Pretesting Stage
Once it is determined that some evidence still exists and that DNA testing or retesting could lead to a different result in a case, it is recommended that the court set an informal conference with counsel. It may also be helpful to have a representative of the State crime laboratory or another laboratory acceptable to both parties present. At the informal conference, the court should do all it can to foster cooperation between the parties. The court should seek agreement between the parties or may need to make a determination as to several issues that should be raised in the informal conference, such as:
- The method of preserving evidence for chain-of-custody purposes during the testing process.
- The type of DNA analysis to be utilized.
- The laboratory that will perform the testing. It may be necessary for the court to enter an order to release certain evidence to a laboratory for testing. Prior to any release, both sides should be notified and given an opportunity to be heard.
- Determination of the estimated cost of the testing and who will pay for it. This may be determined by local policy, State statute, agreement between the parties, or court order. In category 1 cases, the testing will generally be at State expense, but often the petitioner or his family will have to pay, with reimbursement made if there is an exoneration or exclusion.
- Determination of the amount of sample available for testing and replicate testing. If the entire amount of sample will necessarily be consumed, arrangements should be made for a defense or prosecution expert to observe the testing procedures, either by counsel or upon order of the court. The court should try to get the parties or their experts to agree to a protocol to be used. Otherwise, the court may be called upon to determine the protocol to be followed.
- Determination of whether it will be necessary to test the victim's relatives or third parties or whether additional samples need to be obtained from the victim. If it is so determined, take the following action:
- Ensure that contact with the victim is minimal, only when necessary, and through the victim services or advocacy office.
- Offer the victim a choice of what type of sample to provide, if at all possible (buccal swab, blood, hair, etc.).
- Attempt to seek stipulations or agreements between counsel on additional samples to be taken from others. If there is no agreement, the court will likely have to enter an order.
At this stage, it may be appropriate for the court to consider the use of "court experts" or a panel of the same, as has been done in complex civil cases with the use of special masters to assist in screening and evaluating evidence.
The court also should be aware of the need to preserve some of the sample, if at all possible, for investigation and testing of future suspects if the defendant is exonerated. This is another reason why the issue of replicate testing should be considered with input from laboratory personnel.
Go to the Next Section: Procedures After Postconviction Testing Results Have Been Obtained
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