To achieve satisfactory testing arrangements, defense counsel without extensive experience handling DNA matters should consult with more experienced colleagues in dealing with both the postconviction DNA applications and the testing process. Two particularly valuable sources to which attorneys can refer are: the National Institute of Justice study published in 1996 entitled, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial and the 1996 National Research Council's publication, DNA Technology in Forensic Science.
A laboratory and the best methods of testing need to be agreed upon by representatives of both parties. Defense counsel should consider the following issues when entering into these discussions with the prosecutor:
- The different methods of DNA testing that are available.
- The age, type, and amount of evidence available.
- Where and how the evidence was stored.
- The types of technology that a specific laboratory has available.
- How long the laboratory has had the technology in question.
- The reputation of the laboratory.
These factors are especially important where the samples may be old or have degraded and there is not enough sample to conduct more than one test. It is generally possible, for example, for scientists retained by both sides to work out a protocol whereby preliminary tests are performed by one laboratory to determine the quality and the quantity of DNA available. Based on these determinations, the parties can agree on what testing should be performed, who should do it, and who should be present to witness the testing.
It may be necessary to obtain additional samples from the victim and/or any of his or her prior consensual partners. If this is the case, the prosecutor, ideally through victims' services, should contact the victim to facilitate this process. If the victim or third party will not agree to submit samples for purposes of elimination, then it may be necessary to go to court to obtain an order.
Agreement should be reached, if there is enough sample, to do replicate testing, thereby minimizing the chances of an erroneous result due to contamination, mishandling of samples, or any other factor.
At the very least, provisions must be made to ensure that, if there is not enough sample to conduct replicate testing, a neutral expert can review the results and be involved in establishing the proper testing protocols in light of the facts of each case and on an individual basis.
In category 1 cases (i.e., where testing will determine the outcome) the State should pay. In category 2 cases (where the outcome is questionable) the inmate may have to bear the costs of testing. It is possible that in category 2 cases the inmate may be reimbursed if the results are exculpatory. It should be noted that if the State pays for the testing, then it will most likely use its own State or county laboratory.
Defense counsel should ordinarily expect and agree that the DNA testing results, regardless of outcome, will be made public.
Go to the Next Section: Establish a Chain of Custody and Preserving Evidence for Testing
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