SAMPLE MEMORANDUM
The following is a Memorandum delivered by IPA, and will be used as a model for
our project in the Philippines
To: Legislators, Colleagues, and Other Interested Parties
From: Nina Morrison, Executive Director, Innocence Project
Re: Essential Elements of Postconviction DNA Testing Statutes
Date: October 2, 2003
To date, more than thirty-five states have enacted laws providing convicted
persons with access to DNA testing to support their claims of innocence. These
testing laws, however, vary widely in scope and substance. Some are
comprehensive, state-funded testing programs open to all convicted persons with
reasonable claims of innocence. Yet, in others, the "right" to DNA testing is
sharply limited - for example, by leaving decisions about testing to the sole
discretion of prosecutors, or allowing testing in only a limited class of cases
or under strict time limits. Others were enacted with "sunset provisions" that
give such a narrow window of time in which to prepare and file DNA testing
petitions that few convicted persons will be able to take advantage of them;
three of these thirty one laws have already expired, just a year after their
enactment, with no more than a handful of petitions having been filed in each
state.
The Innocence Project has been negotiating and litigating postconviction DNA
testing cases for nearly a decade, both before and after these statutes were
enacted. Until three years ago, only two states - New York and Illinois - had
such laws at all. Our experience of working with postconviction DNA evidence
generally - and seeing how these individual states' laws operate in practice -
have given us a unique perspective on the pros and cons of the various
provisions they contain.
In response to numerous queries from lawmakers and colleagues who are seeking to
enact new statutes or improve those currently on the books, we have prepared
this briefing paper setting forth the most essential features of DNA testing
laws, as well as the pitfalls that some of them contain.
Finally, in addition to the individual state statutes, there are two other
"model" bills that may serve as useful guides. The first is the Uniform Statute
for Obtaining Postconviction DNA Testing, which was drafted and unanimously
approved by the Department of Justice's National Commission on the Future of DNA
Evidence in April 2000. This document (commonly referred to as the "Model
Statute") is a useful starting point for new statutes for two reasons. First, it
comes from the Commission itself, whose members included two Innocence Project
representatives, but consisted primarily of law enforcement officials. Second,
it covers many - but not all - of the "essentials" listed below. As the Model
Statute was drafted before nearly all current state statutes became law, we have
had the opportunity to learn more about how these provisions work in actual
litigation - as well as the need for other statutory provisions not previously
recognized as essential. Thus, while we highly recommend that you look to the
Model Statute as a guide in drafting new legislation, we also urge you to modify
its provisions to reflect the additional considerations set forth in this memo.
The other key to keep in mind as state laws are enacted and revised is the
federal Innocence Protection Act ("IPA") of 2003. In July 2002, an earlier
version of the IPA was approved by the Senate Judiciary Committee in a
bipartisan 12-7 vote, and consideration by the House Judiciary Committee was
pending, when Congress adjourned for the year. As the IPA has a majority of
members of both Houses as co-sponsors, if these Committees approve the
reintroduced bill in 2003 and the conference committee can agree on final
language, passage is highly likely. If the IPA becomes law, it will require all
states who receive a variety of federal criminal justice funding to, among other
things, enact postconviction DNA testing laws that meet or exceed the bill's own
standards. As the IPA's standards are quite comprehensive, including both DNA
testing and preservation of biological evidence requirements, its passage will
require significant revisions in most state DNA statutes.
Here, then, are what we have found to be the most important features of
postconviction DNA testing statutes.
Reasonable standard of proof at testing stage. Beware of statutes that require
the applicant to show how an exculpatory DNA test will prove "actual innocence"
before a court can allow the testing to proceed. There is nothing wrong with
this requirement in theory - since those seeking testing are all asserting their
innocence, and will eventually have to make such a showing if they are to be
released from prison as a result of exculpatory DNA tests. In practice, it has
proven to be unduly burdensome, and too often has been misinterpreted to
preclude testing for those later shown to be innocent. Often, the significance
of DNA testing cannot fully be measured until the results are in and weighed
against the rest of the evidence in the case. Courts who deny testing on that
ground will deprive themselves and the public of valuable forensic information
that can both exonerate the innocent and convict the guilty.
In Arizona, for example, prosecutors vehemently opposed postconviction testing
on crime scene saliva evidence that had been relied upon to convict death row
inmate Ray Krone of rape and murder, arguing that it could have been deposited
by others at the scene and thus would not prove his "actual innocence." Once
testing was finally obtained, the results not only proved that someone other
than Ray Krone was the source of that genetic material, but also identified the
actual perpetrator after the profile was entered into the DNA database.
