Criminal Law Resources: DNA Post-Conviction ResourcesBy Ken Strutin, Published on September 14, 2008
Since DNA profiling was introduced as a forensic tool in the 1980s, advances in this field have begun to motivate legislatures and courts to take actual innocence claims seriously. See, e.g., Letters to Inform 400 Felons Of DNA Evidence Retesting, Washington Post, Aug. 7, 2008, at B4. The majority of states and the federal government have laws on the books that allow some kind of post-conviction testing of genetic material. And in the federal courts a constitutionally based right to access under substantive and procedural due process is emerging. See Advances in DNA-Based Innocence Claims, New York Law Journal, Sept. 9, 2008, at 5, col. 1.
The results of testing genetic material can be exculpatory and support post-conviction relief, such as habeas corpus or clemency. Or they can provide a basis for mitigation or sentence reduction. As DNA technology is refined, the possibilities for reevaluation of early test results or fresh examination of evidence continue to broaden.
This article contains a collection of recent and representative web-based materials concerning DNA technology developments and legal research on the impact of wrongful convictions and DNA exonerations on the justice system.
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These sites contain information on DNA access and testing laws and related post-conviction legislation nationwide.
- Comparison of State Post Conviction DNA Laws (National Conference of State Legislatures)
- Post-Conviction DNA Legislation (DNAResource.com)
- Post-Conviction Statutes (President's DNA Initiative)
- State DNA Access Laws (Innocence Project)
- Survey of Post-Conviction DNA Testing Statutes (American Society of Law, Medicine & Ethics)
National organizations and governmental bodies have developed standards and guidelines for collection and retention of genetic material in criminal cases as well as testing protocols.
- ABA Standards for Criminal Justice: DNA Evidence (3rd ed. 2007)
These standards address such issues as collection, preservation and use of DNA evidence; testing and interpretation of results; pretrial and trial procedures; post-conviction testing (Standard 6.1); and databanking.
- Post-Conviction DNA Issues (Virginia Department of Forensic Science)
"The Division of Forensic Science has developed standards and guidelines for the method of custody, transfer and return of evidence under the above-mentioned code sections [19.2-327.1 Motion by a convicted felon for scientific analysis of newly discovered or previously untested scientific evidence; 19.2-270.4:1 Storage, preservation and retention of human biological evidence in felony cases]. The Division also worked with the Supreme Court of Virginia to develop model court orders that follow these standards and guidelines."
- Postconviction DNA Testing: Recommendations for Handling Requests (National Commission on the Future of DNA Evidence 1999)
"The report is the work of the Working Group on Postconviction Issues, one of five working groups that report to the National Commission on the Future of DNA Evidence. The suggestions are based on the group's consensus on how defense counsel, prosecutors, judicial officers, victims' advocates, and DNA laboratories can respond effectively at the various stages of a postconviction request for DNA testing. Cooperation on the part of law enforcement officials may be crucial; materials needed for testing or retesting may be in their possession".
These reports offer policy recommendations from various perspectives based on research into exonerations and DNA testing.
- 200 Exonerated (Innocence Project 2007)
"The people you will meet in this booklet did not simply endure injustice that nobody else can begin to imagine; they prevailed. Each and every one of them was proven innocent — simply, elegantly and definitively — through DNA testing."
- Access to Post-Conviction DNA Testing (Innocence Project)
This information page provides resources on state access laws, including their limitations and recommendations for improvements.
- Improving Access to Post-Conviction DNA Testing: A Policy Review (The Justice Project 2008)
"The Justice Project offers recommendations and solutions to expand access to post-conviction DNA testing. This policy review provides an overview of problems with current post-conviction DNA testing laws, offers solutions to these problems, profiles cases of injustice, highlights states with good laws and policies for DNA testing, and includes a model policy."
- National District Attorneys Association Policy Position on DNA Technology and the Criminal Justice System (2003).
