Possible Responses to an Application for Postconviction DNA Testing

Requests for postconviction DNA testing may come from a variety of parties, including inmates, their families, defense attorneys, police, or other persons such as members of the judiciary or elected officials who have been contacted for assistance. When a prosecutor receives a request for postconviction DNA testing, the prosecutor may have several choices on how to proceed:

  • Take no action until a formal motion or application is received.
  • Advise the person making the request to retain defense counsel.
  • Refer the person making the request to an organization that assists inmates with regard to postconviction DNA testing.
  • Refer the matter to a specialized unit in the prosecutor's office that handles postconviction matters.
  • Begin an investigation following the steps suggested below.

The prosecutor's choice of option will be governed by many factors, such as:

  • Whether statutory or case law dictates procedures that must be followed.
  • The organization of the prosecutor's office. The office may have a specialized unit to which all postconviction requests for relief are referred and the office may have written guidelines for handling requests.
  • The economic and personnel resources of the prosecutor's office, including the availability of technical assistance, with regard to DNA issues.
  • The experience of the prosecutor in answering habeas corpus and other relief requests and dealing with issues relating to DNA. The prosecutor who has little experience with DNA may be more inclined not to begin an investigation until defense counsel has been retained.
  • The information available to the prosecutor about the case on the basis of personal knowledge or details in the request. The prosecutor may conclude that the case probably falls into category 4 or 5 and can be disposed of promptly, or the prosecutor may conclude that the case is potentially a category 1 case that should be handled as quickly as possible in the interests of justice.

The recommendations that follow are designed for cases in which a prosecutor, after considering the factors listed above, concludes that a proactive approach is the best and most appropriate way to proceed. A proactive approach allows the prosecutor to exercise more control over timing and other decisions that must be made as the case continues. These recommendations provide information about the various stages of a request for DNA testing, give examples of various kinds of issues that may arise, and offer suggestions on ways in which these issues can be addressed efficiently and fairly.

The prosecutor should make every effort at cooperation and coordination with defense counsel once counsel is retained. The prosecutor and defense counsel should reach agreement on:

  • Turning over copies of briefs and court transcripts that may not be in the possession of the other party.
  • Selecting a laboratory to conduct testing.
  • Making results open and unlimited in their use by prosecutors, police, and parole personnel.

Irrespective of how the prosecutor chooses to respond to a request for testing, once the prosecutor is aware of a request for DNA testing, the prosecutor should take steps to ensure that there will be no destruction of any evidence that relates to the case in which testing is being sought. (See Preserve Evidence and Information.)


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