Title: Postconviction DNA Testing: Recommendations for Handling
Requests.
Series: Issues and Practices
Author: National Commission on the Future of DNA Evidence
Published: September 1999
Subject: DNA, victims' rights, and restorative justice
118 pages
264,000 bytes

-------------------------------

Figures, charts, forms, and tables are not included in this ASCII plain-text
file. To view this document in its entirety, download the Adobe Acrobat
graphic file available from this Web site or order a print copy from
NCJRS at 800-851-3420 (877-712-9279 for TTY users).

-------------------------------

U.S. Department of Justice
Office of Justice Programs
National Institute of Justice

Postconviction DNA Testing: Recommendations for Handling Requests

A Report from the National Commission on the Future of DNA Evidence

------------------------------

U.S. Department of Justice
Office of Justice Programs
810 Seventh Street N.W.
Washington, DC20531

Janet Reno
Attorney General

Raymond C. Fisher
Associate Attorney General

Laurie Robinson
Assistant Attorney General

Noel Brennan
Deputy Assistant Attorney General

Jeremy Travis
Director, National Institute of Justice

-------------------------------

Office of Justice Programs
World Wide Web Site
http://www.ojp.usdoj.gov

National Institute of Justice
World Wide Web Site
http://www.ojp.usdoj.gov/nij

-------------------------------

Postconviction DNA Testing: Recommendations for Handling Requests

September 1999
NCJ 177626

Jeremy Travis
Director, National Institute of Justice

Christopher Asplen
Executive Director
National Commission on the Future of DNA Evidence

Opinions or points of view expressed are those of the authors and do not
necessarily reflect the official position of the U.S. Department of Justice.

-------------------------------

The National Institute of Justice is a component of the Office of Justice
Programs, which also includes the Bureau of Justice Assistance, Bureau of
Justice Statistics, Office of Juvenile Justice and Delinquency Prevention,
and Office for Victims of Crime.

-------------------------------

Message From the Attorney General

The vigilant search for truth is the hallmark of our criminal justice system.
Our methods of investigation, rules of criminal procedure, and appellate
process are designed to ensure that the guilty are apprehended and
convicted while the innocent are protected. But while ours is a system to
be cherished, it is not a perfect system, and those of us charged with the
administration of justice have a responsibility to seek its continued
improvement. These recommendations acknowledge and accept that
responsibility. They were created because forensic DNA technology can
strengthen our confidence in the judicial process.

In 1996 the National Institute of Justice (NIJ) issued the research report,
Convicted by Juries, Exonerated by Science: Case Studies in the Use of
DNA Evidence to Establish Innocence After Trial. It told the stories of 28
men whose innocence was proven by applying DNA technology to
evidence after they were convicted and sent to prison. They had, however,
served an average of 7 years in prison. Since the publication of that report,
more than 40 other similar cases have been identified.

In response to NIJ's report, I requested that the Institute establish a
National Commission on the Future of DNA Evidence to identify ways to
maximize the value of DNA in our criminal justice system. I commend
the Commission's recognition of the need to address the postconviction
issue immediately and I applaud the vision of a better system that these
recommendations provide. 

The analysis offered by these recommendations applies DNA technology
to the appeals process while recognizing the value of finality in the
criminal justice system. Where DNA can establish actual innocence, the
recommendations encourage the pursuit of truth over the invocation of
appellate time bars. In those cases in which DNA testing may be
determinative of innocence, the recommendations encourage cooperation
between prosecutors, defense attorneys, laboratories, and the judiciary.
Likewise, in those cases in which a DNA exclusion would be of no value
in the determination of actual innocence, the recommendations discourage
the filing of a DNA-based appeal simply because the attorney's client
requests it.

I encourage prosecutors, defense attorneys, the judiciary, victim
advocates, and laboratory personnel to apply these recommendations to
their individual cases. Using DNA technology fairly and judiciously in
postconviction proceedings will help those of us responsible for the
administration of justice do all we can to ensure a fair process and a just
result.

Janet Reno
Attorney General

-------------------------------

National Commission on the Future of DNA Evidence

The National Commission on the Future of DNA Evidence was created in
1998 at the request of Attorney General Janet Reno. When she read about
the use of DNA to exonerate someone wrongfully convicted of rape and
homicide, she became concerned that others might also have been
wrongly convicted. The Attorney General then directed the National
Institute of Justice (NIJ) to identify how often DNA had exonerated
wrongfully convicted defendants. After extensive study, NIJ published the
report Convicted by Juries, Exonerated by Science: Case Studies in the
Use of DNA Evidence to Establish Innocence After Trial, which presents
case studies of 28 inmates for whom DNA analysis was exculpatory.

On learning of the breadth and scope of the issues related to forensic
DNA, the Attorney General asked NIJ to establish the Commission as a
means to examine the future of DNA evidence and how the Justice
Department could encourage its most effective use. The Commission was
appointed by the Director of the National Institute of Justice, Jeremy
Travis, and represents the broad spectrum of the criminal justice system.
Chaired by the Honorable Shirley S. Abrahamson, Chief Justice of the
Wisconsin State Supreme Court, the Commission consists of
representatives from the prosecution, the defense bar, law enforcement,
the scientific community, the medical examiner community, academia,
and victims' rights organizations.

The Commission's charge is to submit recommendations to the Attorney
General that will help ensure more effective use of DNA as a
crimefighting tool and foster its use throughout the entire criminal justice
system. Other focal areas for the Commission's consideration include
crime scene investigation and evidence collection, laboratory funding,
legal issues, and research and development. The Commission's working
groups, consisting of Commissioners and other non-Commission experts,
research and examine various topics and report back to the Commission.
The working group reports are submitted to the full Commission for
approval, amendment, or further discussion and provide the Commission
background for its recommendations to the Attorney General.

By nature of its representative composition and its use of numerous
working groups, the Commission receives valuable input from all areas of
the criminal justice system. The broad scope of that input enables the
Commission to develop recommendations that both maximize the
investigative value of the technology and address the issues raised by the 
application of a powerful technology.

Commission Members

Chair

The Honorable Shirley S. Abrahamson
Chief Justice
Wisconsin Supreme Court

Members

Dwight Adams
Section Chief
Scientific Analysis
Federal Bureau of Investigation

Jan S. Bashinski
Chief
Bureau of Forensic Services
California Department of Justice

George W. Clarke
Deputy District Attorney
San Diego, California

James Crow
Professor
Department of Genetics
University of Wisconsin

Lloyd N. Cutler
Wilmer, Cutler & Pickering
Washington, D.C.

Joseph H. Davis
Former Director
Miami-Dade Medical Examiner Department

Paul B. Ferrara
Director 
Division of Forensic Sciences
Commonwealth of Virginia

Norman Gahn
Assistant District Attorney
Milwaukee County
Wisconsin

Terrance W. Gainer
Executive Assistant Chief 
Metropolitan Police Department
Washington D.C.

Terry G. Hillard
Superintendent of Police
Chicago Police Department

Aaron D. Kennard
Sheriff
Salt Lake County, Utah

Philip Reilly
President and CEO
Shriver Center for Mental Retardation
Harvard University

Ronald S. Reinstein
Associate Presiding Judge
Superior Court of Arizona
Maricopa County

Darrell L. Sanders
Chief of Police
Frankfort, Illinois

Barry C. Scheck
Professor
Cardozo Law School
New York, New York

Kurt L. Schmoke
Mayor
Baltimore, Maryland

Michael Smith
Professor
University of Wisconsin Law School

Jeffrey E. Thoma
Public Defender
Mendocino County, California

Kathryn M. Turman
Acting Director
Office for Victims of Crime
U.S. Department of Justice

William Webster
Milbank, Tweed, Hadley & McCloy
Washington, D.C.

James R. Wooley 
Assistant U.S. Attorney
Cleveland, Ohio

Commission Staff

Christopher H. Asplen, AUSA
Executive Director

Lisa Forman, Ph.D.
Deputy Director

Robin S. Wilson
Executive Assistant

Postconviction Issues Working Group

A convicted individual's continued assertion of innocence is not new to
the criminal justice system and in fact is familiar to appeals courts. The
use of DNA technology may bring to courtroom proceedings a degree of
certitude to which neither the defense nor the prosecution is accustomed.
Typically in an appeal, the possibility that the original verdict will be
overturned is merely suggested.

By contrast, the introduction of DNA evidence after conviction may
definitively prove innocence. Because of the high level of certainty made
possible by DNA technology, the decision to oppose or not oppose a
motion requesting postconviction relief may now be based on a different
foundation of knowledge.

The implications of DNA technology for criminal justice are most evident
in postconviction appeals, both in the use of DNA evidence in specific
cases and in its broader impact on the criminal justice system. The
Commission has examined the use of DNA evidence in previously
adjudicated cases in order to develop recommendations about the
postconviction process and is exploring the effect that DNA technology
may have on the statutes of limitation for filing appeals and charges. The
latter issue arises because DNA samples last indefinitely, beyond the
periods of time permitted for such filings.

Postconviction DNA Testing: Recommendations for Handling Requests
will serve criminal justice system practitioners as guidelines for analyzing
cases in which DNA evidence is presented. These recommendations have
been unanimously approved by the Commission. The guidelines constitute
the scientific ground on which to make fully informed decisions and on
which to develop the legal approaches needed when DNA may determine
the outcome of an appeal. Separate chapters of the guidelines are tailored
to the needs of prosecutors, defense attorneys, the judiciary, forensics
laboratories, and victim advocates.