This is the current statement of NDAA's position on the use of DNA in criminal identification, investigation, prosecution, database collection and assessment of guilt or innocence of suspects in the criminal justice system. See also DNA Evidence Policy Considerations for the Prosecutor (NDAA 2004)
- Post-Conviction DNA Testing Task Force Report (California 2002)
"The non-binding recommendations compiled in this report address the scope of California’s postconviction testing law, its impact on the manner in which evidence is handled and stored, and the length of time for which evidence must be retained. The Task Force’s deliberations and final recommendations were informed by current best practices among California law enforcement for evidence handling and storage."
- Scholarship on post-conviction DNA testing has illuminated problems with the current administration of justice and offers potential solutions to forestall wrongful convictions in the future.
Beyond Biology: Wrongful Convictions in the Post-DNA World, 2008 Utah L. Rev. 1 [Symposium]
"Post-conviction DNA testing first exonerated an innocent prisoner nearly twenty years ago. During this period, we have learned many lessons from the 200 subsequent DNA exonerations, including insight into the factors that led to those wrongful convictions at trial and the procedural obstacles that can make it difficult for inmates whose cases contain biological evidence to procure DNA testing after conviction. Yet, as I have often written in the past, these exonerations are just the tip of the proverbial innocence iceberg. As a threshold matter, very few criminal investigations result in the collection of biological evidence whatsoever; over time, moreover, such evidence often becomes lost, destroyed, or degraded. This signifies that inmates proclaiming their innocence rarely have the benefit of utilizing the tool of DNA testing. In addition, the rate of DNA exonerations is bound to shrink in the future as DNA testing at the front end of the process becomes ubiquitous and thereby reduces the likelihood of miscarriages of justice in prosecutions in which biological evidence is available. Accordingly, the prevention and correction of wrongful convictions in cases lacking biological evidence are issues of critical importance and the focus of this symposium. Specifically, this Symposium represents an opportunity for several prominent scholars to float trial balloons testing theories related to the problem of wrongful convictions in the post-DNA world."
- Claiming Innocence, 92 Minn. L. Rev. 1629 (2008)
"The advent of DNA testing technology almost two decades ago transformed how courts review claims of innocence. Our system discarded many of the rules of finality that traditionally barred most postconviction claims of innocence. In recent years almost every state enacted post-conviction DNA statutes, which I survey here. Yet our criminal system still remains at a crossroads and meritorious claims of innocence continue to face great obstacles. State statutes typically exclude entire categories of convicts who might convincingly prove their innocence and state courts often deny access to DNA testing. Meanwhile, the Supreme Court has yet to adopt a constitutional innocence claim, though advances in technology have upended the Court's reasons for failing to do so in Herrera v. Collins. Further, wrongful convictions will continue to place pressure on our criminal justice system. Using longitudinal analysis of post-conviction DNA exonerations over time, I show that more than a quarter occurred in cases in which DNA testing was available at trial, with causes including technological advances and fraud and error relating to the DNA testing itself. Our criminal justice system still lacks sufficient procedures to ensure full access to evidence of innocence at the time of trial, and then fails to properly assess claims of innocence brought during appeals. Absent those front and back end protections, DNA exonerations may persist for decades to come."
- Judging Innocence, 108 Colum. L. Rev. 55 (2008)
"This empirical study examines for the first time how the criminal justice system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing. The data collected tell the story of this unique group of exonerees, starting with their criminal trials, moving through levels of direct appeals and habeas corpus review, and ending with their eventual exonerations. Beginning with the trials of these exonerees, this study examines the leading types of evidence supporting their wrongful convictions, which were erroneous eyewitness identifications, forensic evidence, informant testimony, and false confessions. Yet our system of criminal appeals and postconviction review poorly addressed factual deficiencies in these trials. Few exonerees brought claims regarding those facts or claims alleging their innocence. For those who did, hardly any claims were granted by courts. Far from recognizing innocence, courts often denied relief by finding errors to be harmless. Criminal appeals and postconviction proceedings brought before these exonerees proved their innocence using DNA testing yielded apparently high numbers of reversals—a 14% reversal rate. However, that reversal rate was indistinguishable from the background reversal rates of comparable rape and murder convictions. Our system may produce high rates of reversible errors during rape and murder trials. Finally, even after DNA testing was available, many exonerees had difficulty securing access to testing and ultimately receiving relief. These findings all demonstrate how our criminal system failed to effectively review unreliable factual evidence, and as a result, misjudged innocence."
