Screening Steps

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:

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.

Send 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.  

Go to the Next Section: Information Gathering

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