Working Group Members

Chair

Ronald Reinstein
Associate Presiding Judge
Superior Court of Arizona
Maricopa County

Members

Christopher H. Asplen, AUSA 
Executive Director
National Commission on the Future of DNA Evidence
U.S. Department of Justice

Dennis D. Bauer
Senior Deputy District Attorney
Orange County, California

Margaret Berger
Professor
Brooklyn Law School
New York, New York

Kevin C. Curran
Assistant Federal Public Defender
Eastern District of Missouri

Lisa Forman, Ph.D.
Deputy Director
National Commission on the Future of DNA Evidence
U.S. Department of Justice

Geoffrey C. Hazard, Jr.
Director
American Law Institute
Philadelphia, Pennsylvania

Barbara R. Morgan
Solicitor, 2nd Judical Circuit
South Carolina

Barry C. Scheck
Professor
Cardozo Law School
New York, New York

Jane Siegel 
Winston & Strawn
Chicago, Illinois

Kathryn M. Turman
Acting Director
Office for Victims of Crime
U.S. Department of Justice

Charlotte J. Word
Deputy Laboratory Director
Cellmark Diagnostics
Germantown, Maryland

-------------------------------

Table of Contents

Message From the Attorney General

National Commission on the Future of DNA Evidence

Executive Summary
o Case Categories
o Legal Issues
o Biological Issues
o Recommendations for Prosecutors
o Recommendations for Defense Counsel
o Recommendations for the Judiciary
o Recommendations for Victim Assistance
o Recommendations for Laboratory Personnel
o The Future

Chapter 1. Introduction

o Background
-- DNA Testing
-- The Commission
o A Framework for Analysis
o The Roles of the Participants
-- The Role of Prosecutors
-- The Role of Defense Counsel
-- The Role of Law Enforcement Personnel
-- The Role of the Court
-- The Role of the Victims' Advocate
-- The Role of Laboratory Personnel

Chapter 2. Legal Issues

o Background
o The Impact of DNA Testing
-- Can a Right to Discovery Be Inferred From Statutes Providing for
Postconviction Relief?
-- Is There a Constitutional Right to Testing Under the Brady Doctrine?
-- Is There a Constitutional Right to Demonstrate Actual Innocence 
That Provides a Basis for Access to Testing Through Habeas Corpus 
Review in Federal or State Court?
-- Are There Other Bases on Which Petitioners Can Obtain Access to
Testing?
-- What Kind of a Showing Must the Petitioner Make to be Afforded
Access to Testing?
-- May Consensual Partners Be Required to Provide Elimination Samples?
-- How Do Time Limits in Motions for a New Trial Based Upon Newly 
Discovered Evidence Affect Requests for Postconviction DNA Testing?
-- Is a Petitioner Entitled to Testing in Order to Pursue Executive
Clemency if the Results are Favorable?
-- Is an Indigent Petitioner Entitled to Have the State Pay for
Postconviction DNA Testing?
-- Is an Inmate Whose Conviction is Vacated on the Basis of Favorable 
Postconviction DNA Testing Results Entitled to Compensation?

Chapter 3. Biological Issues 

o DNA
o Types of Samples Suitable for DNA Testing
-- Questioned or Unknown Samples
-- Samples From Unidentified Bodies
-- Reference Samples From Known Individuals
-- Samples to Use When No Conventional Reference Samples Are
Available
-- Reference Samples From Individuals Who Have Been Transfused
-- Use of Samples From Relatives for Testing
-- Determination of Paternity or Maternity of a Child or Fetus
o Storage and Preservation of Samples
o Determination of the Age of the Sample
o Testing of Samples Deposited on Various Substrates
o Determining Which Samples to Test
o Previous Testing: Was It Done? What Do the Tests Mean?
o Location of Samples in Postconviction Cases
o Types of DNA Tests
-- Restriction Fragment Length Polymorphism Testing
-- Polymerase Chain Reaction Testing--Nuclear DNA
-- Polymerase Chain Reaction Testing--Mitochondrial DNA
o Possible Results/Conclusions From DNA Tests
-- Inclusions
-- Exclusions
-- Inconclusive Results
o Databases
o Testing in the Future

Chapter 4. Recommendations for Prosecutors

o Possible Responses to an Application for Postconviction DNA Testing
o Responding to a Request: The First Stage
-- Get Information
-- Initial Relevancy Determination
-- Provide Information
o Information Gathering Stage
-- Preserve Evidence and Information
-- Make Preliminary Evaluation of Availability of Evidence
-- Get Full Information About What Was Done Previously
o Assessing the Viability of the Claim
-- Make a Preliminary Evaluation of the Merit of the Claim
-- Conduct a Thorough Review of the Case File
o Consultation With Defense Counsel
o Interaction With Victims
o Pretesting Considerations
-- Consultation With Experts and Experienced Colleagues
-- Elimination Samples
-- Mixtures
-- Blood Transfusions
-- Decide Whether to Order DNA Analysis Without Challenge
-- Notify the Defense and Victim of Decision
-- Payment
o Procedures After Postconviction Testing Results Have Been Obtained

Chapter 5. Recommendations for Defense Counsel

o Handling Initial Requests
-- Screening
o Information Gathering
o Assessing the Viability of the Claim
o Investigation/Searching for the Evidence
o Consultation With Prosecutors
o Interaction With Victims and Dealing With the Media
o Legal Avenues
o Pretesting Considerations
-- Consultation With Experts and Experienced Colleagues
-- Deciding on a Mutually Agreeable Laboratory and Methods of Testing
-- Elimination Samples
-- Replicate Testing
-- Payment
-- Disclosure of DNA Testing Results
o Establishing a Chain of Custody and Preserving Evidence for Testing
o Procedures After Postconviction Testing Results Have Been Obtained

Chapter 6. Recommendations for the Judiciary

o Handling Initial Requests
o Information Gathering/Searching for Evidence
o Pretesting Stage
o Procedures After Postconviction Testing Results Have Been Obtained

Chapter 7. Recommendations for Victim Assistance

o Initial Notification
o Searching for Evidence/Requesting DNA Samples From Victims and
Third Parties
o Ensuring Privacy of Victims and Survivors
o Assisting Victims After Postconviction Results Have Been Obtained

Chapter 8. Recommendations for Laboratory Personnel

o Handling Initial Requests
o Role of the Expert in the Laboratory
-- Laboratory Previously Involved in the Case
-- Laboratory as a Consultant
-- DNA Testing Laboratory
o Considerations for Selecting a Laboratory for DNA Testing
o Selection of Samples for Testing
o Retention of Samples for Future Testing
o Quality Assurance Standards for Forensic DNA Testing Laboratories
and Technical Working Group on DNA Analysis Methods (TWGDAM)
Guidelines: Validation With Nonprobative Evidence

Glossary

Appendix I. Resources

Appendix II. State Statutes on Notification of Victims

Appendix III. Sample DNA Test Brochure

Appendix IV. Working Group on Postconviction Issues

Index

Case Index

-------------------------------

Executive Summary

In recent years, technological progress in DNA (deoxyribonucleic acid)
testing has made DNA evidence a predominant forensic technique for
identifying criminals when biological tissues are left at a crime scene.
DNA testing on samples such as saliva, skin, blood, hair, or semen not
only helps to convict, but also serves to exonerate.

The sophisticated technology makes it possible to obtain conclusive
results in cases in which previous testing had been inconclusive.
Postconviction testing will be requested not only in cases in which DNA
testing was never done, but also in cases in which the more refined
technology may result in an indisputable answer.

It is hoped this report, Postconviction DNA Testing: Recommendations
for Handling Requests, will help participants through the postconviction
process. 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.

To properly implement the recommendations contained in this report,
participants in postconviction DNA proceedings need to consider the
category of the case in which the DNA testing is sought and whether
participants need to adjust the roles they customarily play in adversarial 
proceedings.

Case Categories

As information is gathered about a case, it may be helpful to evaluate it in
terms of five broad categories, as follows:

Category 1. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing or retesting,
exclusionary results will exonerate the petitioner. In these cases,
prosecutors and defense counsel should concur on the need for DNA
testing.

Category 2. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing or retesting,
exclusionary results would support the petitioner's claim of innocence, but
reasonable persons might disagree as to whether the results are
exonerative. The prosecutor and defense counsel may not agree on
whether an exclusion would amount to an exoneration or would merely
constitute helpful evidence.

Category 3. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing or retesting,
favorable results will be inconclusive. Future developments may cause
such a case to be reassigned to a different category.

Category 4. These are cases in which biological evidence was never
collected, or cannot be found despite all efforts, or was destroyed, or was
preserved in such a way that it cannot be tested. In such a case,
postconviction relief on the basis of DNA testing is not possible.

Category 5. These are cases in which a request for DNA testing is
frivolous. In these cases, prosecutors and defense counsel should generally
agree that no testing is warranted.

When a request for postconviction DNA testing is made, prosecutors
should consider whether expeditious discussions with defense counsel
might resolve the matter promptly. Defense counsel may not be aware of
prior DNA testing that confirmed guilt. In addition, when an inmate is
truly innocent, interests converge, so that prosecutors and defense counsel
may have to modify their usual adversarial postures.

The chapters in this report deal with applicable law, provide an overview
of the applicable science, and contain suggestions on how the various
players can best proceed during the stages of a postconviction proceeding.
Highlights include:

Legal Issues

This document discusses the kinds of legal issues that have already arisen,
and others that will probably develop, as applications for postconviction
DNA testing continue to be made and the technology to conduct those
tests advances.

The advent of DNA testing raises the question of whether a different
balance should be struck regarding the right to postconviction relief. The
probative value of DNA testing has been steadily increasing as
technological advances and growing databases expand the ability to
identify perpetrators and eliminate suspects. The strong presumption that
verdicts are correct, one of the underpinnings of restrictions on
postconviction relief, has been weakened by the growing number of
convictions that have been vacated because of exclusionary
DNA results. 

DNA evidence also has given rise to thorny legal issues, because
postconviction requests for testing do not fit well into existing procedural
schemes or established constitutional doctrine. The typical inmate making
a postconviction DNA request wants the following: discovery of evidence
so that it can be tested, the right to present favorable test results in a
judicial proceeding or in an executive proceeding for clemency, and the
State to pay for the testing. Currently, the law in many jurisdictions is not
clear as to the legal theory that entitles the petitioner to have any of these
requests granted, or what the appropriate procedural mechanisms are for
making these demands.

Because of this present state of legal uncertainty, litigating postconviction
DNA applications often will be unnecessarily complex, expensive, and
time consuming, unless prosecutors, defense counsel, and trial courts work
cooperatively to assess cases, find the evidence, arrange for DNA testing,
and make joint requests for judicial or executive relief when the facts so
warrant after a result favorable to the petitioner. 

Biological Issues

The technology has undergone rapid change that has increased both its
capability to obtain meaningful results from old evidence samples and its
discriminatory capabilities. At first, crime laboratories relied primarily on
restriction fragment length polymorphism (RFLP) testing, a technique that
is very discriminating but requires a comparatively large quantity of good
quality DNA (100,000 or more cells). Most laboratories are now shifting
to using tests based on the polymerase chain reaction (PCR) method, a
kind of molecular copying technique that can generate reliable data from
extremely small amounts of DNA in crime scene samples (50 to 100
cells).

Several basic steps are performed during DNA testing regardless of the
type of test being done. The general procedure includes: 1) the isolation of
the DNA from an evidence sample containing DNA of unknown origin,
and generally at a later time, the isolation of DNA from a sample (e.g.,
blood) from a known individual; 2) the processing of the DNA so that test
results may be obtained; 3) the determination of the DNA test results (or
types), from specific regions of the DNA; and 4) the comparison and
interpretation of the test results from the unknown and known samples to
determine whether the known individual is not the source of the DNA or
is included as a possible source of the DNA.

