When defense counsel receives a request from an inmate or someone seeking assistance on an inmate's behalf to obtain a postconviction DNA test, the following steps should be taken:
Initial relevancy determination. After the initial letter or other inquiry is received, defense counsel should review the request to determine whether DNA testing is at all relevant. For example, if it is a rape case in which the defense at trial was consent, or a murder trial in which defense counsel asserted self-defense, then DNA testing will not be helpful in proving innocence, barring special circumstances. (See discussion in chapter 1.) If, upon review, it is clear that the case does not involve biological evidence suitable for DNA testing, then a letter should be sent to the inmate as soon as possible explaining that he must pursue other avenues to challenge his conviction.
Prior DNA testing. If the inmate's letter indicates that DNA testing has already been conducted and the results were inculpatory, the defense team may choose to refer the inmate to an organization or attorney that can review the quality and legitimacy of the DNA testing. Please note, however, that even if DNA test results were inculpatory, more discriminating tests may be available, and defense counsel may want to consider pursuing this option. For example, a PCR-based DQ inclusion is not as discriminating as a short tandem repeat (STR)-based inclusion.
Send followup questionnaire. If it appears to be a viable case or if more information is needed to make a determination, defense counsel should send a followup questionnaire, based on information immediately available to the inmate. The questionnaire should be composed of questions eliciting basic information about the background of the case. The questionnaire should include the following:
The questionnaire should ask the inmate to identify what he or she has available, including trial transcripts, police reports, laboratory reports, appellate briefs, postconviction briefs, and lists of evidence collected (these lists may be known as logs, sheets, or inventories).
Defense counsel should send a cover letter with the questionnaire. The cover letter should advise the prospective client that:
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