If results are favorable to the applicant, defense counsel and prosecutors should join in either a motion to vacate a conviction or, in a jurisdiction where such motions are time barred, an application for executive clemency or a pardon.

If results are favorable to the applicant, but the prosecution nonetheless opposes a motion to vacate, defense counsel must be prepared to litigate a State application for relief, appeal any unfavorable findings, and ultimately seek relief in Federal court.

In jurisdictions where newly discovered evidence claims are time barred, defense counsel should still be prepared to seek Federal relief based on "truly persuasive" evidence of innocence. [1]

If DNA results incriminate the applicant, defense counsel should abandon a claim of actual innocence based on DNA testing and make appropriate referrals.

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[1]The Commission takes no position on whether Federal courts should or should not grant Federal habeas claims where DNA testing has produced “truly persuasive” evidence of innocence; rather, it is simply suggested here that defense counsel should strongly consider litigating this undecided issue in appropriate cases.