- Post-Conviction DNA Testing: The UK's First ‘Exoneration’ Case?, 44(2) Sci Justice. 77 (2004)
"The routine incorporation of forensic DNA profiling into the criminal justice systems of the United Kingdom has been widely promoted as a device for improving the quality of investigative and prosecutorial processes. From its first uses in the 1980s, in cases of serious crime, to the now daily collection, analysis and comparison of genetic samples in the National DNA Database, DNA profiling has become a standard instrument of policing and a powerful evidential resource for prosecutors. However, the use of post-conviction DNA testing has, until recently, been uncommon in the United Kingdom. This paper explores the first case, in England, of the contribution of DNA profiling to a successful appeal against conviction by an imprisoned offender. Analysis of the details of this case is used to emphasize the ways in which novel forms of scientific evidence remain subject to traditional and heterogeneous tests of relevance and credibility."
These articles and annotations provide background on DNA access and testing legislation, requirements for filing post-conviction motions, and case law developments.
- Admissibility of DNA Identification Evidence, 84 A.L.R.4th 313
"This annotation collects and analyzes those cases in which the courts have considered whether, and under what circumstances, evidence based on deoxyribonucleic acid (DNA) identification[FN1] may be admitted in criminal or civil proceedings.[FN2]"
- DNA Evidence as Newly Discovered Evidence Which Will Warrant Grant of New Trial or Other Postconviction Relief in Criminal Case, 125 A.L.R.5th 497
"This annotation collects and summarizes those state and federal cases in which courts have considered whether a new trial or other postconviction relief would be granted in a criminal case based on newly discovered DNA evidence and/or whether DNA testing of particular evidence would be allowed.[FN1]"
- Chp 11 Using Post-Conviction DNA Testing to Attack Your Conviction or Sentence in A Jailhouse Lawyer's Manual (7th ed. 2007)
"As of November 27, 2006, 187 individuals have been exonerated in the United States through post-conviction DNA testing. This is because DNA is uniquely capable of proving innocence in crimes where biological material was left by the perpetrator.2 Many people in prison were convicted before DNA testing was possible, or before it was considered reliable, and so they were not able to present evidence at trial that might have helped prove their innocence. There is a large network of projects whose purpose is to help prisoners recover DNA evidence and secure DNA testing. Because of the complexity of applying for testing, we strongly recommend you contact one of these organizations rather than proceeding pro se. If you do decide to litigate on your own, this Chapter can help you understand some of the legal issues involved in the process. This Chapter explains how you may be able to use DNA testing of physical evidence to challenge your conviction or sentence, and how DNA testing is currently being used within the criminal justice system. Part B of this Chapter discusses some of the ways you can petition to reopen your case on the basis of DNA testing. Part C lists some of the legal organizations that may be able to help you obtain DNA testing."
Training and Education
These web resources provide background and educational materials on DNA science and testing methods.
- DNA Fingerprinting, Genetics and Crime: DNA Testing and the Courtroom (Fathom 2002)
"In this seminar, geneticist and evolutionary biologist Julian Adams of the University of Michigan explains the principles, procedures and issues involved with the use of DNA as a tool in the identification of individuals. The focus of this seminar will be on the use of DNA in criminal trials. The procedures are basically the same for paternity (and even grand-paternity) and criminal cases. However there is one important difference--in paternity cases we must consider the genetic relationship between the mother, child and putative father(s). As we will see, in one criminal/paternity case, failure to consider possible defendants led to serious consequences, and a possible miscarriage of justice."
- DNA Interactive (Cold Spring Harbor Laboratory)
"DNA Interactive is an educational web site resource that celebrates the 50th anniversary of the discovery of the DNA double helix structure."
- DNA Testing: An Introduction For Non-Scientists An Illustrated Explanation (Scientific Testimony Journal 2005)
"The explanation of DNA testing that follows is intended as an introduction to the subject for those who may have limited backgrounds in biological science. While basically accurate, this explanation involves liberal use of illustration and, in some cases, over-simplification. Although intended to be informative, this is brief and incomplete explanation of a complex subject. The author suggests consulting the scientific literature for more rigorous details and alternative views."