Similarly, in Pennsylvania, the state courts initially denied Bruce Godschalk
access to DNA testing on evidence from the two rapes to which he had given
detailed confessions, on the ground that such testing was not likely to prove
his "actual innocence." It was not until a federal court granted testing under a
less demanding standard that testing could proceed. The results of that testing
revealed that the same assailant raped both of the victims. The results also
excluded Godschalk, thus conclusively proving his innocence and leading to his
immediate release.
Instead of requiring the movant to demonstrate "actual innocence" at the testing
stage, the better statutes provide that the convicted person demonstrate a
"reasonable probability" that exculpatory DNA tests would lead to a different
result, and/or that the evidence to be tested is "material" to the issue of the
perpetrator's identity. (See, e.g., the Model Statute, the Innocence Protection
Act of 2001, CA, TN, IN, among others.) By allowing courts to turn to the
question of actual innocence after the test results are in, this standard
effectively weeds out frivolous cases in which DNA testing would clearly have no
impact on the result from those in which it has the potential to exonerate a
convicted person.
Allow access to DNA testing whenever it can establish innocence, including cases
where the defendant pled guilty. A few states (DE, NM, FL) automatically deny
postconviction DNA testing to any person who pled guilty. But the fact that
innocent people do pleas - whether to avoid the death penalty or longer prison
terms, or because they failed to understand the consequences of doing so -- has
been vividly demonstrated by postconviction DNA testing that exonerated a number
of these people in recent years. (See, e.g., the cases of Christopher Ochoa,
Jerry Frank Townsend, and David Vasquez, at www.innocenceproject.org/caseprofiles).
Even if the vast majority of the innocent choose to take their cases to trial,
wholesale exclusions of guilty plea case will undoubtedly deprive a number of
actually innocent persons of the chance to exonerate themselves through DNA
testing. Be careful, as well, of statutes that require the defendant to show
that "identity was an issue" at trial or in the proceedings that led to the
conviction, since, as a practical matter, this will also exclude those who did
not assert their innocence to a jury. States that wish to make DNA testing
available only to resolve the issue of the real perpetrator's identity can do so
by requiring the defendant to show, at the time they seek testing, why "identity
was or should have been" an issue in the case, or why identity "is an issue" at
the time the motion is made, as a number of states have done.
No arbitrary "sunset provisions." A handful of states have imposed absolute
deadlines - sometimes as little as a year from the statute's effective date -
after which no postconviction DNA testing motions may be filed. These cut-off
dates serve no legitimate state interest when weighed against the enormous cost
of denying DNA testing to those innocent persons who will not be able to file
before the statutes expire. Opponents of sunset provisions can point to two
compelling reasons for this fact. First, because the cases under review are
usually more than a decade old, and because advocates for the innocent are
deluged with thousands of requests for representation each year, the arduous
process of screening a prospective new case and locating the documents (e.g.
transcripts and laboratory reports) and physical evidence needed to file a
facially-sufficient motion usually takes years to complete. Second, the unique
nature of DNA evidence makes the state's interest in "finality" and
"reliability" - which are generally the rationales for imposing time limits on
introducing other evidence in postconviction proceedings -- inapplicable here.
Indeed, the accuracy of postconviction DNA testing has proven it to be a more
reliable method of proof than the other kinds of evidence (such as eyewitness
identification) that are commonly used to obtain the original convictions.
Require state officials to account for evidence in their custody. Statutes that
require convicted persons to demonstrate the existence, location, and/or "chain
of custody" of biological evidence from their cases at the time they file a
motion for DNA testing fail to recognize the considerable challenge this
presents. While groups like the Innocence Project undertake an exhaustive search
for the evidence before filing these motions (often locating it in unimaginable
places, including trash bins outside a District Attorney's office, and in boxes
labeled with the wrong case number in the recesses of courthouse basements),
oftentimes even "lost" or "destroyed" evidence has been found after a motion has
been filed and the courts require state officials to account for its
whereabouts. In a recent Tennessee case, for example, our students spent seven
years trying in vain to track down evidence from a 1981 rape conviction, only to
file a testing motion and have the state "locate" it within days of the first
court appearance. By contrast, requiring the movant to identify the items of
evidence to test at the time the motion is made is reasonable, and will often
help the state and the court determine its whereabouts. (See, e.g., TX, LA, and
UT statutes.) Also reasonable is the simple rule that a court must "find" that
the evidence is still in existence - but requiring a convicted person to make
that showing before he or she can file such a motion is not.
