Postconviction Category 2 Example Cases

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 rule out the possibility of guilt or raise a reasonable doubt about guilt. This category also includes cases in which, for policy and/or economic reasons, there may be disagreement as to whether DNA testing should be permitted at all or, for indigent inmates, at State expense. As the recommendations below indicate, the decision on whether this is a case for testing may have to be made by a judicial officer, who may also wish to ensure that defense counsel is available. These cases may raise difficult policy issues about how far postconviction relief should reach. Bearing on the decision to test will be factors such as:

• The other evidence in the case.
• Whether conviction was based on a guilty plea, a no contest plea, or a trial.
• The availability of DNA testing at the time of trial.
• The type of DNA technology available at the time of trial.
• The petitioner's current status.

Example 5: Petitioner was convicted of a homicide. The prosecution argued in closing that blood on a shirt found at petitioner's home came from the victim. Standard blood typing had shown a match between the sample and the victim's blood. DNA testing that excludes the victim as a source of the bloodstains might be helpful to petitioner's claims but does not prove that he was not guilty. How a case such as this should be treated will depend on the role the bloody shirt played at petitioner's trial and the strength of the other evidence against him. The prosecutor and defense counsel may not concur in their evaluations.

Example 6: Petitioner is presently incarcerated for a crime for which biological evidence is irrelevant. Petitioner had, however, been convicted of a prior crime in which biological evidence was collected and is still available. Evidence of petitioner's conviction of that prior crime had been utilized in connection with the crime for which he is incarcerated. The conviction may have been used to enhance sentencing; as one of the strikes in a "three strikes and you're out" jurisdiction; in connection with impeachment or the threat of impeachment; or as substantive proof, either as prior crimes evidence, or as evidence that satisfies a rule such as Rule 413 or 414 of the Federal Rules of Evidence, which make admissible in sexual assault cases evidence that defendant previously committed a sexual assault. If DNA testing were to exonerate him in connection with the prior crime, it might be helpful to petitioner.

Example 7: Petitioner has been released from prison after serving time for a crime in which biological evidence was collected. Petitioner claims that he cannot get a job because of his criminal record. DNA evidence that would lead to the expungement of the prior conviction might be helpful to the petitioner even though he is no longer incarcerated.

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