- DNA Training (President's DNA Initiative)
"The President's DNA Initiative provides funding, training and assistance to ensure that forensic DNA reaches its full potential to solve crimes, protect the innocent, and identify missing persons."
- Principles of Forensic DNA for Officers of the Court (President's DNA Initiative)
"An interactive, self-paced resource tool to educate and assist prosecutors, defense attorneys, and judges in forensic DNA cases. The course consists of fifteen modules and covers: The biology of DNA, including statistics and population genetics; DNA laboratories, quality assurance in testing, and understanding a laboratory report; Forensic databases; Victim issues; The presentation of DNA evidence at trial; and Post-conviction DNA cases."
- Reference Guide on DNA Evidence from Reference Manual on Scientific Evidence (Federal Judicial Center 2nd ed. 2000)
"This reference guide addresses technical issues that arise in considering the admissibility of and weight to be accorded analyses of DNA, and it identiﬁes legal issues whose resolution requires scientiﬁc information. The goal is to present the essential background information and to provide a framework for resolving the possible disagreements among scientists or technicians who testify as to the results and import of forensic DNA comparisons."
- What Are Some Of The DNA Technologies Used In Forensic Investigations? (Human Genome Project Information)
"Begun formally in 1990, the U.S. Human Genome Project was a 13-year effort coordinated by the U.S. Department of Energy and the National Institutes of Health. The project originally was planned to last 15 years, but rapid technological advances accelerated the completion date to 2003. Project goals were to: identify all the approximately 20,000-25,000 genes in human DNA, determine the sequences of the 3 billion chemical base pairs that make up human DNA, store this information in databases, improve tools for data analysis, transfer related technologies to the private sector, and address the ethical, legal, and social issues (ELSI) that may arise from the project."
- What Every Law Enforcement Office Should Know About DNA Evidence (NIJ 1999)
"With the exception of identical twins, every person's DNA is different—this has made DNA samples one of the most important pieces of evidence from crime scenes. What Every Law Enforcement Officer Should Know About DNA Evidence describes the need for investigators to have fundamental knowledge about identifying, preserving, and collecting DNA to help solve cases. This NIJ brochure also discusses CODIS (Combined DNA Index System), an electronic database of DNA profiles that can identify suspects."
These bibliographies will lead to more in-depth information about post-conviction DNA testing, wrongful conviction and other DNA related issues.
- DNA Databases, Evidence and Post-Conviction Testing Resources (NACDL)
The National Association of Criminal Defense Lawyers has gathered useful information on post-conviction DNA testing including news, reports, and other developments.
- DNA Shall Prevail: Postconviction DNA Evidence: An Annotated Bibliography, Legal Ref. Serv. Q., 2006, no. 1, at 39
"This annotated bibliography is presented as a guide for attorneys, librarians, students, and the general public interested in postconviction DNA evidence. Part I presents a brief introduction to the history and use of postconviction DNA evidence. Part II includes articles about individuals exonerated through the use of post-conviction DNA evidence. Part III presents articles focusing on postconviction DNA evidence in various states. Part IV contains articles about the federal Innocence Protection Act. Part V includes articles about some Innocence Projects in the United States. Part VI includes articles covering various aspects of postconviction DNA evidence. Part VII lists books and chapters of books on the topic."
- Using the Internet in Your DNA Case (Missouri State Public Defender)
Prepared by Cynthia Dryden of the Capital Litigation Unit of the Missouri State Public Defender, this guide describes web resources on the following DNA related topics: I. Criteria To Evaluate DNA Information; II. Sites To Learn More About DNA; III. Technical DNA Information; IV. Mitochondria DNA; V. Y Chromosome DNA Information; VI. DNA Graphics and PowerPoint Slides; VII. Statistical DNA Information; VIII. Glossaries and Dictionaries; IX. Useful Web Links; X. DNA Publications And Books Available on the Web.
- Wrongful Conviction and Innocence Resources on the Internet, LLRX, June 10, 2006
"Many people have been falsely accused and wrongly convicted in our criminal justice system. This bibliography focuses on the key websites and resources concerning this important issue."