Any probative biological sample that has been stored dry or frozen,
regardless of age, may be considered for DNA analysis. Types of samples
suitable for DNA testing include:

Questioned or unknown samples collected from the crime scene. These
include liquid blood and bloodstains, liquid saliva and saliva stains, and
liquid semen and dried semen stains deposited on virtually any surface;
genital/vaginal/cervical samples collected on swabs, gauze, or as aspirates;
rectal/anal swabs, penile swabs; pieces of tissue/skin; fingernails; plucked
and shed hairs; and skin cells on drinking vessels or clothing.

Samples from unidentified bodies. These include blood, buccal swabs,
hairs, bone, teeth, fingernails, tissues from internal organs, muscle, and
skin.

Reference samples from known individuals. These include blood,
oral/buccal swabs, and/or plucked hairs.

Samples to use when no conventional reference samples are available.
These include clothing where biological fluids may be deposited, bedding,
fingernail clippings, cigarette butts, toothbrushes, hairs in razors and
hairbrushes, discarded facial tissues or handkerchiefs with nasal
secretions, and condoms.

Information that must be obtained on any previous testing includes:

-- What items of evidence existed at the time of the original trial and
what type of analyses or tests were done on that evidence?

-- What are the limitations of the tests that were performed?

-- Were the results used at trial, and, if they were not used, what was the
reason?

Recommendations for Prosecutors

Requests for postconviction DNA testing may come from a variety of
parties, including inmates, their families, defense attorneys, or police.
When a request for postconviction DNA testing is received,
recommendations for prosecutors include the following:

--Get as much information as possible about the inmate and the case,
including defenses proffered at trial and defenses currently claimed.

--Determine whether the case is suited to DNA testing, depending on the
category of the case. Evaluate previous DNA testing.

--Provide information to the requestor, including the fact that DNA
testing could have a negative effect if the inmate's DNA testing results are
placed in a DNA criminal identification bank and he is identified as a
perpetrator of other crimes.

--Throughout the process, consult and notify victim/witness specialists,
forensic DNA experts, defense counsel, and prosecutors experienced in
DNA technologies and postconviction relief issues.

Recommendations for Defense Counsel

When a request for postconviction DNA testing is received,
recommendations for defense counsel include the following:

--Perform extensive screening to determine if the case is suited to DNA
testing.

--If a case is determined to warrant DNA testing, conduct an extensive
search for evidence, consulting with prosecutors throughout the search.

--Do not contact the victim. It is up to the prosecutor's office, through its
victim services agency, to determine if it is appropriate to inform the
victim of testing.

Recommendations for the Judiciary

Trial courts will likely be involved in category 1 and category 2 cases. By
issuing orders, the court can play an important role in helping obtain
access to evidence prior to testing, which is part of the screening process
and helps determine if DNA evidence will be irrelevant to the case.

In the pretesting stage, it is recommended that the court set an informal
conference with counsel to discuss issues such as the type of DNA
analysis to be used, whether it will be necessary to test the victim's
relatives or third parties, and whether additional samples need to be
obtained from the victim.

Once postconviction DNA test results have been obtained, if the results
are favorable to the inmate and no alternative explanations exist, the court
should be prepared to grant a joint request to vacate the conviction. In the
absence of a joint motion, an evidentiary hearing should be set to
determine if there is a reasonable probability of a change in the verdict or
judgment of conviction.

Recommendations for Victim Assistance

It is extremely important that crime victims and their family members are
provided with information and approached with great sensitivity regarding
postconviction issues. Notification of requests for DNA testing should be
made by the prosecutor through a victim assistance specialist.

Avoid unreasonable and intrusive sample collection. Explain technical
aspects of testing and the significance of the samples request. Ensure that
information about the location of victims and family members remains
confidential.

Provide information about testing results in a timely fashion, in person, if
possible. 

Recommendations for Laboratory Personnel

A DNA testing laboratory may be requested to serve as a consultant to the
attorneys, the defendant, or the judge. The laboratory also has an
obligation to perform quality DNA tests and to interpret and report the
results accurately and without bias.

The laboratory should test only the amount of sample needed to obtain
reliable test results and retain untested samples for possible future testing.

This chapter also discusses choosing a laboratory to perform testing.
When selecting a laboratory for DNA testing, issues officials should
consider include what DNA tests are available in the laboratory, the
laboratory's experience, and whether the laboratory is accredited.

The Future

DNA testing technology is constantly being improved. For example,
convicted offender databases and databases of probative samples from
unsolved crimes are being developed rapidly. These databases will be
especially helpful for linking previously unrelated cases and for screening
a large number of known individuals already convicted of a crime.

The need for postconviction DNA testing will wane over time. Within the
decade, DNA testing with highly discriminatory results will be performed
in all cases in which biological evidence is relevant, and advanced
technologies will become commonplace in all laboratories.

Chapter 1

Introduction

Background

DNA Testing

In little more than a decade, DNA (deoxyribonucleic acid) evidence has
become the foremost forensic technique for identifying perpetrators, and
eliminating suspects, when biological tissues such as saliva, skin, blood,
hair, or semen are left at a crime scene. First introduced into evidence in a
United States court in 1986 and the subject of numerous court challenges
in the ensuing years, DNA evidence is now admitted in all United States
jurisdictions.

Over the years, the technology has undergone rapid change and
refinement that has increased both its capability to obtain meaningful
results from old evidence samples and its discriminatory capabilities. At
first, crime laboratories relied primarily on restriction fragment length
polymorphism (RFLP) testing, a technique that is very discriminating but
requires a comparatively large quantity of good quality DNA. Now,
however, most laboratories are shifting to using tests based on the
polymerase chain reaction (PCR) method, a kind of molecular copying
technique that can generate reliable data from extremely small amounts of
DNA in crime scene samples. Indeed, we are moving into an era where a
PCR-based test using mitochondrial DNA can successfully obtain results
from a shaft of hair or dried bones. (See discussion in chapter 3.) 

Moreover, law enforcement agencies and legislatures have come to
understand the potential of using DNA testing systematically by
constructing DNA databases on a State and Federal level that inventory
DNA profiles from new unsolved cases, old unsolved cases, and convicted
offenders. As these DNA databanks grow in size, society will benefit even
more from the technology's incredible power to link seemingly unrelated
crimes and to identify with alacrity suspects who were until then
completely unknown to investigators. In the United States, to date, DNA
testing is for the most part used in rape and homicide prosecutions. In
Great Britain, DNA evidence is also regularly used to obtain burglary
convictions. As American databanks expand, DNA testing will
undoubtedly be used to solve a broader spectrum of crimes in the United
States as well.

A remarkable feature of DNA testing is that it not only helps to convict
but also serves to exonerate.[1] A 1995 survey of laboratories reported
that DNA testing excluded suspects in about one-fourth to one-fifth of the
cases. (See the National Institute of Justice publication, Convicted by
Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence
to Establish Innocence After Trial (1996)). These suspects were fortunate:
Before the advent of DNA testing they might have been indicted on the
basis of an eyewitness' statement or other evidence and possibly been
convicted on the basis of such proof. Numerous instances of erroneous
imprisonment have come to light through efforts such as the Innocence
Project, which helps convicts obtain postconviction DNA testing. As of
this writing, more than 60 convictions in the United States have been
vacated on the basis of DNA results. Some of the cases are discussed in
the NIJ study cited above. Almost half of the convictions that have been
vacated were set aside after 1996. The technological progress that
occurred in the 1990s now makes it possible to obtain conclusive results in
cases in which previous testing had been inconclusive. Consequently,
postconviction testing will be requested not only in cases in which DNA
testing was never done, but also in cases in which a newer, more sensitive
technology may now be able to furnish a conclusive answer.

The Commission

The documentation of erroneous convictions provided the impetus for
Attorney General Janet Reno to establish a National Commission on the
Future of DNA Evidence. Five working groups that report to the
Commission were organized, and members of the working groups were
appointed by the chair of the Commission, Chief Justice Shirley
Abrahamson of Wisconsin. As shown in the biographies contained in
appendix IV, the members of the Working Group on Postconviction Issues
included two defense counsel and two prosecutors, a judge, a victims'
rights advocate, a scientist, and academics, who have had considerable
experience with various issues relating to the forensic use of DNA.

The Working Group on Postconviction Issues was directed to respond on
an expedited basis in recognition of the need for speed when an innocent
person may be imprisoned. The urgency of the task was compounded by
the uncertainty surrounding many issues relating to postconviction DNA
testing. It is, after all, a scant decade since DNA evidence was first
introduced in a criminal proceeding. Consequently, considerable
confusion exists about numerous questions, ranging from the preservation
of DNA evidence to the applicability of statutes of limitation with regard
to newly discovered evidence. Over time, these issues will have to be
resolved by legislatures and courts in each jurisdiction. In the interim, it is
hoped that the recommendations below will be helpful. The suggestions
are based on the working 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.

These suggestions seek to maximize opportunities for the truly innocent to
obtain redress without forfeiting the legal system's need for finality. For
while we realize that claims of factual innocence must be taken seriously,
and that we cannot tolerate the incarceration of those not guilty, we must
also recognize the desirability of definitive determinations. In an era in
which courts are hard put to handle their current dockets and judicial
budgets are strained, proceedings should be reopened only in the rare
instance when justice so demands. Consequently, State-funded
postconviction DNA testing should be granted only when there is a strong
probability that the results that can be anticipated from DNA testing
would have changed the prior verdict. Furthermore, even aside from
concerns of efficiency and economy, closure is essential for victims and
their families, for witnesses, and for judicial officers and prosecutors.
Finality is a fundamental value that can properly be ignored only in the
extraordinary case. Fortunately, DNA analysis now provides us with the
ability to do justice in the exceptional situation.

The need for postconviction DNA testing will wane over time. Within the
next decade, DNA testing with highly discriminatory results will
undoubtedly be performed in the vast majority of cases in which
biological evidence is relevant. Furthermore, advanced technologies that
are not yet in all laboratories will become commonplace. When that
occurs, requests for postconviction relief that seek DNA testing or
retesting will for the most part cease.

The chapters that follow present information that is pertinent to
postconviction requests for DNA testing. Chapter 2 deals with the
applicable law, chapter 3 provides an overview of the applicable science,
and chapters 4 through 8 contain suggestions on how prosecutors, defense
counsel, judges, victims' rights advocates, and laboratory personnel might
proceed most effectively at various stages of such a postconviction
proceeding. To implement these recommendations properly, participants
in postconviction DNA proceedings need to consider 1) the category of
case in which the DNA testing is sought and 2) whether circumstances
require the participants to adjust the roles they customarily play in
adversarial proceedings.

