Collaterally-Attacked Closed Cases
Collaterally-attacked closed cases are cases in which the defendant has been convicted of an offense and seeks to collaterally attack his conviction. Prosecutorial policies that address post-conviction relief enhance public trust in the integrity of the legal system. A proactive search for potentially problematic cases, testing or retesting in cases when the results would be consequential, and publication of the results, are all essential to reinforcing public confidence.Generally, both the trial prosecutor and the elected or appointed prosecutor should be involved in deciding whether to set aside a conviction based upon exclusionary DNA results. Jurisdictions vary in who they select to review closed cases: law enforcement officers, law students, or senior prosecutors. Some jurisdictions have included defense lawyers in limited roles. Others have defined a limited role for advocates who meet with the victims throughout the process.
A few jurisdictions have established precedent conditions for cases to be included in a review: (1) the conviction occurred before a certain date, and (2) the defendant must have maintained his assertion of mistaken or wrongful identification.20 The Ramsey County (MN) Attorney’s Office initiated a review of past crimes against persons that were prosecuted in 1994 or earlier.They further defined the scope of the review by requiring that (1) biological evidence must still be available, (2) the defendant had consistently maintained his innocence based upon mistaken or wrongful identification, and (3) current DNA technology could provide exonerating evidence. (Appendix C is the protocol for post-conviction DNA testing developed by the Ramsey County Attorney’s Office.) In the event that retesting results exclude the defendant, jurisdictions have stipulated in review policies that (1) the exclusion demonstrates “actual innocence,” (2) the exclusion provides a reasonable probability of a favorable verdict or outcome, or (3) the DNA exclusion evidence is materially relevant to the defense raised in the case.
An important consideration is the role the convicted offenders should play. After all, they are the best situated to know of actual misidentification. In Oregon, letters were written inviting eligible defendants to apply for post-conviction testing, explaining strict deadlines and the rules to the testing process.The defendants’ responses, or lack thereof, were integral to the decision-making process.
Responsibilities to consider when formulating policies for post-conviction case review are listed below:
Prosecution responsibilities:
- Establishing the appropriate review standard to be used in case selection and in identifying cases to be tested or retested.
- Establishing appropriate deadlines for review completion.
- Assigning responsibility for the evaluation and interpretation of exclusionary test results, and determining the appropriate official response.
Law enforcement responsibilities:
- Identifying which cases were closed before DNA evidence was available to the jurisdiction.
- Identifying which cases
- Still have biological evidence remaining, and
- Resulted in a conviction of a person still alive.
Laboratory responsibilities:
- Identifying which cases still have biological evidence amenable to testing.
Policies should also address which agency will be responsible for notifying the victim or next-of-kin and the appropriate timing of the notification.Policies should also address which agency will be responsible for notifying the victim or next-of-kin and the appropriate timing of the notification.
Further Discussion of Postconviction Issues
Further Discussion of Postconviction Issues
Content on this page has been excerpted from DNA Evidence Policy Considerations for the Prosecutor, published by the American Prosecutors Research Institute—the nonprofit research, training and technical assistance affiliate of the National District Attorneys' Association. This information is offered for educational purposes only and is not legal advice. This project was supported by Award No. 2002-DD-BX-0005, from the Bureau of Justice Assistance, U.S. Department of Justice.
