Information Gathering/Searching for Evidence

Upon referring the request to the prosecution and defense, the court's role becomes more reactive than proactive. Extensive investigation needs to be done by counsel before a request for DNA testing can be granted. A hierarchy of cases has been described in the introductory chapter of these recommendations that will help the parties and the court determine if the case is suitable for DNA testing. The court will likely be involved only in category 1 and category 2 cases.

Category 1 involves cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results will exonerate the petitioner.

Category 2 involves cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results would be helpful to the petitioner's claim of innocence, but reasonable people might disagree as to whether the results exonerate him. This category also includes cases where, for policy and/or economic reasons, there might be disagreement as to whether DNA testing should be permitted at all or, for indigent inmates, at State expense. The decision on whether this is a case for testing or retesting may have to be made by a judicial officer.

Category 3 involves cases in which biological evidence was collected and still exists. However, if the evidence is subjected to DNA testing or retesting, favorable results would be inconclusive.

Category 4 involves cases in which biological evidence was never collected, or cannot be found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested. In such cases, postconviction relief on the basis of DNA testing is not possible.

Category 5 involves cases in which a request for DNA testing is frivolous.

The court can play an important role in helping obtain access to evidence prior to testing. This is a crucial issue in that it allows the "screening" process to continue. This screening serves as a weeding out of cases in which DNA evidence will be irrelevant. The court should be willing to enter orders for the parties to gain access to evidence that has been preserved, whether in a laboratory, police property room, clerk's office, or prosecutor's office. This evidence may include clothing or other crime scene evidence that was never before examined for biological evidence because it is not visually apparent.

As information is gathered and counsel search for the evidence, the court may be called on to issue certain orders. Upon request of counsel for the State or defendant, or jointly, or sua sponte, it is recommended that the court issue an evidence preservation order to the investigating agency, clerk of court, crime laboratory, prosecutor's office, or any other agency in a jurisdiction that may have evidence that might be subject to DNA testing. This is done to prevent destruction or disposal of the evidence, which would preclude testing in the future. The evidence to be preserved may include items not used at trial, but which were collected and might contain DNA evidence. At this stage, the court also can help determine if any orders were ever entered for destruction or disposal of evidence.

In appropriate circumstances, at the request of either party, or sua sponte, the court might consider whether a "no contact with the press" order should be issued. The court should be particularly sensitive to victim issues in this regard.

Go to the Next Section: Pretesting Stage

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