A Framework for Analysis 

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 in chapter 4 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. Consequently, some techniques that
are discussed in chapter 3 may not be available in a particular laboratory.

Category 1 consists of 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.

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 others, which are assigned to category 2, the
assistance of a judicial officer may be essential to determine whether, and
under what conditions, testing should be conducted.

Category 3 consists of 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.

Unfortunately, in category 4 cases, 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 chapter 4 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.

Experience indicates that category 5 cases exist 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.

The examples that follow of recurring fact patterns illustrative of these
categories are not intended to be exclusive.

Category 1. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing or retesting,
exclusionary results will exonerate the petitioner.

Example 1: Petitioner was convicted of the rape of a sexually inactive
child. Vaginal swabs were taken and preserved. DNA evidence that
excludes the petitioner as the source of the sperm will be dispositive of
innocence. Note that in a case such as this, the victim's DNA--also
obtainable from the vaginal swab--operates as a control that confirms that
the correct sample is being tested. In addition, the victim's age and sexual
status guarantee that the swab contains only biological material related to
the crime.

Example 2: Petitioner was convicted of the rape of a woman who reported
that she was sexually attacked by two men. Vaginal swabs were taken and
preserved. Exoneration of the defendant may depend on whether the DNA
test of sperm on the vaginal swabs shows two male DNA profiles, both of
which exclude petitioner.

Example 3: Petitioner was convicted of the rape of a sexually active
woman who reported that she had engaged in consensual sexual
intercourse within 24 hours of the rape. Vaginal swabs were taken and
preserved. Exoneration of the defendant may depend on whether a DNA
sample from the victim's consensual partner is available.

Example 4: Petitioner was convicted of a homicide. The evidence showed
that the victim, who had been stabbed repeatedly, had resisted fiercely and
that a single perpetrator was involved. There were pools of blood leading
from the crime scene. Standard blood typing of the crime scene
bloodstains showed that some samples were consistent with the blood of
the victim and others were consistent with the blood of the petitioner. The
blood samples were retained. DNA testing that excludes the petitioner as a
source of the bloodstains would be dispositive of his innocence.

Category 2. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing or retesting,
exclusionary results would support the petitioner's claim of innocence, but
reasonable persons might disagree as to whether the results rule out the
possibility of guilt or raise a reasonable doubt about guilt. This category
also includes cases in which, for policy and/or economic reasons, there
may be disagreement as to whether DNA testing should be permitted at all
or, for indigent inmates, at State expense. As the recommendations below
indicate, the decision on whether this is a case for testing may have to be
made by a judicial officer, who may also wish to ensure that defense
counsel is available. These cases may raise difficult policy issues about
how far postconviction relief should reach. Bearing on the decision to test
will be factors such as:

--The other evidence in the case.

--Whether conviction was based on a guilty plea, a no contest plea, or a
trial.

--The availability of DNA testing at the time of trial.

--The type of DNA technology available at the time of trial.

--The petitioner's current status.

Example 5: Petitioner was convicted of a homicide. The prosecution
argued in closing that blood on a shirt found at petitioner's home came
from the victim. Standard blood typing had shown a match between the
sample and the victim's blood. DNA testing that excludes the victim as a
source of the bloodstains might be helpful to petitioner's claims but does
not prove that he was not guilty. How a case such as this should be treated
will depend on the role the bloody shirt played at petitioner's trial and the
strength of the other evidence against him. The prosecutor and defense
counsel may not concur in their evaluations.

Example 6: Petitioner is presently incarcerated for a crime for which
biological evidence is irrelevant. Petitioner had, however, been convicted
of a prior crime in which biological evidence was collected and is still
available. Evidence of petitioner's conviction of that prior crime had been
utilized in connection with the crime for which he is incarcerated. The
conviction may have been used to enhance sentencing; as one of the
strikes in a "three strikes and you're out" jurisdiction; in connection with
impeachment or the threat of impeachment; or as substantive proof, either
as prior crimes evidence, or as evidence that satisfies a rule such as Rule
413 or 414 of the Federal Rules of Evidence, which make admissible in
sexual assault cases evidence that defendant previously committed a
sexual assault. If DNA testing were to exonerate him in connection with
the prior crime, it might be helpful to petitioner.

Example 7: Petitioner has been released from prison after serving time for
a crime in which biological evidence was collected. Petitioner claims that
he cannot get a job because of his criminal record. DNA evidence that
would lead to the expungement of the prior conviction might be helpful to
the petitioner even though he is no longer incarcerated.

Category 3. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing or retesting,
the results will not be relevant to a guilt or innocence determination.

Example 8: Petitioner is presently incarcerated for a gang rape. The victim
testified that seven persons were involved but that she is not sure that all
actually engaged in sexual intercourse. If the vaginal swabs that were
preserved are tested and petitioner's DNA profile is not found, the
significance of the results will be minimal. It should be noted, however,
that if other participants in the rape can be identified through DNA testing
and petitioner can show the unlikelihood that he ever had any contact with
the other participants, this case may fall into category 1 or 2.

Example 9: Biological evidence exists that cannot be analyzed with
current technology.

Category 4. These are cases in which biological evidence was never
collected, or cannot be found despite all efforts, or was destroyed, or was
preserved in such a way that it cannot be tested. In such a case,
postconviction relief on the basis of DNA testing is not possible.

Category 5. These are cases in which a request for DNA testing is
frivolous.

Example 10: DNA testing results will be irrelevant, for instance, when
petitioner testified about a consent defense in a rape case, or a self-defense
claim in a homicide prosecution. If petitioner raised such a defense for
tactical reasons but did not testify, the case may belong in a different
category. A further caveat is that, even if petitioner testified, a judicial
officer may have to rule on claims by petitioner, such as lack of capacity
(insanity or mental retardation), or that the defense was coerced. 

Example 11: The trial transcript discloses the existence of other evidence
that makes petitioner's claim meaningless, as in a burglary conviction
where petitioner was apprehended at the scene of the crime.

The Roles of the Participants

The recommendations in chapter 4 presuppose cooperation and concern
on the part of those who play a part in handling postconviction requests
for DNA testing. These attributes are essential in achieving the goals of
exonerating the innocent while preserving the judicial system's needs for
integrity, finality, and efficiency. When an inmate is truly innocent, or the
facts are such that favorable testing results would create reasonable doubt,
the interests of prosecutors and defense counsel converge so that they may
at some points have to modify their usual adversarial posture and engage
in a joint cooperative venture. The discussion below considers the factors
that affect participants' roles at various stages of postconviction requests
for DNA testing.

The Role of Prosecutors

Prosecutors understand that DNA testing can demonstrate actual
innocence in a category 1 case. As officers of justice, prosecutors have an
interest not only in exonerating the wrongly accused, but in bringing the
guilty to justice. A groundless conviction means that the real perpetrator is
probably still at large. DNA testing assists law enforcement because it
may identify the true culprit in the case being challenged, clear up
unsolved crimes, and prevent future criminal acts.

Consequently, some prosecutors may opt not to take a traditional
adversarial stance when their office receives a request for postconviction
DNA testing. Their response will be affected by the category of case, their
familiarity with DNA testing, and the resources of their office. (See
chapter 4, Recommendations for Prosecutors.) Prosecutors who are
knowledgeable about DNA testing and have ready access to laboratory
facilities and expertise may feel comfortable initiating DNA testing
themselves instead of waiting for defense counsel to take the laboring oar.
On the other hand, a prosecutor who has had no previous experience with
DNA and/or has inadequate technical assistance may respond to requests
for DNA testing by seeking assistance from the legal community and/or
scientists with DNA testing expertise, or by making appropriate referrals
to defense counsel or to projects that handle actual innocence claims.

Even the prosecutor who basically treats requests for DNA testing like all
other applications seeking postconviction relief should adopt a cooperative
attitude with regard to certain matters or truly innocent persons will be
unable to substantiate their claims. Except in the case of patently frivolous
category 5 claims, use the following as a guide:

--Prosecutors should not delay responding to a request for DNA testing.
Immediate action may be required because the statute of limitations may
bar future proceedings. (See discussion in chapter 2.)

--Once a request for DNA testing is made, prosecutors should take
affirmative steps to prevent the destruction of potentially relevant
evidence (e.g., material from the crime scene or standards from victims or
third parties) that may or may not have been tested. Immediate action may
be needed when there is a policy authorizing the routine destruction of
evidence.

--Prosecutors should use their best efforts to locate the crime scene
samples. The prosecutor who handled the case originally may be the only
person who knows where they are.

Furthermore, prosecutors should consider at the outset whether
expeditious discussions with defense counsel might not resolve the matter
promptly. Defense counsel may be unaware of prior DNA testing that
confirmed guilt. The evidence may not have been introduced at the
original trial because restrictions on the admissibility of DNA evidence
existed at the time, or because the abundance of other evidence convinced
the prosecution that DNA evidence would be superfluous and needlessly
expensive.

Defense counsel may be raising an issue about prior DNA testing that
could be resolved if the prosecutor showed defense counsel underlying
laboratory notebooks or other materials that the jurisdiction does not
ordinarily disclose. In such instances, prompt disclosure will ultimately
save time and money.

The Role of Defense Counsel

Defense counsel should appreciate that convictions are rarely reopened
and that a noncontentious attitude may expedite the location of needed
biological samples and accelerate the testing process that is an innocent
client's best hope for relief.

On the other hand, defense counsel must also recognize and inform their
clients that truth may have a price and that inculpatory results will have to
be disclosed to the prosecution. Convicted felons are not entitled to testing
without risking the consequences of false claims of innocence.

The Role of Law Enforcement Personnel

Cooperation on the part of law enforcement officials may be crucial;
materials needed for testing or retesting may be in their possession.
Consequently, they can assist in:

--Finding the evidence that was sent to the laboratory for testing.

--Identifying and locating other evidence that is now testable.

--Preserving the evidence.

The Role of the Court

Judges may feel compelled to take a proactive stance to protect the inmate
seeking relief if the prosecution and defense are refusing to cooperate. A
court may be especially likely to exercise its discretion in the interests of
justice in a potential category 1 case, particularly if the court fears that the
passage of time may make it impossible to ascertain the validity of a claim
of actual innocence.

The judge's assistance may be sought in connection with such matters as
locating and preserving evidence, obtaining discovery from laboratories,
and compelling third parties to provide samples for elimination testing.
(See chapter 6, Recommendations for the Judiciary.)

The court might also consider whether to exercise its discretion to appoint
an expert to assist the court in a case that presents disputed, complex,
technical issues relating to DNA testing or interpretation.

