Clearly, postconviction DNA testing will be useful only if a case meets certain criteria, which cannot be determined until sufficient information is gathered. The recommendations for prosecutors contain numerous suggestions on how to obtain the needed details at different stages of a postconviction proceeding. As information becomes available, it may be helpful to evaluate a case in terms of five broad categories, recognizing that the case may have to be reclassified because of new information, evidence, or technology, and that the boundaries delineating these categories are not always clear or undisputed. These categories are not intended to spell out legal consequences, which may in any event vary somewhat from jurisdiction to jurisdiction. Our aim is to provide the reader with an organizational framework for identifying issues and appropriate steps to take at various stages of an application for postconviction DNA testing. It must also be remembered that technology may vary from jurisdiction to jurisdiction and even within jurisdictions. Laboratories do not uniformly adopt innovations with regard to DNA testing at the same moment in time.

Category 1: Cases in which both the prosecutor and defense counsel concur on the need for DNA testing. In such a case, if the parties cooperate, it should be possible to make the necessary arrangements without recourse to a court and without demanding payment for DNA testing when the inmate is indigent. See examples.

Category 2: In some instances, however, exclusionary test results will not be determinative of innocence, although they may help an inmate obtain a new trial, a pardon, commutation, or clemency. There also are cases in which the prosecutor and defense counsel cannot agree on whether an exclusion would amount to a demonstration of innocence, would establish reasonable doubt of guilt, or would merely constitute helpful evidence. In cases such as these and othersthe assistance of a judicial officer may be essential to determine whether, and under what conditions, testing should be conducted. See examples.

Category 3: Cases in which, because of the present state of evidence or technology, testing will be inconclusive. Future developments may cause such a case to be reassigned to a different category. See examples.

Category 4: Cases in which it will be impossible to do any testing because the crime scene samples were never collected, were destroyed, or cannot be found despite best efforts. As the section  Recommendations for Prosecutors relates in considerable detail, a case should never be relegated to category 4 until every possible attempt has been made to ascertain the availability of biological evidence.

Category 5: Cases in which false claims of innocence are made. In these cases, prosecutors and defense counsel generally agree that no testing is warranted. If an inmate nevertheless persists in pursuing a request for testing, defense counsel should warn the client that the results may substantiate the inmate's guilt. See examples.