What Kind of a Showing Must the Petitioner Make to be Afforded Access to Testing?

A petitioner who is proceeding pursuant to a newly discovered evidence motion must meet the standard set forth in the governing statute. The precise formulation differs from jurisdiction to jurisdiction. In New York, the newly discovered evidence must be "of such a character as to create a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant[.]" NY Crim. Pro. section 440.10 (1)(g) (McKinney 1994). Other States say the newly discovered evidence should provide "conclusive proof" that there would have been a different verdict. See Wilkes, State Postconviction Remedies and Relief, section 1-13, at 31-32 (1996 ed.), section 1-13, at 30-32. Some States use, either as the exclusive ground for relief or as an additional, "catch-all" provision, a general "interests of justice" standard as suggested by section (1)(a)(5) of the 1980 Uniform Post-Conviction Procedure Act, "evidence, not previously presented or heard, exists requiring vacation of the conviction or sentence in the interest of justice." See Wilkes, supra, app. B, at 905.

Courts that afford access to testing via Brady motions, (see discussion supra), also require some showing by the petitioner that in light of the evidence introduced at trial DNA testing could somehow have affected the outcome. The reported cases report a variety of tests and conditions.

Clearly the courts perform the kind of analysis suggested in A Framework for Analysis in determining whether access to testing is warranted. See, e.g., People v. Gholston, 697 N.E.2d 375, 379, (Ill. App. Ct. 1998) (refusing testing where multiple defendants participated in the sexual assault, one or more of whom may have ejaculated, and there was no evidence that defendant ejaculated; defendant had confessed to being at the scene); Mebane, 902 P.2d at 497 (will only allow testing if case involved a single perpetrator and trial evidence was weak); Thomas, 586 A.2d at 254 ("when the State's proofs are weak, when the record supports at least a reasonable doubt of guilt, and when there exists a way to establish guilt once and for all . . .").

The concurring and dissenting opinions in Herrera discuss various standards that might be required for showing "actual innocence." (See discussion supra.)

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