The Role of the Victims' Advocate

The role of the victims' advocate in postconviction proceedings is
essential and complex. The advocate's usual role is to provide support,
which will likely be needed during a postconviction proceeding as it may
be extremely traumatic for surviving victims and their families to learn
that a person found guilty is now attempting to vacate the conviction. The
early involvement of victims' advocates lessens the chance of victims and
their families making this discovery through the media and ensures that
they are kept informed and treated with appropriate concern and respect.

In category 1 cases, advocates may also have to prepare their clients for
the possibility that the inmate will be exonerated. If this occurs, advocates
face the difficult task of providing support for the person whose
misidentification of the culprit may have been the chief evidence leading 
to the original guilty verdict.

Advocates will at times be called upon to persuade a victim to agree to
DNA testing even though the victim is convinced of the accuracy of the
identification he or she made at the inmate's trial. For exclusionary
purposes, samples may also have to be tested from persons who were
engaged in sexual relations with the victim at the relevant time. Victims
may be reluctant to provide names or to urge these persons to cooperate.
In order to expedite postconviction proceedings, victims' advocates must
make victims appreciate the desirability of cooperating because DNA
testing may lead to the apprehension of the person who was truly guilty
and prevent future criminal acts.

The Role of Laboratory Personnel

The public or private laboratory skilled in DNA testing can assist in the
postconviction process in a number of ways, including:

--Agreeing to conduct some pro bono testing at the request of a judicial
officer, prosecutor, defense counsel, or project.

--Making its personnel available to assist participants in a postconviction
proceeding who lack adequate technical expertise.

-------------------------------

In 1986, in the first known use of DNA testing to solve a criminal
identification, Colin Pitchfork's DNA was matched by multilocus RFLP
testing to the DNA from semen from two rape/homicides in Narborough,
England. Before Pitchfork was identified, a 17-year-old mentally
challenged mental hospital kitchen porter, who had confessed to one of
the murders, was released after 31/2 months in custody when the DNA
results showed the same person raped both girls and eliminated the
kitchen porter as the source of the semen. Although homicide detectives
originally thought the DNA evidence contradicting the confession was
"bloody outrageous," the kitchen porter was released based on the work of
the same people who had put him in custody. 

[Details of the investigation, identification, and prosecution of Pitchfork
are presented in the novel, The Blooding, by former Los Angeles Police
Officer Joseph Wambaugh, Perigold Press, 1989.]

-------------------------------

Chapter 2

Legal Issues

Background 

An understanding of the novel legal issues posed by postconviction
requests for DNA testing requires an appreciation of the traditional legal
approach to postconviction relief that predated the forensic use of DNA
typing. The judicial system provided two principal avenues of relief for a
convicted defendant who had exhausted the process of appeal. The inmate
could seek: 1) a new trial if the conviction rested on an error of fact
contradicted by newly discovered evidence, or 2) a writ of habeas corpus
in State or Federal court (after efforts to obtain relief in State court had
been exhausted). In addition, it was conceded that the limited
circumstances in which postconviction relief was available might cause
some cases in which guilt was erroneously determined to fall between the
cracks. In such a case, an inmate could still seek executive clemency as a
means of correcting a miscarriage of justice.

Under common law, the window during which relief could be sought on
the grounds of newly discovered evidence was extremely narrow, limited
to the term of the court in which the judgment of conviction was entered.
Most States have since expanded the applicable time bars, but at this time
only 15 States permit new trial motions based on newly discovered
evidence to be made more than 3 years after conviction. This restrictive
approach rests on:

--The strong presumption that the verdict is correct because the accused
was found guilty by a jury of peers after a trial conducted with full
constitutional protections.

--The need for finality. (See discussion in chapter 1.)

--The recognition that the likelihood of more accurate determinations of
guilt or innocence diminishes over time as memories fade, witnesses
disappear, and the opportunity for perjury increases.

--The need to conserve judicial resources by not opening the floodgates
to meritless and costly claims.

Federal habeas jurisprudence traditionally assumed that relief could not be
grounded on an erroneous finding of guilt unless a constitutional error had
occurred at the defendant's trial. This conclusion--that proof of actual
innocence does not alone suffice to set aside a prior conviction--views the
States as responsible for correcting faulty adjudications unaccompanied by
a constitutional violation. It was justified by the assumption, mentioned
above, that questions of guilt or innocence become more uncertain with
the passage of time, so that accurate determinations are considerably less
likely at a new trial. 

The Impact of DNA Testing

The advent of DNA testing raises the question of whether a different
balance ought to be struck regarding the right to postconviction relief. The
results of DNA testing do not become weaker over time in the manner of
testimonial proof. To the contrary, the probative value of DNA testing has
been steadily increasing as technological advances and growing databases
amplify the ability to identify perpetrators and eliminate suspects. (See
chapter 3.) We already have seen cases in which an exclusionary DNA test
can prove actual innocence. (See example 1 in chapter 1.) In other cases,
DNA results may raise a reasonable doubt about guilt. The strong
presumption that verdicts are correct, one of the underpinnings of
restrictions on postconviction relief, has been weakened by the growing
number of convictions that have been vacated because of exclusionary
DNA results. On the other hand, the need for finality and the conservation
of judicial resources remain important concerns, and there are numerous
types of cases in which the results of DNA testing would be debatable or
inconclusive. (See A Framework for Analysis in chapter 1.) To date,
however, only in New York and Illinois have State legislatures
restructured the right to postconviction relief now that the possibility
exists in some cases that more accurate and definitive adjudications can be
achieved than at the original trial.[2]

In addition to challenging the assumptions that support the structure of
postconviction relief, DNA evidence also has given rise to thorny legal
issues because postconviction requests for testing do not fit well into
existing procedural schemes or established constitutional doctrine. As an
initial matter, postconviction procedures in both State and Federal court
assume petitioners already have, in hand, new evidence that they claim
proves innocence; postconviction DNA cases, however, invariably begin
with applications to find and test evidence that is, and has been, in the
control of the prosecution since the time of the original trial. The typical
inmate making a postconviction DNA request wants: 1) discovery of the
evidence so that it can be tested, 2) the right to present favorable test
results in a judicial proceeding or in an executive proceeding for
clemency, and 3) the State to pay for the testing. At this point in time, the
law in many jurisdictions is not clear as to the legal theory that entitles the
petitioner to have any of these requests granted, or what the appropriate
procedural mechanisms are for making these demands. Frequently, these
issues are intertwined, and petitioners make omnibus motions in which
they raise all potentially relevant grounds for relief together.

Because of this present state of legal uncertainty, litigating postconviction
DNA applications often will be unnecessarily complex, expensive, and
time consuming, unless prosecutors, defense counsel, and trial courts work
cooperatively to assess cases, find the evidence, arrange for DNA testing,
and make joint requests for judicial or executive relief when the facts so
warrant after a result favorable to the petitioner. That is why the
recommendations in this report are designed to suggest how
postconviction DNA applications can be handled expeditiously, ethically,
flexibly, and lawfully by all parties, in any jurisdiction, with little or no
need for judicial intervention.[3]

The purpose of this chapter is to identify the kinds of legal issues that
have already arisen, and others that will probably develop, as applications
for postconviction DNA testing continue to be made and the DNA
technology available to conduct those tests advances. No attempt has been
made to set forth in full the law of any particular jurisdiction.

Can a Right to Discovery Be Inferred From Statutes Providing for
Postconviction Relief?

Courts do not agree on whether a request for DNA testing in a
postconviction proceeding implies a right to discovery even if the statute
is silent about such a right. Compare People v. Callace, 573 N.Y.S.2d 137,
138 (Suffolk County Ct. 1991) (finding discovery right pursuant to statute
authorizing vacation of convictions on the basis of newly discovered
evidence; decision predates statute discussed in note 2) and Jenkins v.
Scully, No. CIV-91-298E, 1992 WL 32342, at *1 (W.D.N.Y. Feb. 11,
1992) (State ordered to produce evidence for DNA testing pursuant to
rules governing habeas corpus), with Ohio v. Wogenstahl, No. C-970238,
1998 WL 306561, at *1 (Ohio Ct. App. Dist. 1 June 12, 1988) (request for
DNA retesting because trial results were inconclusive is in the nature of a
discovery request that the court is not required to grant in a postconviction
proceeding).

Is There a Constitutional Right to Testing Under the Brady Doctrine? 

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that a
defendant has a constitutional right at or before trial to be informed of
exculpatory evidence in the hands of the State. A number of courts have
extended Brady to requests for DNA testing even when the request is
made after trial and although it is potentially exculpatory evidence that is
being sought. In Arizona v. Youngblood, 488 U.S. 51 (1988), petitioner
claimed that his conviction should be vacated because the State before
trial had destroyed rectal swabs containing sperm which could have
demonstrated his innocence if subjected to serological testing. Although
the Supreme Court found that the conviction would not be overturned
without proof that the swabs were destroyed in bad faith, nothing in the
opinion suggests that petitioner would not have been entitled to testing if
the swabs now existed.

These Supreme Court decisions provide an avenue for access to testing
even when no formal discovery procedures exist as part of the
postconviction statutory scheme in that jurisdiction. But see Wogenstahl,
1998 WL 306561, at *2-*3 (not Brady violation to refuse request for
testing). While the weight of reported cases acknowledges a right of
access to the evidence for purposes of DNA testing on Brady grounds,
there are many unreported, summary decisions in which trial courts have
simply dismissed applications for postconviction testing without reaching
any Brady-based constitutional arguments.

An early case applying Brady is Matter of Dabbs v. Vergari, 570
N.Y.S.2d 765 (Sup. Ct. Westchester County 1990), in which an inmate
requested access to perform DNA testing as a prelude to a possible motion
to vacate the conviction based on newly discovered evidence. The
prosecution opposed the motion on the grounds that no statutory right to
the requested postconviction discovery then existed in New York; that the
results of proposed testing were speculative; and that granting the
petitioner's request would prompt other convicted sex offenders to demand
DNA testing. The Dabbs court, relying on Brady, supported its decision to
allow the requested testing as follows:

--[A] defendant has a constitutional right to be informed of exculpatory
information known to the State . . ..

--A corollary to the duty of disclosure is the duty to preserve exculpatory
material . . ..

--Courts have dismissed indictments after convictions because of
destruction or loss of evidence by the police when that police conduct has
deprived a defendant of material of high exculpatory potential . . ..

--[W]hile it is unclear what such testing will ultimately reveal,
[defendant] has demonstrated an adequate foundation for the testing by
showing that the victim's panties, a gauze pad, and rape tests slides have
high exculpatory potential.

Dabbs, 570 N.Y.S.2d at 767-68 (citations omitted). DNA testing
ultimately exonerated Dabbs and his conviction was vacated. See People
v. Dabbs, 587 N.Y.S.2d 90, 93 (N.Y. Sup. Ct. 1991).