Similarly, requiring movants to prove the "chain of custody" of biological
evidence collected and held by state officials since trial is both unfair and
unnecessary, as the state's records on storage and transfer are often
incomplete, but especially because the nature of DNA technology makes the test
results self-authenticating in all but the rarest cases. States concerned about
evidence tampering and integrity would do better to follow the more narrowly
tailored rules adopted in Indiana (which presumes sufficiency of integrity if
the evidence is in the possession of a government agency, and requires an
affirmative showing only if "another person" holds the evidence) or Wisconsin
(which allows testing even if "the chain of custody does not establish the
integrity of the evidence," so long as "the testing itself can establish the
integrity of the evidence.").
Require states to preserve biological evidence for a reasonable period of time.
This is one of the most important but often overlooked provisions in state DNA
access laws. Generally speaking, evidence preservation - how long, and under
what conditions, officials must preserve biological or other evidence after the
trial has ended - is still subject to local custom or, at times, laws or
regulations that vary considerably (and often are not followed) by region, even
within a single state. The result is that tracking down the whereabouts of
biological evidence years after conviction is a scattershot, often difficult
process - one that has resulted in evidence "found" by sheer luck as well as
perseverance -- but it makes the "right" to DNA testing an empty one in the many
cases where there is simply no evidence left to test. In approximately 25% of
cases the Innocence Project has taken in the last decade (i.e., pre-screened
cases in which DNA testing, if performed, would prove of guilt or innocence),
the biological evidence sought has been lost, destroyed, or degraded beyond
testability.
California is one of the few states to have enacted a broad preservation of
evidence provision in its DNA testing statute - one that, like the Innocence
Protection Act, requires law enforcement agencies to retain biological evidence
for the length of a person's incarceration, unless the state notifies the inmate
of its intention to destroy the evidence and the inmate does not object. One
year after its implementation, all indications are that this requirement has not
imposed any undue burdens on law enforcement agencies, and has also helped
streamline evidence retention and storage procedures. A better standard would
require the preservation of evidence as long as movant and any co-defendants are
under state control, e.g. parole.
Exempt DNA testing motions and related proceedings from the procedural bars that
govern other forms of postconviction relief. Recognizing that many, if not most,
of those who now seek postconviction DNA testing have long since exhausted their
other postconviction remedies - and that DNA testing years after the offense
would nevertheless be uniquely reliable and probative - the drafters of the
Model Statute explicitly provided that "[n]otwithstanding any other provision of
law governing postconviction relief," testing motions may be filed "at any
time." The Model Statute goes on to make clear that if exculpatory results are
obtained, the court "shall order a hearing, notwithstanding any other provisions
of law that would bar such a hearing as untimely," so that the court may set
aside the conviction or make other appropriate orders.
Nearly all of the state statutes since enacted do the same, as their drafters
agreed that DNA evidence should be an exception to the usual rules that govern
criminal appeals. While this may seem self-evident, drafters of future statutes
should be careful to make this distinction explicit. Indiana's statute, for
example, while generally quite expansive in its provisions, failed to address
the intersection between the new law and the state's other postconviction relief
rules, leading the Indiana Supreme Court to interpret DNA testing motions as
just another postconviction relief provision, forcing nearly of those who will
seek testing under the law to obtain special leave of the appellate courts
before they may file their motions. While obtaining such leave may not prove
difficult, it adds yet another layer of unnecessary judicial involvement and
further delay that can easily be avoided by making clear in the statute itself
that the usual time bars and restrictions on filing do not apply.
Right to appeal from orders denying DNA testing. While some of the earlier
statutes failed to explicitly provide for this (perhaps assuming that the rules
governing appeals in other civil proceedings would govern), in at least one
state that did not, it has been argued that the legislature's failure to do in
the DNA statute itself meant that it intended to preclude such appeals. To
ensure that those who seek DNA testing get full and fair review of their claims,
state DNA statutes should be sure to provide for at least one appeal as of right
whenever applications for testing are denied. The interpretive issues posed by
these motions are by no means straightforward (especially under the more
stringent statutes that require proof of "actual innocence" or that the testing
sought was "unavailable" at trial), and courts sometimes get it wrong. The harm
caused by an improper denial of DNA testing to a person who is factually
innocent and who has exhausted his other avenues of relief clearly outweighs the
marginal savings of judicial resources that would result from denying review in
the handful of such motions that are denied each year. Ideally, such statutes
would not provide for a corresponding right for the State to appeal from orders
granting testing motions, as these are non-final orders that result in no
irreparable harm to the state (whereas relief from the conviction after
exculpatory test results are obtained will always require further proceedings in
the trial court that will be subject to appeal). As the State's right to appeal
is not a major deficiency in the state statutes that provide for it, and
ensuring the right of movants to appeal is so important, providing for both may
be a workable compromise.
