to Post-Conviction DNA
Testing So Important?
8

• Why Is Statutory Access to Post-Conviction DNA
  Testing So Important?
• DNA evidence has enduring probative value

9

• Why Is Statutory Access to Post-Conviction DNA
  Testing So Important?
• DNA evidence has enduring probative value
• B. Emerging technologies can enhance the quality
  of justice

10

• Why Is Statutory Access to Post-Conviction DNA
  Testing So Important?
• DNA evidence has enduring probative value
• B. Emerging technologies can enhance the quality
  of justice
• C. The scientifically reliable results of DNA
  testing provide the certainty and finality that
  bolster the publics trust in the criminal
  justice system

11

• Why Is Statutory Access to Post-Conviction DNA
  Testing So Important?
• DNA evidence has enduring probative value
• B. Emerging technologies can enhance the quality
  of justice
• C. The scientifically reliable results of DNA
  testing provide the certainty and finality that
  bolster the publics trust in the criminal
  justice system
• D. Crime victims, law enforcement, prosecutors,
  courts, the public, the wrongfully convicted, and
  their families ALL ARE HARMED whenever
  individuals guilty of crimes elude justice while
  innocent individuals are convicted of crimes they
  did not commit

12

• Why Is Statutory Access to Post-Conviction DNA
  Testing So Important?
• DNA evidence has enduring probative value
• B. Emerging technologies can enhance the quality
  of justice
• C. The scientifically reliable results of DNA
  testing provide the certainty and finality that
  bolster the publics trust in the criminal
  justice system
• D. Crime victims, law enforcement, prosecutors,
  courts, the public, the wrongfully convicted, and
  their families ALL ARE HARMED whenever
  individuals guilty of crimes elude justice while
  innocent individuals are convicted of crimes they
  did not commit
• E. Statutory access has NOT overwhelmed the
  criminal justice systems in states with such
  statutes and

13

• Why Is Statutory Access to Post-Conviction DNA
  Testing So Important?
• DNA evidence has enduring probative value
• B. Emerging technologies can enhance the quality
  of justice
• C. The scientifically reliable results of DNA
  testing provide the certainty and finality that
  bolster the publics trust in the criminal
  justice system
• D. Crime victims, law enforcement, prosecutors,
  courts, the public, the wrongfully convicted, and
  their families ALL ARE HARMED whenever
  individuals guilty of crimes elude justice while
  innocent individuals are convicted of crimes they
  did not commit
• E. Statutory access has NOT overwhelmed the
  criminal justice systems in states with such
  statutes and
• F. Statutes provide a reliable mechanism to
  permit post-conviction DNA testing so that
  credible claims of innocence based on newly
  discovered biological evidence can be properly
  evaluated.

14

• Why Is Statutory Access to Post-Conviction DNA
  Testing So Important?
• New York passed the nations first
  post-conviction DNA testing statute in 1994.
• Illinois followed in 1998.
• Many more came afterward including newest
  editions Wyoming and South Carolina.
• 44 of 50 states now have statutory mechanisms in
  place.

15
What Are Some of the Important Provisions in
Post-Conviction DNA Testing Statutes?
16
Categories of Petitioners
17

• Laws should not limit access to those currently
  incarcerated
• Testing access should be provided to
• Persons civilly committed on parole or
  probation or subject to sex offender
  registration as well as
• Persons who have finished serving their sentences.

18
Laws should not limit access to those currently
incarcerated Many petitioners who are not
incarcerated still suffer COLLATERAL CONSEQUENCES
of their wrongful convictions,
19

• Laws should not limit access to those currently
  incarcerated
• Petitioners who are not incarcerated still suffer
  COLLATERAL CONSEQUENCES of their wrongful
  convictions,
• Such as sex offender registries and other
  tremendous impediments to their lives and
  livelihood

