The Roles of Participants

The recommendations in chapter 4 presuppose cooperation and concern on the part of those who play a part in handling postconviction requests for DNA testing. These attributes are essential in achieving the goals of exonerating the innocent while preserving the judicial system's needs for integrity, finality, and efficiency. When an inmate is truly innocent, or the facts are such that favorable testing results would create reasonable doubt, the interests of prosecutors and defense counsel converge so that they may at some points have to modify their usual adversarial posture and engage in a joint cooperative venture. The discussion below considers the factors that affect participants' roles at various stages of postconviction requests for DNA testing.

Role of the Prosecutor

Prosecutors understand that DNA testing can demonstrate actual innocence in a category 1 case[1]. As officers of justice, prosecutors have an interest not only in exonerating the wrongly accused, but in bringing the guilty to justice. A groundless conviction means that the real perpetrator is probably still at large. DNA testing assists law enforcement because it may identify the true culprit in the case being challenged, clear up unsolved crimes, and prevent future criminal acts.

Consequently, some prosecutors may opt not to take a traditional adversarial stance when their office receives a request for postconviction DNA testing. Their response will be affected by the category of case, their familiarity with DNA testing, and the resources of their office. (For further discussion, see Recommendations for Prosecutors.) Prosecutors who are knowledgeable about DNA testing and have ready access to laboratory facilities and expertise may feel comfortable initiating DNA testing themselves instead of waiting for defense counsel to take the laboring oar. On the other hand, a prosecutor who has had no previous experience with DNA and/or has inadequate technical assistance may respond to requests for DNA testing by seeking assistance from the legal community and/or scientists with DNA testing expertise, or by making appropriate referrals to defense counsel or to projects that handle actual innocence claims.

Even the prosecutor who basically treats requests for DNA testing like all other applications seeking postconviction relief should adopt a cooperative attitude with regard to certain matters or truly innocent persons will be unable to substantiate their claims. Except in the case of patently frivolous category 5 claims, use the following as a guide:

  • Prosecutors should not delay responding to a request for DNA testing. Immediate action may be required because the statute of limitations may bar future proceedings. (See Legal Issues.)
  • Once a request for DNA testing is made, prosecutors should take affirmative steps to prevent the destruction of potentially relevant evidence (e.g., material from the crime scene or standards from victims or third parties) that may or may not have been tested. Immediate action may be needed when there is a policy authorizing the routine destruction of evidence.
  • Prosecutors should use their best efforts to locate the crime scene samples. The prosecutor who handled the case originally may be the only person who knows where they are.

Furthermore, prosecutors should consider at the outset whether expeditious discussions with defense counsel might not resolve the matter promptly. Defense counsel may be unaware of prior DNA testing that confirmed guilt. The evidence may not have been introduced at the original trial because restrictions on the admissibility of DNA evidence existed at the time, or because the abundance of other evidence convinced the prosecution that DNA evidence would be superfluous and needlessly
expensive.

Defense counsel may be raising an issue about prior DNA testing that could be resolved if the prosecutor showed defense counsel underlying laboratory notebooks or other materials that the jurisdiction does not ordinarily disclose. In such instances, prompt disclosure will ultimately save time and money.

[1] Category 1. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner. In these cases, prosecutors and defense counsel should concur on the need for DNA testing. (See the Framework for Analysis for further discussion of the four categories of cases designated by the National Commission on the Future of DNA Evidence.)

Role of Defense Counsel

Defense counsel should appreciate that convictions are rarely reopened and that a noncontentious attitude may expedite the location of needed biological samples and accelerate the testing process that is an innocent client's best hope for relief.

On the other hand, defense counsel must also recognize and inform their clients that truth may have a price and that inculpatory results will have to be disclosed to the prosecution. Convicted felons are not entitled to testing without risking the consequences of false claims of innocence.

Role of the Judiciary

Judges may feel compelled to take a proactive stance to protect the inmate seeking relief if the prosecution and defense are refusing to cooperate. A court may be especially likely to exercise its discretion in the interests of justice in a potential category 1 case, particularly if the court fears that the passage of time may make it impossible to ascertain the validity of a claim of actual innocence.

The judge's assistance may be sought in connection with such matters as locating and preserving evidence, obtaining discovery from laboratories, and compelling third parties to provide samples for elimination testing.

The court might also consider whether to exercise its discretion to appoint an expert to assist the court in a case that presents disputed, complex, technical issues relating to DNA testing or interpretation.

Role of Law Enforcement Personnel

Cooperation on the part of law enforcement officials may be crucial; materials needed for testing or retesting may be in their possession. 

Consequently, they can assist in:

  • Finding the evidence that was sent to the laboratory for testing.
  • Identifying and locating other evidence that is now testable.
  • Preserving the evidence.

Role of Laboratory Personnel

The public or private laboratory skilled in DNA testing can assist in the postconviction process in a number of ways, including:

  • Agreeing to conduct some pro bono testing at the request of a judicial officer, prosecutor, defense counsel, or project.
  • Making its personnel available to assist participants in a postconviction proceeding who lack adequate technical expertise.

Role of the Victims' Advocate

The role of the victims' advocate in postconviction proceedings is essential and complex. The advocate's usual role is to provide support, which will likely be needed during a postconviction proceeding as it may be extremely traumatic for surviving victims and their families to learn that a person found guilty is now attempting to vacate the conviction. The early involvement of victims' advocates lessens the chance of victims and their families making this discovery through the media and ensures that they are kept informed and treated with appropriate concern and respect.

In cases in which biological evidence was collected and still exists—and if the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner—advocates may also have to prepare their clients for the possibility that the inmate will be exonerated. If this occurs, advocates face the difficult task of providing support for the person whose misidentification of the culprit may have been the chief evidence leading to the original guilty verdict.

Advocates will at times be called upon to persuade a victim to agree to DNA testing even though the victim is convinced of the accuracy of the identification he or she made at the inmate's trial. For exclusionary purposes, samples may also have to be tested from persons who were engaged in sexual relations with the victim at the relevant time. Victims may be reluctant to provide names or to urge these persons to cooperate. In order to expedite postconviction proceedings, victims' advocates must make victims appreciate the desirability of cooperating because DNA testing may lead to the apprehension of the person who was truly guilty and prevent future criminal acts.

It is important to note that a number of States passed victims' rights statutes that require notification of victims, including notification of appeals proceedings, prison release, and application for pardon or commutation of sentence. Agencies involved in postconviction DNA cases should make certain they are complying with any applicable State statutes. (See a summary of DNA postonviction statutes prepared by the American Society of Law, Medicine & Ethics.)

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