NOTE: This material was compiled in 1999.

The Impact of DNA Testing

The advent of DNA testing raises the question of whether a different balance ought to be struck regarding the right to postconviction relief. The results of DNA testing do not become weaker over time in the manner of testimonial proof. To the contrary, the probative value of DNA testing has been steadily increasing as technological advances and growing databases amplify the ability to identify perpetrators and eliminate suspects. (See chapter 3.) We already have seen cases in which an exclusionary DNA test can prove actual innocence. (See example 1 in chapter 1.) In other cases, DNA results may raise a reasonable doubt about guilt. The strong presumption that verdicts are correct, one of the underpinnings of restrictions on postconviction relief, has been weakened by the growing number of convictions that have been vacated because of exclusionary DNA results. On the other hand, the need for finality and the conservation of judicial resources remain important concerns, and there are numerous types of cases in which the results of DNA testing would be debatable or inconclusive. (See A Framework for Analysis in chapter 1.) To date, however, only in New York and Illinois have State legislatures restructured the right to postconviction relief now that the possibility exists in some cases that more accurate and definitive adjudications can be achieved than at the original trial.[1]

In addition to challenging the assumptions that support the structure of postconviction relief, DNA evidence also has given rise to thorny legal issues because postconviction requests for testing do not fit well into existing procedural schemes or established constitutional doctrine. As an initial matter, postconviction procedures in both State and Federal court assume petitioners already have, in hand, new evidence that they claim proves innocence; postconviction DNA cases, however, invariably begin with applications to find and test evidence that is, and has been, in the control of the prosecution since the time of the original trial. The typical inmate making a postconviction DNA request wants: 1) discovery of the evidence so that it can be tested, 2) the right to present favorable test results in a judicial proceeding or in an executive proceeding for clemency, and 3) the State to pay for the testing. At this point in time, the law in many jurisdictions is not clear as to the legal theory that entitles the petitioner to have any of these requests granted, or what the appropriate procedural mechanisms are for making these demands. Frequently, these issues are intertwined, and petitioners make omnibus motions in which they raise all potentially relevant grounds for relief together.

Because of this present state of legal uncertainty, litigating postconviction DNA applications often will be unnecessarily complex, expensive, and time consuming, unless prosecutors, defense counsel, and trial courts work cooperatively to assess cases, find the evidence, arrange for DNA testing, and make joint requests for judicial or executive relief when the facts so warrant after a result favorable to the petitioner. That is why the recommendations in this report are designed to suggest how postconviction DNA applications can be handled expeditiously, ethically, flexibly, and lawfully by all parties, in any jurisdiction, with little or no need for judicial intervention.[2]

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[1] New York and Illinois statutes specifically authorize postconviction DNA testing. See, N.Y. Crim. Proc. Law § 440.30(1-a) (McKinney Supp. 1999); 725 Ill. Comp. Stat. 5/116-3(a) (West Supp. 1998). These statutes permit an indigent inmate to obtain postconviction DNA testing at State expense when certain evidentiary thresholds are met. The New York statute requires a showing that if the results of the requested DNA testing had been admitted at trial, there is “a reasonable probability that the verdict would have been more favorable to the defendant.” The Illinois statute provides that testing should be conducted when test results would produce “new, noncumulative evidence materially relevant to the defendant’s assertion of actual innocence.” Neither statute sets a time limit on bringing the motion. The New York statute applies only to convictions occurring before January 1, 1996; it will not therefore apply if DNA testing used in connection with a later trial was inconclusive but retesting might now produce conclusive results due to technological advances.

[2]Courts have, in the interests of justice, vacated convictions and released inmates when newly discovered DNA evidence demonstrates innocence and the prosecution joins in the motion. Accordingly, in Maryland, where newly discovered evidence of innocence motions cannot be brought more than 1 year after final judgment, Kirk Bloodsworth was nevertheless released, and his murder conviction vacated, based upon exculpatory DNA testing proffered in a joint motion by the prosecution and defense. Six months later Bloodsworth was pardoned by the Governor of Maryland after serving almost 9 years in prison, 2 on death row. See Connors, et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, NIJ Research Report [hereinafter “NIJ Report”] 35–37 (1996). A similar chain of events led to the release of Dwayne Scruggs when a judge in Indiana granted a joint newly discovered DNA evidence motion that was filed long after Indiana’s 30-day statute of limitations had passed. Id. at 68–70.

Go to the Next Section: Can a Right to Discovery Be Inferred From Statutes Providing for Postconviction Relief?

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