20
Confessions, Admissions and Guilty Pleas
21
Confessions, Admissions and Guilty Pleas Access
to testing should be afforded to 1) Persons
convicted on a plea of not guilty, guilty or nolo
contendere and 2) Persons deemed to have
provided a confession or admission related to the
crime, either before or after conviction
22
Confessions, Admissions and Guilty
Pleas Although counterintuitive, for a variety
of reasons, innocent people plead guilty, confess
or make admissions Of the 227 DNA exonerations
nationally, about 20 percent involved such
circumstances.
23
Time Limitations and Sunset Provisions
24
Petitions should be freely filed at any time
after conviction Some statutes place a clock on
the filing of a petition This is a problem
for example, it can be hard for petitioners
particularly those filing pro se to prepare
petitions promptly.
25
Similarly, PC DNA testing laws should not have
sunset provisions Statutes should not have
expiration dates And very few still do. DNAs
power to reveal truth never expires.
26
Preservation of Evidence
27
Preservation of Evidence In a number of state
codes, post-conviction DNA testing statutes are
the only place in those codes where mandates
to preserve biological evidence are articulated.
28
Preservation of Evidence But many of these PC
DNA statutes leave an unintended window for
possible evidence destruction between a
petitioners conviction and the petitioners
filing because evidence preservation is only
required after the filing of a petition.
29
Preservation of Evidence Of course, if evidence
is lost or destroyed petitions under these
statutes cannot proceed.
30
Evidence Inventory
31
Evidence Inventory Often evidence is scattered
across the criminal justice system proving
difficult for petitioners to locate BUT without
evidence, a DNA petition is stopped in its tracks.
32
Evidence Inventory If a judge can call for a
thorough search for, and inventory of evidence,
that can solve the problem A number of states
allow for this.
33
Victim Notification
34
Victim Notification The filing of
post-conviction testing petitions can raise
painful issues for the victims of crime
35
Victim Notification Testing statutes should
include mechanisms for victim notification and
the reactivation of victim services, should a
crime victim so choose.
36
Victim Notification The national Innocence
Network is nearing completion of a final
statement on its regard for victim concerns
that will encompass this issue.
37
Testing Crime Scene Evidence Against Existing
Databases
38
Testing Crime Scene Evidence Against Existing
Databases If a DNA profile can be developed from
biological evidence (whether tied to a petition
or otherwise) Provisions should allow for
comparison of that profile to those in NDIS.
39

• Testing Crime Scene Evidence Against Existing
  Databases
• If a DNA profile can be developed from biological
  evidence (whether tied to a petition or
  otherwise)
• Databases can demonstrate links of the DNA
  profile in the case to
• those from other crimes or
• other offenders.

40
Expungement of DNA Profiles and Destruction of
DNA Samples
41
Expungement of DNA Profiles and Destruction of
DNA Samples If a petitioner is exonerated, DNA
profiles and DNA samples taken from the
petitioner should be destroyed. The state does
not have the right to retain them.
42
Appointment of Counsel
43
Appointment of Counsel A number of states
expressly permit appointment of counsel for
indigent petitioners in the context of PC DNA
petitions Petitions can be quite complicated yet
deal with fundamental questions of life and
liberty.
44
Appointment of Counsel A number of states
expressly permit the appointment of counsel for
indigent petitioners in the context of PC DNA
petitions Important caveat from our model
appointment can be conditioned The court, in
its discretion, may refer pro se requests for DNA
testing to qualified parties for further review,
without appointing the parties as counsel at that
time. Such qualified parties may include, but
shall not be limited to, indigent defense
organizations or clinical legal education
programs.
45
Delineation of Response Times
46

• Delineation of Response Times
• The Innocence Project recommends that statutes
  mandate specific response times for
• Prosecutorial responses to petitions, and
• for judges responses to filings.
• Delays can undermine justice.

47

• Delineation of Response Times
• The Innocence Project recommends that statutes
  mandate specific response times for
• Prosecutorial responses to petitions, and
• for judges responses to filings.
• Delays can undermine justice.

48
Standard of Proof
49

• Standard of Proof
• For
• Permitting a Testing Request to Go Forward and
• Assessing the Meaning of a Testing Result

50

• Standard of Proof
• According to the Innocence Projects Model
• A reasonable probability that the petitioner
• would not have been convicted or
• 2) would have received a lesser sentence if
  favorable results had been obtained through DNA
  testing at the time of the original prosecution

51
Standard of Proof It should not be the job of
the petitioner to solve the crime for which he
was wrongfully convicted. The question is
whether the original trial verdict would stand,
in light of the new evidence.
52
QUESTIONS? Please see our Web Site www.innocenc
eproject.org OR,
53
QUESTIONS? Contact Gabriel S. Oberfield of the
Innocence Projects Policy Department GABRIEL
S. OBERFIELD Policy Reform Analyst / Policy
Department The Innocence Project 100 Fifth Ave.
3rd Floor New York, NY 10011 (212)
364-5347 goberfield_at_innocenceproject.org