Is an Indigent Petitioner Entitled to Have the State Pay for Postconviction DNA Testing?

The special New York and Illinois postconviction DNA statutes[12] require the State to pay for testing if the petitioner is indigent and there is a reasonable basis to believe that postconviction DNA testing could produce substantial evidence of innocence. There are no reported decisions as of this date mandating that indigent petitioners receive funds for postconviction DNA testing that could establish innocence. It is, however, our experience that once a court decides that postconviction DNA testing should be performed, or the prosecution and defense agree that testing is appropriate, funds for testing have been provided either by the court (just as it funds pretrial expert fees for an indigent defendant), by the public defender's office, or by the prosecution. Increasingly, as State and local crime laboratories develop the capacity to do DNA testing, postconviction DNA testing is simply referred by all parties to the public laboratory, which does it "free." Nonetheless, concern that the "floodgates" would be opened, and the public treasury depleted, by demands for postconviction DNA testing has been cited informally and formally as a factor in judicial and prosecutorial rejection of requests for postconviction DNA testing even in the category 1 and category 2 cases . Payment for postconviction DNA testing by indigent petitioners is, therefore, likely to emerge as a significant issue for litigation. A related question is whether an indigent petitioner is entitled to funds for an expert needed to interpret the testing results.

Two Supreme Court cases bear on the payment issue. In Ake v. Oklahoma, 470 U.S. 68, 83 (1985) the Court held that an indigent defendant had a due process right to the services of a psychiatric expert when the expert's testimony would be "a significant factor in [the] defense." When expert assistance to an indigent provides "a reasonable chance of success," the Court reasoned, "the potential accuracy of the jury's determination is so dramatically enhanced" that "the State's interest in its fisc must yield." Id. Petitioners who can show that they have a "reasonable chance of success" to prove innocence through postconviction DNA testing, a technology that "dramatically enhances" the accuracy of factfinding, even decades after a verdict, will obviously find useful language in Ake. Nevertheless, there is a significant legal difference between a request to fund relevant DNA testing in a pretrial posture-- where it is surely constitutionally required--and a post-trial application after the petitioner has been found guilty.

A second case, Little v. Streater, 452 U.S. 1 (1981), has relevance to the payment issue because it recognizes the constitutional significance of a technological advance that can definitively alter fact determinations. In Streater, the Court held that an indigent Connecticut inmate who was being sued in a paternity action had a right, under the due process and equal protection clauses, to funding for blood grouping tests because "[u]nlike other evidence that may be susceptible to varying interpretation or disparagement, blood test results, if obtained under proper conditions by qualified experts, are difficult to refute." 452 U.S. at 14. "Thus," the Court emphasized, "access to blood grouping tests for indigent defendants such as appellant would help to insure the correctness of paternity decisions in Connecticut." Plainly, the kind of conclusive results DNA testing can generate in a criminal case are directly analogous to blood group paternity tests, but a postconviction application for DNA testing, cutting against the State's interest in preserving the "finality of judgments," is still a more difficult constitutional posture than the pretrial, "quasi-criminal" paternity testing request made in Streater.

Go to the Next Section: Is an Inmate Whose Conviction is Vacated on the Basis of Favorable Postconviction DNA Testing Results Entitled to Compensation?

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