In State v. Thomas, 586 A.2d 250 (1991), the court rejected lateness
arguments from the prosecution and held that DNA evidence is such a
potentially powerful tool to demonstrate actual innocence that even the
most unyielding procedural bars must give way: 

Under these circumstances, consideration of fundamental fairness
demands that the [DNA] testing of this now 7-year-old rape kit material
be done now . . .. Our system fails every time an innocent person is
convicted, no matter how meticulously the procedural requirements
governing criminal trials are followed. That failure is even more tragic
when an innocent person is sentenced to a prison term . . .. We regard it as
. . . important to rectify that failure . . .. There is a possibility, if not a
probability, that DNA testing now can put to rest the question of
defendant's guilt . . .. We would rather [permit the testing] than sit by
while a [possibly] innocent man . . . "languishes in prison while the true
offender stalks his next victim." 

Thomas, 586 A.2d at 253-54 (citations omitted).

Other cases embracing a Brady analysis are: Sewell v. State, 592 N.E.2d
705, 707-708 (Ind. Ct. App. Dist. 3 1992) (inmate allowed access to rape
kit for DNA testing 10 years after conviction notwithstanding the absence
of discovery procedures; "Advances in technology may yield potential for
exculpation where none previously existed. The primary goals of the court
when confronted with a request for the use of a particular discovery
device are the facilitation of the administration of justice and the
promotion of the orderly ascertainment of truth."); Commonwealth v.
Brison, 618 A.2d 420, 423 (Pa. Super. Ct. 1992) ("where evidence has
been preserved, which has high exculpatory potential, that evidence
should be discoverable after conviction"); Mebane v. State, 902 P.2d 494,
497 (Kan. Ct. App. 1995) (requests for DNA testing can be granted under
Brady when proper showing made).

Is There a Constitutional Right to Demonstrate Actual Innocence That
Provides a Basis for Access to Testing Through Habeas Corpus Review in
Federal or State Court?

In Herrera v. Collins, 506 U.S. 390 (1993) the Supreme Court addressed
the question of whether it would violate the 14th Amendment's due
process clause or the Eighth Amendment's prohibition against cruel and
unusual punishment to execute an inmate who claimed he could prove,
through newly discovered evidence proffered in a Federal habeas petition,
that he was "actually innocent." Herrera had to present his newly
discovered evidence in a Federal habeas petition because he was time
barred from pursuing the claim in the Texas State courts.

In a plurality opinion, the Supreme Court rejected Herrera's habeas
petition on the grounds that his factual showing was insufficient, but
strongly suggested that it would violate the Constitution to punish
someone who could make a "truly persuasive" showing of actual
innocence.[4] See Herrera, 506 U.S. at 417 (plurality opinion of Chief
Justice Rehnquist). See also 506 U.S. at 427 (O'Connor, J., concurring).
Justice White, in a concurring opinion, and Justice Blackmun, writing for
Justices Souter and Stevens in a dissenting opinion, set somewhat lower
thresholds: According to Justice White, relief should be granted when, in
light of the newly discovered evidence, "no rational trier of fact could
[find] proof beyond a reasonable doubt." 506 U.S., at 429 (citation
omitted); and Justice Blackmun concluded "that, to obtain relief on a
claim of actual innocence, the petitioner must show that he probably is
innocent." 506 U.S. at 442.

The discussion in Herrera about "actual innocence" is quite hypothetical.
Justices Scalia and Thomas expressed doubt that the Court would ever
again have to confront this issue, "since it is improbable that evidence of
innocence as convincing as today's opinion requires would fail to produce
an executive pardon." 506 U.S. at 428. Several justices pointed to the
evidential infirmities that occur over time as making it unlikely that a
petitioner could make the requisite showing. This assumption was
certainly reasonable under the facts of Herrera, which vividly illustrate
why courts fear stale post-trial claims of innocence.[5]

Now, however, in some cases the possibility of demonstrating actual
innocence has moved from the realm of theory to the actual with the
availability of postconviction DNA testing. (See examples in chapter 1.)
The opinions in Herrera may, therefore, provide a reasonable basis for an
inmate who cannot obtain relief in State court to seek Federal habeas
relief, even though, as noted in Herrera, it had long been the rule that
newly discovered evidence claims do not state a ground for Federal
habeas relief absent an independent constitutional violation occurring in
the underlying State criminal proceeding.[6] Herrera, 506 U.S. at 399.
Indeed, Federal courts have been quite willing to order DNA testing to
supplement independent constitutional claims. See, e.g., Toney v.
Gammon, 79 F.3d 693, 700 (8th Cir. 1996); Jones v. Wood, 114 F.3d
1002, 1009 (9th Cir. 1997); Jenkins, 1992 WL 32342, at *1.

Are There Other Bases on Which Petitioners Can Obtain Access to
Testing?

Freedom of Information Act (FOIA) statutes in many States are very
broad and frequently permit access to "tangible" objects that might
embrace the kind of biological evidence needed for postconviction DNA
testing. Inmates seeking access to evidence have been pursuing State
FOIA claims as separate actions or in conjunction with other
postconviction motions. These FOIA requests specify that DNA testing
will not be performed on the evidence, without court approval, unless the
samples can be divided to permit replicate testing. There are no reported
decisions to date on such FOIA requests.

The Innocence Project also has claimed a right of access to testing under
section 1983 of the Civil Rights Act on the ground that courts act under
the color of State law when they refuse access to testing. As of this
writing, there are no reported decisions that discuss this theory.

What Kind of a Showing Must the Petitioner Make to be Afforded Access
to Testing?

A petitioner who is proceeding pursuant to a newly discovered evidence
motion must meet the standard set forth in the governing statute. The
precise formulation differs from jurisdiction to jurisdiction. In New York,
the newly discovered evidence must be "of such a character as to create a
probability that had such evidence been received at trial the verdict would
have been more favorable to the defendant[.]" NY Crim. Pro. section
440.10 (1)(g) (McKinney 1994). Other States say the newly discovered
evidence should provide "conclusive proof" that there would have been a
different verdict. See Wilkes, State Postconviction Remedies and Relief,
section 1-13, at 31-32 (1996 ed.), section 1-13, at 30-32. Some States use,
either as the exclusive ground for relief or as an additional, "catch-all"
provision, a general "interests of justice" standard as suggested by section
(1)(a)(5) of the 1980 Uniform Post-Conviction Procedure Act, "evidence,
not previously presented or heard, exists requiring vacation of the
conviction or sentence in the interest of justice." See Wilkes, supra, app.
B, at 905. 

Courts that afford access to testing via Brady motions, (see discussion
supra), also require some showing by the petitioner that in light of the
evidence introduced at trial DNA testing could somehow have affected the
outcome. The reported cases report a variety of tests and conditions.

Clearly the courts perform the kind of analysis suggested in A Framework
for Analysis in chapter 1 in determining whether access to testing is
warranted. See, e.g., People v. Gholston, 697 N.E.2d 375, 379, (Ill. App.
Ct. 1998) (refusing testing where multiple defendants participated in the
sexual assault, one or more of whom may have ejaculated, and there was
no evidence that defendant ejaculated; defendant had confessed to being at
the scene); Mebane, 902 P.2d at 497 (will only allow testing if case
involved a single perpetrator and trial evidence was weak); Thomas, 586
A.2d at 254 ("when the State's proofs are weak, when the record supports
at least a reasonable doubt of guilt, and when there exists a way to
establish guilt once and for all . . ."). 

The concurring and dissenting opinions in Herrera discuss various
standards that might be required for showing "actual innocence." (See
discussion supra.)

May Consensual Partners Be Required to Provide Elimination Samples?

On occasion, when an application for postconviction DNA testing is
made, the prosecution opposes relief by taking a different factual position
on the biological evidence than it did at trial. Most frequently, it claims in
rape cases that no DNA testing needs be performed when the eyewitness
identification is strong; the sperm on vaginal swabs or underwear,
attributed to the defendant at trial, may have come from a prior consensual
partner of the victim; and the defendant may have failed to ejaculate.
While this argument has succeeded in some unreported cases, published
decisions reject this position as a reason not to do initial testing that could
exclude an inmate, or, once an inmate has been excluded, to deny a new
trial without conducting a test that shows the prior consensual partner is,
in fact, the source. See, e.g., Commonwealth v. Reese, 633 A.2d at 206,
209-10 (Pa. Super. Ct. 1995). 

Our recommendation is that "elimination" samples from third parties may
be needed in such a case but that they normally should not be sought until
after an exclusion has been obtained from DNA testing. This is advisable
both to minimize stress for victims and third parties, as well as to create a
stronger legal basis for obtaining the "elimination" samples once it
becomes necessary to do so. 

In fact, elimination samples from third parties have routinely been
obtained at the request of prosecutors, courts, and governors in more than
a third of the postconviction DNA exonerations to date. The samples have
generally been gathered on a voluntary basis, although in more than a few
instances judges have made it clear to prosecutors that, in light of the
DNA exclusion, the inmate's judgment would be vacated if the third-party
samples were not produced. And as previously noted, in one reported
decision, Commonwealth v. Reese, 663 A.2d at 209-10, the trial court
made it clear that the potential need for third-party elimination samples
was not, in and of itself, a basis not to permit access to evidence and
potentially exculpatory DNA testing. Otherwise, we have not identified
any reported cases that directly deal with a third party contesting the
taking of an elimination sample in the context of postconviction DNA
exclusion. 

In a number of reported paternity cases, courts have compelled third-party
relatives to submit to DNA testing for the purpose of establishing
paternity.[7] Similarly, the U.S. Supreme Court has upheld the issuance of
grand jury subpoenas, based upon a showing of relevancy to the
investigation, not probable cause, to obtain "nontestimonial" evidence[8]
such as voice exemplars from third parties for "elimination" purposes. See
United States v. Dionisio, 410 U.S. 1, 5-7 (1973).

How Do Time Limits in Motions for a New Trial Based Upon Newly 
Discovered Evidence Affect Requests for Postconviction DNA Testing?

All States provide some type of statutory scheme, common law authority,
or court rule for postconviction relief based upon "newly discovered
evidence of innocence." "Newly discovered evidence" is generally
construed to mean evidence that was not available at the time of trial, or
evidence that counsel could not obtain with the exercise of due diligence.

Among the States, time limits on motions for a new trial based on newly
discovered evidence of innocence vary considerably.[9] While some
States impose no time limits or make them waivable, a substantial number
require the motion to be made within 60 days after judgment. Another
sizeable group of States calls for motions to be made within 1 to 3 years.
Rule 33 of the Federal Rules of Criminal Procedure has a 2-year time
limitation for new trial motions based upon newly discovered evidence.
These statutes can impose substantial barriers to gaining access to DNA
postconviction testing or to being allowed to introduce favorable results.

