Are There Other Bases on Which Petitioners Can Obtain Access to Testing?

Freedom of Information Act (FOIA) statutes in many States are very broad and frequently permit access to "tangible" objects that might embrace the kind of biological evidence needed for postconviction DNA testing. Inmates seeking access to evidence have been pursuing State FOIA claims as separate actions or in conjunction with other postconviction motions. These FOIA requests specify that DNA testing will not be performed on the evidence, without court approval, unless the samples can be divided to permit replicate testing. There are no reported decisions to date on such FOIA requests.

The Innocence Project also has claimed a right of access to testing under section 1983 of the Civil Rights Act on the ground that courts act under the color of State law when they refuse access to testing. As of this writing, there are no reported decisions that discuss this theory.

Go to the Next Section: What Kind of Showing Must the Petitioner Make to be Afforded Access to Testing?

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