Full, fair, and prompt proceedings once the DNA testing motion has been filed.
All DNA testing statutes should require courts to hold a hearing on the motion
before ruling, so that the merits get a full and fair review, and also so that
the court's order will be sure to include important issues related to DNA
testing in individual cases (such as choice of laboratories, splitting the
sample to be tested, and payment). Similarly, drafters of statutes would be well
advised to set prompt and clear timelines within which the State must respond to
the motion and the court shall hold a hearing. Virginia's statute has proved
especially efficient and workable in this manner. By contrast, in Texas, no such
timeline for response and rulings are provided, and the Innocence Project has at
least one Texas case in which the testing motion was filed a year ago and the
State has yet to file an answer. This delay is not only undesirable for its own
sake, but could have real consequences on the outcome of the testing itself,
given that the passage of time increases the risk that biological evidence will
degrade to the point where DNA profiles cannot be obtained at all.
No unfunded mandates. Legislators who create a "right" to DNA testing without
allocating any funds to implement the new laws will invariably fall short of
their worthy goals. Just two additions to these statutes can significantly
maximize the odds that indigent prisoners will be able to prove their innocence
through DNA testing, without breaking the state's bank or flooding its courts
with meritless litigation: (1) funds to cover laboratory costs of DNA testing,
and (2) appointment of counsel to represent indigent petitioners, and, most
importantly, to screen prospective DNA cases before litigation is commenced.
Experience shows that, in the vast majority of the more than twenty states that
have had DNA testing laws enacted for a year or more, only a handful of DNA
testing motions have been filed annually. Thus, as an April 2002 report from the
Rhode Island Legislature's Fiscal Office surveying existing state DNA statutes
finds, legislators can feel confident that relatively modest allocations of
funds can effectively implement these laws and maximize the odds that no
innocent person will be denied a DNA test because of indigency. Regarding
payment for the direct costs of testing, while these costs (usually between
$1000-$5,000 per test, depending on the laboratory, method, and sample size)
would be prohibitive to most indigent inmates, they are hardly likely to make a
significant dent in a state's budget - especially when, as with the costs of
storing biological evidence, they can be offset by considerable savings in years
of incarceration costs from just one exoneration of an innocent inmate.
Similarly, providing for appointment of counsel is not only necessary to assist
inmates with the complexities inherent in presenting and negotiating any motion
for DNA testing, but also can help save considerable court costs on the front
end. This is especially so in states that appropriate funds to entities (whether
law-school based clinics or a unit within existing indigent defender offices) to
screen potential cases before they reach the litigation stage. Rather than have
the courts sift through a pile of indecipherable pro se petitions in cases where
DNA testing may not be probative, such entities can assume the important but
time consuming tasks of reviewing inmate requests for assistance, collecting and
reviewing the trial record, and searching for any remaining biological evidence
in the state=s custody, in order to determine which cases, if any, actually
merit filing of a motion for DNA testing. Experience suggests that the presence
of such entities in California and New York, in particular, has been central to
the low numbers of petitions filed in the courts of those states. While
thousands of inmates have written to these entities asserting claims of
innocence, after the Project's extensive review processes were complete, only a
tiny fraction of these queries in each state have resulted in DNA testing
motions being filed. Thus, experience suggests that a relatively modest
appropriation of funds to implement postconviction DNA testing laws is not only
necessary to realize their potential to exonerate the innocent, but can save
state courts time and money as well.
Focus on the results that current DNA technology can yield, not its
"availability" at the time of trial. Nearly all of the current state statutes
require some showing that the testing will provide evidence of innocence that
the defendant did not have an opportunity to obtain at trial. While lawmakers
may, understandably, want to prevent convicted prisoners from belatedly seeking
DNA testing after making a "strategic" decision to forgo it previously, these
requirements, in practice, unduly burden courts with difficult and unnecessary
inquiries about the "availability" of this rapidly advancing technology in a
given time period - a question that varies considerably depending on the
location and resources of the person's trial counsel and the technology sought.