Even when a postconviction motion based on newly discovered evidence
would lie, prosecutors still have successfully defeated the motion in some
cases by using a laches argument. In Ziegler v. State, 654 So. 2d 1162
(Fla. 1995), although the Florida Supreme Court recognized that Florida's
2-year statute of limitations would not bar Ziegler from obtaining a
particular kind of DNA test that had not been available at the time of his
conviction (1976), the court nonetheless denied his 1994 application
because the DNA test Ziegler wanted to perform became "available" in
1991 and Ziegler, who had a postconviction motion pending on other
grounds in 1991, did not seek the DNA test within the 2-year time limit.
The Florida Supreme Court also found that the DNA test Ziegler was
seeking would not produce sufficient exculpatory evidence to vacate the
conviction even if the results were favorable to Ziegler. Ziegler, 654 So.
2d at 1164. The "laches" theory enunciated in Ziegler has recently been
followed, although criticized in a dissent, by a lower Florida appellate
court considering the DNA request of an indigent inmate who filed 2
years after the test was arguably "available" but whose conviction would
probably be vacated if the test results were favorable. See Dedge v. State,
723 So. 2d 322, 324 (Fla. Dist. 5 Ct. App. 1998). One can expect further
litigation in Florida, and in any other jurisdiction adopting the laches
theory enunciated in Ziegler, about when new types of forensic DNA
testing first became "available" as a scientific matter, and when, as a
practical matter, such testing was truly "available" to indigent defendants. 

It is important to note, however, that in addition to providing for new trial
motions based on newly discovered evidence, many States have their own
habeas statutes, court rules, and/or "interests of justice" case law that
permit courts to extend or override time bars on newly discovered
evidence motions. For example, in Mississippi there is explicit statutory
authority to grant an untimely new trial motion "in the interest of justice"
where the prisoner can produce evidence "not reasonably discoverable at
the time of trial, which is of such nature that it would be practically
conclusive that had such been introduced at trial it would have caused a
different result in the conviction or sentence." Miss. Code. Ann. section
99-39-23 (1998).

Texas, in contrast, has "catch-all" rules that implicitly permit courts to
override time bars to post-trial, newly discovered evidence motions. See
Tuffiash v. State, 878 S.W.2d 197, 198 (Tex. Crim. App. 1994) (out of
time post-trial motion to vacate conviction based upon newly discovered
evidence granted because "[i]n an appropriate case, for good cause shown,
Rules 2(b) and 80(c) of the Texas Rules of Appellate Procedure allow this
court to suspend requirements and provisions of any rule in a particular
case on application of a party or on our own motion and may order
proceedings in accordance with our direction" (citation omitted)).[10] 

Even without statutes that explicitly authorize exceptions to time-barred
applications, courts have, in the interests of justice, vacated convictions
and released inmates when newly discovered DNA evidence demonstrates
innocence and the prosecution joins in the motion.[11] The Supreme
Court of South Dakota recently turned aside the prosecutor's timeliness
objection and authorized access to vaginal swabs for postconviction
testing, Davi v. Joseph Class, Warden, unpublished decision, case No.
19844, Order of Remand (S.D. 1998), although the Court did not issue a
written opinion on the subject. See also Jenner v. Dooley, No. 204-28,
1999 WL 105032 at *8, *9 (S.D. Feb. 10, 1999) (setting out guidelines for
when postconviction scientific analysis may be authorized.

Finally, it has been suggested that in the State courts petitioners with
strong newly discovered evidence should consider making constitutional
arguments based on Herrera as a direct challenge to the constitutionality
of State statutes of limitations that would bar "actual innocence" claims.
See Vivian Berger, Herrera v. Collins: The Gateway of Innocence for
Death-Sentenced Prisoners Leads Nowhere, 35 Wm. & Mary L. Rev. 943,
1012-15 (1994); Holmes v. Honorable Court of Appeals for the Third
District, 885 S.W.2d 389, 397-98 (Tex. Crim. App. 1994) (en banc)
(habeas corpus appropriate vehicle for raising factual innocence claim).

Is a Petitioner Entitled to Testing in Order to Pursue Executive Clemency
if the Results are Favorable?

Notwithstanding the narrow opening it arguably opened in Herrera for
Federal habeas "actual innocence" claims, the Supreme Court stressed that
executive clemency "is deeply rooted in our Anglo-American tradition of
law, and is the historic remedy for preventing miscarriages of justice
where the judicial process has been exhausted." 506 U.S. at 411-12.
Clemency is supposed to act as a "fail safe" mechanism, a protection
against the "unalterable fact that our judicial system, like the human
beings who administer it, is fallible." Id., at 415. In fact, executive
clemency has been a mechanism for obtaining postconviction DNA
exonerations, particularly in Virginia, where newly discovered evidence
motions are time barred 21 days after final judgment. Significantly,
however, most of the Virginia proceedings that culminated in executive
clemency began in court with successful requests for access to court
exhibits containing critical biological evidence that was ultimately
subjected to DNA testing. See NIJ Report, supra, note 3 at 57, 72.

Because clemency is "an act of grace" by the executive branch, not a right
(see Herrera, 506 U.S. at 413), the issuance of a grant is highly
discretionary. Some governors work with formal advisory boards, some
do not, and the standards of review governors employ are usually
informal, if not unabashedly susceptible to political considerations. See
Berger, supra, at 966-67; Bandes, supra note 6, at 520-21. As a result, the
Supreme Court has been extremely reluctant to examine, much less
question, the fairness or operation of State executive clemency systems.
See Ohio Adult Parole Authority v. Woodward, 523 U.S. 272 (1998);
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981). 

Moreover, it must be remembered that the vast majority of clemency
decisions turn on forgiveness for an act committed, extraordinary
rehabilitation, or other considerations that do not involve reevaluation of
the guilt or innocence decision. Consequently, in the wake of Herrera,
commentators studying executive clemency have identified statutory
limitations, lack of money, investigatory powers, and/or expertise and
have expressed serious doubt as to whether State clemency systems are
doing an adequate job of assessing claims of actual innocence and
wrongful conviction. See Victoria Palacios, Faith in Fantasy: The
Supreme Court's Reliance on Commutation to Ensure Justice in Death
Penalty Cases, 49 Vand. L. Rev. 311, 369-72 (1996); Henry Pietrkowski,
The Diffusion of Due Process in Capital Cases of Actual Innocence After
Herrera, 70 Chi.-Kent L. Rev. 1391, 1401-13 (1995). Therefore, inmates
who have not yet obtained exculpatory postconviction DNA evidence
should be wary about seeking access to the relevant biological case
material or permission to conduct DNA tests from officials within the
executive clemency system.

Another unresolved issue is whether Herrera supports a due process
"access" argument for an inmate who is precluded from presenting newly
discovered DNA evidence of innocence in a State court but seeks, in the
alternative, DNA testing to pursue executive clemency. The reasoning of
the Herrera decision, with its emphasis on executive clemency as the
historic safety valve and remedy for those who cannot get newly
discovered evidence of innocence heard by the courts, suggests that States
should not be able to both shut the courthouse door with a time bar and
arbitrarily obstruct an inmate's opportunity to enter the executive
clemency system armed with exculpatory DNA test results. To buttress
this argument, inmates should be prepared to show the State will not be
prejudiced in any ongoing cases by the testing, and that they will pay the
costs of testing, as well as any reasonable administrative expenses that
arise in the handling of the evidence. Again, mindful of the Supreme
Court's recent ruling in Ohio Adult Parole Authority v. Woodward, 523
U.S. 272 (1998), this argument should not be cast as a challenge to the
fairness or procedures of a State's executive clemency system, but rather
as the fair exercise of judicial power to obstruct or permit access to case
evidence in the possession of the court or other criminal justice agencies.

Is an Indigent Petitioner Entitled to Have the State Pay for Postconviction
DNA Testing?

The special New York and Illinois postconviction DNA statutes[12]
require the State to pay for testing if the petitioner is indigent and there is
a reasonable basis to believe that postconviction DNA testing could
produce substantial evidence of innocence. There are no reported
decisions as of this date mandating that indigent petitioners receive funds
for postconviction DNA testing that could establish innocence. It is,
however, our experience that once a court decides that postconviction
DNA testing should be performed, or the prosecution and defense agree
that testing is appropriate, funds for testing have been provided either by
the court (just as it funds pretrial expert fees for an indigent defendant), by
the public defender's office, or by the prosecution. Increasingly, as State
and local crime laboratories develop the capacity to do DNA testing,
postconviction DNA testing is simply referred by all parties to the public
laboratory, which does it "free." Nonetheless, concern that the
"floodgates" would be opened, and the public treasury depleted, by
demands for postconviction DNA testing has been cited informally and
formally as a factor in judicial and prosecutorial rejection of requests for
postconviction DNA testing even in the category 1 and category 2 cases
discussed in chapter 1. Payment for postconviction DNA testing by
indigent petitioners is, therefore, likely to emerge as a significant issue for
litigation. A related question is whether an indigent petitioner is entitled to
funds for an expert needed to interpret the testing results.

Two Supreme Court cases bear on the payment issue. In Ake v.
Oklahoma, 470 U.S. 68, 83 (1985) the Court held that an indigent
defendant had a due process right to the services of a psychiatric expert
when the expert's testimony would be "a significant factor in [the]
defense." When expert assistance to an indigent provides "a reasonable
chance of success," the Court reasoned, "the potential accuracy of the
jury's determination is so dramatically enhanced" that "the State's interest
in its fisc must yield." Id. Petitioners who can show that they have a
"reasonable chance of success" to prove innocence through postconviction
DNA testing, a technology that "dramatically enhances" the accuracy of
factfinding, even decades after a verdict, will obviously find useful
language in Ake. Nevertheless, there is a significant legal difference
between a request to fund relevant DNA testing in a pretrial posture--
where it is surely constitutionally required--and a post-trial application
after the petitioner has been found guilty.

A second case, Little v. Streater, 452 U.S. 1 (1981), has relevance to the
payment issue because it recognizes the constitutional significance of a
technological advance that can definitively alter fact determinations. In
Streater, the Court held that an indigent Connecticut inmate who was
being sued in a paternity action had a right, under the due process and
equal protection clauses, to funding for blood grouping tests because
"[u]nlike other evidence that may be susceptible to varying interpretation
or disparagement, blood test results, if obtained under proper conditions
by qualified experts, are difficult to refute." 452 U.S. at 14. "Thus," the
Court emphasized, "access to blood grouping tests for indigent defendants
such as appellant would help to insure the correctness of paternity
decisions in Connecticut." Plainly, the kind of conclusive results DNA
testing can generate in a criminal case are directly analogous to blood
group paternity tests, but a postconviction application for DNA testing,
cutting against the State's interest in preserving the "finality of
judgments," is still a more difficult constitutional posture than the 
pretrial, "quasi-criminal" paternity testing request made in Streater. 

