Requests for postconviction DNA testing may come from a variety of  parties, including inmates, their families, defense attorneys, or police. When a request for postconviction DNA testing is received, recommendations for prosecutors include the following: 

  • Get as much information as possible about the inmate and the case, including defenses proffered at trial and defenses currently claimed.
  • Determine whether the case is suited to DNA testing, depending on the category of the case. Evaluate previous DNA testing.
  • Provide information to the requestor, including the fact that DNA testing could have a negative effect if the inmate's DNA testing results are placed in a DNA criminal identification bank and he is identified as a perpetrator of other crimes.
  • Throughout the process, consult and notify victim/witness specialists, forensic DNA experts, defense counsel, and prosecutors experienced in DNA technologies and postconviction relief issues.

See chapter 4 of Postconviction DNA Testing: Recommendations for Handling Requests for the complete National Commission on the Future of Forensic DNA's complete Recommendations for Prosecutors.

Prosecutors understand that DNA testing can demonstrate actual innocence in a category 1 case1. 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 chapter 4 of in the NIJ Report Postconviction DNA Testing: Recommendations for Handling Requests .) 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 discussion in chapter 2 of in the NIJ Report Postconviction DNA Testing: Recommendations for Handling Requests)
  • 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 NIJ Report Postconviction DNA Testing: Recommendations for Handling Requests for further discussion of the four categories of cases designated by the National Commission on the Future of DNA Evidence.)

Some or all of the content on this page was excerpted from the Special Report Postconviction DNA Testing: Recommendations for Handling Requests, developed under an award from the Office of Justice Programs' National Institute of Justice. See award product disclaimer.