It also unfairly denies testing to those defendants for whom DNA testing was
theoretically "available," but who did not seek it because they were represented
by ineffective or ill-prepared trial counsel. A far simpler and fairer
requirement is the one contained in the Model Statute and a number of similar
state laws: that the movant show why the particular method of testing sought
will yield "more accurate and probative" or "more favorable" information
regarding a material issue in the case. All parties then, including the State,
have an interest in knowing those results. In those rare cases where there are
grounds to believe that the applicant is seeking DNA testing that is, or is
highly likely to be, merely duplicative, courts can address that concern by
requiring the applicant to pay for the testing himself, subject to reimbursement
by the state if the results show otherwise.
Flexibility in where, and how, DNA testing is conducted. Experience has shown
that the place and manner of testing in these high-stakes cases should not be
restricted by "one size fits all" statutory requirements. Whether the tests
should be conducted by a private or state crime laboratory; whether the sample
can be split for multiple tests or, instead, is so small that it will be
consumed in a given test; and whether the method and nature of the test(s) are
adequate to achieve a clear result - all of these are just a few of the
fact-sensitive considerations that arise in most cases. Many requirements
governing laboratories and accreditation requirements are also unduly
restrictive, as some of the most advanced and reliable laboratories are not
accredited for various reasons unrelated to competence. Instead, the best
provisions permit the parties to select a laboratory "by mutual agreement," and,
if the parties cannot agree, leave that decision to "the discretion of the
court," as Missouri and other states have done. If legislators wish to make the
state crime laboratory the default laboratory of choice, a less ideal but still
acceptable provision is to permit the court to order testing elsewhere "for good
cause shown," and/or if the movant pays the cost differential. Similarly, rather
than legislatively mandate how all DNA testing must proceed, the best state
statutes give the courts flexibility to impose "reasonable conditions" on
testing procedures in individual cases.
Other provisions: A few other provisions, perhaps not as essential as the
others, can nevertheless strengthen DNA access laws.
Allow courts to consider "all other relevant evidence, whether or not introduced
at trial." In practice, most courts do, in fact, take non-DNA evidence (such as
witness recantations or evidence pointing to alternate suspects) into account
when ruling on testing motions or, more commonly, when considering motions to
overturn convictions after exculpatory DNA test results are obtained. These
other forms of evidence are often necessary to fairly evaluate the strength of
the prosecution's case in light of the newly obtained DNA evidence. But, given
the stringent restrictions on other postconviction evidence enacted in many
states in recent years, it is wise to write the courts' discretionary review
into DNA statutes themselves.
Allow testing for those on parole or probation. While ensuring access to DNA
testing for wrongfully imprisoned is, understandably, most states' first
priority, they should not deny testing to those who seek to clear their names
after release from custody. Indeed, given that all states now have some form of
"Megan's Law" requiring registration for convicted sex offenders, the practical
consequences of wrongful conviction continue long after release - not to mention
the barriers to employment, housing, and child custody that nearly all convicted
felons face. In addition, our experience has shown that those persons who still
seek testing after release from prison are (not surprisingly) likely to be
innocent - indeed, we know of no case where a person on parole or probation has
sought and obtained a DNA test that yielded unfavorable results.
Specify that courts may issue "all appropriate orders" in the course of
considering or ordering DNA testing. This provision may help avoid unnecessary
disputes about related issues - in particular, regarding the release of prior
laboratory test results or other information about the case that may be in the
State's control.
Disseminate results where DNA tests confirm guilt. While the consequences of DNA
"inclusions" are usually covered by other provisions of state and/or federal
law, a number of states have added provisions to their testing law that specify
the consequences which may result when DNA testing supports the original
conviction. Such provisions may help garner broader support for DNA testing
laws, particularly from the law enforcement and victims' rights communities.
These include, among other things, mandating that inculpatory DNA profiles be
included in state and federal DNA databanks; requiring the state to notify
victims of both the application for DNA testing and the results; or providing
notification to the state's parole and clemency boards if the results confirm
guilt.
Include privacy provisions. These provisions may allay the public's concerns
about the uses to which DNA test results are put, especially as applied to
persons other than the applicant (i.e., the victim or victim's family members,
who may need to give a reference sample to isolate the perpetrator's DNA from
their own). California's law, for example, specifically exempts DNA profiles
obtained during testing from the state's freedom of information laws.