NOTE: This material was compiled in 1999.

May Consensual Partners Be Required to Provide Elimination Samples?

On occasion, when an application for postconviction DNA testing is made, the prosecution opposes relief by taking a different factual position on the biological evidence than it did at trial. Most frequently, it claims in rape cases that no DNA testing needs be performed when the eyewitness identification is strong; the sperm on vaginal swabs or underwear, attributed to the defendant at trial, may have come from a prior consensual partner of the victim; and the defendant may have failed to ejaculate. While this argument has succeeded in some unreported cases, published decisions reject this position as a reason not to do initial testing that could exclude an inmate, or, once an inmate has been excluded, to deny a new trial without conducting a test that shows the prior consensual partner is, in fact, the source. See, e.g., Commonwealth v. Reese, 633 A.2d at 206, 209-10 (Pa. Super. Ct. 1995).

Our recommendation is that "elimination" samples from third parties may be needed in such a case but that they normally should not be sought until after an exclusion has been obtained from DNA testing. This is advisable both to minimize stress for victims and third parties, as well as to create a stronger legal basis for obtaining the "elimination" samples once it becomes necessary to do so.

In fact, elimination samples from third parties have routinely been obtained at the request of prosecutors, courts, and governors in more than a third of the postconviction DNA exonerations to date. The samples have generally been gathered on a voluntary basis, although in more than a few instances judges have made it clear to prosecutors that, in light of the DNA exclusion, the inmate's judgment would be vacated if the third-party samples were not produced. And as previously noted, in one reported decision, Commonwealth v. Reese, 663 A.2d at 209-10, the trial court made it clear that the potential need for third-party elimination samples was not, in and of itself, a basis not to permit access to evidence and potentially exculpatory DNA testing. Otherwise, we have not identified any reported cases that directly deal with a third party contesting the taking of an elimination sample in the context of postconviction DNA exclusion.

In a number of reported paternity cases, courts have compelled third-party relatives to submit to DNA testing for the purpose of establishing paternity.[1] Similarly, the U.S. Supreme Court has upheld the issuance of grand jury subpoenas, based upon a showing of relevancy to the investigation, not probable cause, to obtain "nontestimonial" evidence[2] such as voice exemplars from third parties for "elimination" purposes. See United States v. Dionisio, 410 U.S. 1, 5-7 (1973).

Go to the Next Section: How Do Time Limits in Motions for a New Trial Based Upon Newly Discovered Evidence Affect Requests for Postconviction DNA Testing?

Download the complete document: Postconviction DNA Testing: Recommendations for Handling Requests (Adobe PDF)


[1] See, e.g., Sudwishcher v. Estate of Hoffpauir, 589 So. 2d 474 (La. 1991); Lach v. Welch, 1997 WL 536330 (Conn. Super. Ct. Aug. 15, 1997), 1994 WL 271518 (Conn. Super. Ct. June 13, 1994); In re Estate of Rogers, 583 A.2d 782 (N.J. Super. Ct. App. Div. 1990). See also Charles Nelson Le Ray, Implications of DNA Technology on Posthumous Paternity Determination: Deciding the Facts When Daddy Can’t Give His Opinion, 35 B.C.L. Rev. 747 (1994) (discussing generally DNA testing on nonparty relatives).

[2] It is well established that the compelled taking of blood from a person for testing in the course of a criminal investigation is not a violation of the party’s Fifth Amendment right against self-incrimination. See Schmerber v. California, 384 U.S. 757, 761–65 (1966). Moreover, on the basis of this distinction, one may be constitutionally compelled to provide handwriting exemplars, see United States v. Mara, 410 U.S. 19, 21–22 (1973) and Gilbert v. California, 388 U.S. 263, 266–67 (1966); to provide voice exemplars, see Dionisio, 410 U.S. at 5–7; to stand in a lineup, see United States v. Wade, 388 U.S. 218, 221–23 (1967); to don incriminating clothing, see Holt v. United States, 218 U.S. 245, 252–53 (1910); to submit to fingerprinting, see United States v. Peters, 687 F.2d 1295, 1297 (10th Cir. 1982); and to submit to photographing and to provide hair samples, see In re Rosahn, 671 F.2d 690, 694 (2d Cir. 1982).