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.

Recommendations for the Judiciary

Handling Initial Requests

Trial courts routinely receive requests, petitions, motions, or even letters for postconviction relief. Some are filed by defendants, some by their family members, and some by defense counsel on a defendant's behalf. Rules and statutes govern the manner in which courts act on these postconviction relief requests, based upon time limits, preclusion, and the like.

However, requests for postconviction DNA testing present a somewhat unique issue for the trial court in that the defendant making the request does not have "newly discovered evidence" that would probably overturn a conviction, and in many jurisdictions any request for relief would be time barred. But at the time of conviction, for example, a defendant who claimed innocence may not have had the opportunity to have evidence that was collected by law enforcement officials tested for DNA comparison, or the testing that was available at the time was not as sophisticated as today's.

In some cases, if the trial court is familiar with the case, a summary determination that DNA testing would not be relevant to the outcome of the case can be made. For example, if the court in a sexual assault case knows that the defense at trial was consent, or in a homicide case that the defense was self-defense, DNA analysis normally would not be relevant.

Assuming that the court does not make its own summary determination, the court's role, when it receives such a letter or request, should be as a referral source. A copy of the letter or request should be sent to the prosecuting agency. If the inmate or a family member writes the letter, it is recommended that a referral be made to the local public defender's office, the State criminal defense attorneys' organization, the local court-appointed counsel, or a national resource center that deals with DNA evidence cases such as the Innocence Project at Cardozo Law School in New York. The court should not notify the victim or victim's family upon the initial request, but rather should leave the notification, and the decision when to notify, to the prosecutor and victim assistance office.

Go to the Next Section: Information Gathering/ Searching for Evidence

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