Legal Avenues

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.[1]

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.

Go to the Next Section: Pretesting Considerations

Download the complete document: Postconviction DNA Testing: Recommendations for Handling Requests (Adobe PDF)

[1] 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).