Is an Inmate Whose Conviction is Vacated on the Basis of Favorable 
Postconviction DNA Testing Results Entitled to Compensation?

A survey of statutes that compensate persons wrongly imprisoned
concludes that compensation statutes exist in only 14 States and the
District of Columbia. Most of these statutes have low yearly caps, as well
as total caps, and States pay few claims. See Michael Higgins, Tough
Luck for this Man, 85 A.B.A.J. 46 (1999).

-------------------------------

Chapter 3

Biological Issues

DNA

DNA is the abbreviation for deoxyribonucleic acid, which is the genetic
material present in the nucleus of cells in all living organisms. DNA has
been called the "blueprint of life," since it contains all of the information
required to make an organism grow and develop. It encodes all of the
information that gives each of us our physical characteristics and allows
us to function and be recognized as human. The majority of the DNA is
identical from one human to another, but there are locations in the DNA
that have been found to differ from one individual to another, with the
exception of identical twins. These are the regions of DNA that are
analyzed and used to compare the DNA obtained from an unknown
evidence sample to the DNA of a known individual in DNA identification
testing. Because each individual inherited half of his or her DNA from
each parent, DNA testing can be used to determine if individuals are
genetically related to each other. DNA is found in all cells with a nucleus
and is the same throughout the body, so virtually every fluid or tissue
from a human contains some DNA and can be analyzed by DNA
identification testing. DNA also is stable and does not change over time,
so samples collected years ago may be compared to samples collected
recently.

When DNA testing is done, several basic steps are performed regardless
of the type of test. The general procedure includes: 1) the isolation of the
DNA from an evidence sample containing DNA of unknown origin and,
generally at a later time, the isolation of DNA from a sample (e.g., blood)
from a known individual; 2) the processing of the DNA so that test results
may be obtained; 3) the determination of the DNA test results (or types),
from specific regions of the DNA; and 4) the comparison and
interpretation of the test results from the unknown and known samples to
determine whether the known individual is excluded as (is not) the source
of the DNA or is included as a possible source of the DNA (see further
discussion below).

Each additional test at a previously untested locus (location or site) in the
DNA provides another opportunity for the result of "exclusion" if the
known individual being used for comparison is not the source of the DNA
from an evidence sample of unknown origin. If, however, the known
individual is the source of the DNA on the evidence sample, additional
testing will continue only to include that individual as a possible source of
the DNA. When a sufficient number of tests have been performed in
which an individual cannot be excluded as the source of the DNA by any
of the tests, a point is reached at which the tests have excluded virtually
the world's population and the unique identification of that individual as
the source of the DNA has been achieved.

Types of Samples Suitable for DNA Testing

Questioned or Unknown Samples

Questioned or unknown samples collected from the crime scene can be
any biological sample including: liquid blood or bloodstains, liquid saliva
or saliva stains, and liquid semen or dried semen stains (including from
vasectomized males) deposited on virtually any surface;
genital/vaginal/cervical samples collected on swabs or gauze, or as
aspirates; rectal/anal swabs; penile swabs; pieces of tissue/skin;
fingernails; plucked and shed hairs (e.g., head, pubic, body); skin cells on
drinking vessels, clothing (e.g., neck collars, waistbands, hat linings);
slides containing tissue, semen, etc.; and liquid urine.

Samples From Unidentified Bodies

Samples collected from unidentified bodies can include: blood, buccal
swabs, hairs, bone, teeth, fingernails, tissues from internal organs
(including brain), muscle, and skin.

Reference Samples From Known Individuals

The most common reference samples collected from known individuals
are blood, oral/buccal swabs, and/or plucked hairs (e.g., head, pubic).

Samples to Use When No Conventional Reference Samples Are Available

Other samples that may be considered when individuals are unavailable or
are reluctant to provide samples include clothing where biological fluids
may be deposited (e.g., women's panty crotches or blood-, saliva-, or
semen-stained items) and other clothing in close contact with the body
where skin cells may have rubbed off (e.g., collars, waistbands, hats),
bedding (with vaginal/semen stains or rubbed off skin cells), fingernail
clippings, cigarette butts, toothbrushes, hairs in razors and hairbrushes,
discarded facial tissues or handkerchiefs with nasal secretions, condoms,
gum, feminine products, pathology paraffin blocks or slides from previous
surgery or from autopsy, and teeth.

Reference Samples From Individuals Who Have Been Transfused

If an individual has received transfusions shortly before the collection of a
blood sample (e.g., homicide victim), the DNA test results may indicate
the presence of DNA from two or more sources. Generally the
predominant DNA types reflect the types from the individual. However,
other sources of reference samples for individuals who have received
transfusions may need to be collected. These would include: blood-stained
clothing or other material (bedding, etc.) and oral, vaginal, and other
swabs in addition to the items listed above.

Use of Samples From Relatives for Testing

Because a child inherits half of its DNA from each parent, it is possible to
use reference samples collected from close relatives (e.g., biological
father, mother, and/or full siblings or the individual's spouse and their
children) to identify or confirm the identity of bodies that have not been
identified through other means. It is also possible to use reference samples
collected from close relatives for comparison to crime scene samples, for
example, in missing body cases where a bloodstain or tissue sample from
a possible crime scene can be tested to demonstrate a biological
relationship to known individuals.

Determination of Paternity or Maternity of a Child or Fetus

Aborted fetal tissue can be analyzed for determining paternity, for
example, in sexual assault and/or incest cases where conception occurred.
Paternity and/or maternity of a child can be confirmed using blood or
other samples listed above from the child and the alleged parent(s).

Storage and Preservation of Samples

Any probative biological sample that has been stored dry or frozen,
regardless of age, may be considered for DNA analysis. Nuclear DNA
from blood and semen stains more than 20 years old has been analyzed
successfully using polymerase chain reaction (PCR). Samples that have
been stored wet for an extended period of time should be considered for
testing only using PCR and may be unsuitable for DNA analysis.
Mitochondrial DNA analysis has been performed on very old bones, teeth,
and hair samples.

Samples generally considered unsuitable for testing with current
techniques include embalmed bodies (with the possible exception of bone
or plucked hairs), pathology or fetal tissue samples that have been
immersed in formaldehyde or formalin for more than a few hours (with
the notable exception of pathology paraffin blocks and slides (see above)),
and urine stains. Other samples such as feces, fecal stains, and vomit can
potentially be tested, but are not routinely accepted by most laboratories
for testing.

Determination of the Age of the Sample

It is not possible to determine the age of a biological sample or the time of
deposition of the sample by DNA analysis, with the notable exception of
sperm detected on vaginal/cervical swabs or in vaginal aspirates. Although
sperm may be present, generally, sufficient sperm to obtain DNA test
results cannot be collected from the vaginal cavity of a living female more
than 24 to 48 hours after deposition. Several factors may affect the ability
to obtain DNA test results from sperm collected from a deceased
individual, such as the extent to which the individual engaged in physical
activity after the sperm was deposited, the time of death in relation to the
deposition of the sperm, and the decomposition of the body.

Testing of Samples Deposited on Various Substrates

DNA test results can be obtained from biological samples deposited on a
wide range of substrates (e.g., many types of cloth/fabric found in
clothing, bedding, car upholstery, etc. and carpet, glass, tile, wood, plastic,
metal, vinyl, wallboard, and latex (gloves, condoms)). Substrates that may
be problematic are leather, dirt, or any dirty substrate (e.g., carpet, shoes, 
car upholstery) and vegetable matter (e.g, leaves).

Determining Which Samples to Test

Care should be taken in selecting samples for testing that will give
meaningful/useful results for a particular case. There is no point in testing
samples that have no relevance to the crime for which an individual was
convicted. (See discussion of category 5 cases in chapter 1.)

It may be important to reevaluate/analyze previously collected evidence
samples to determine if there are: 1) other relevant evidence samples that
could be tested (e.g., slides made from vaginal or cervical swabs, if no
vaginal swab remains for testing); 2) samples containing stains or other
biological samples that had not been detected previously; or 3) samples
that were unsuitable for testing with previous techniques but may give
conclusive results with currently available DNA tests (e.g., very small
blood or semen stains, hair shafts).

The availability of and need for samples from known individuals who
should be tested for exclusionary purposes will need to be carefully
considered. For example, in sexual assault cases in which the defendant is
excluded as a donor of the DNA, it is imperative that a sample from the
victim and any known consensual partner(s) be tested in order for that
exclusionary result to provide exculpatory evidence. Additionally, the
testing of the victim's sample in sexual assault cases can serve as a built-in
control to confirm that the testing has been performed correctly and that
the questioned sample is, in fact, linked to that victim.

It is advisable that samples be split whenever possible. This permits a
portion of the sample to be available for: 

--Retesting by opposing counsel. 

--Retesting if there is a problem in the testing and it needs to be repeated.

--Additional testing for aiding in the interpretation of test results (e.g.,
mixtures), for providing more tests for exclusionary purposes, or for
aiding in the identification of the true perpetrator when the convicted
individual is excluded in postconviction testing.

--Future testing when new technologies become available.

For additional discussion, see the Selection of Samples for Testing section
in chapter 8, Recommendations for Laboratory Personnel.

Previous Testing: Was It Done? What Do the Tests Mean?

To aid in the evaluation of a case and to assess the need and feasibility of
doing DNA tests in postconviction cases, it is imperative that the
following information be obtained regarding any previous testing that was
done:

--What items of evidence existed at the time of the original trial and
what type of analyses or tests were done on that evidence? This would
include any microscopic or serological analysis (e.g., identification of
sperm; detection of semen, saliva, or human blood; hair comparison; ABO
blood typing; typing of other protein markers) as well as any DNA tests.
This information should be obtained regardless of whether the results
were used in the trial and regardless of whether the evidence still exists for
retesting. This information may aid in determining whether to proceed
with DNA testing in a postconviction relief case or categorize the case as
one in which DNA testing would be meaningless (e.g., no biological
sample exists on the evidence or sufficient conclusive restriction fragment
length polymorphism (RFLP) results exist). This information also may aid
in the identification of additional evidence and in locating the evidence for
testing.

--What are the limitations of the tests that were performed? It is
important to understand what the previous test results really mean and
whether those results could have been obtained if another individual other
than the alleged donor was the source of the sample. For instance, ABO
blood testing and/or DQa. PCR test results alone are not sufficiently
discriminating such that a falsely accused individual would necessarily be
excluded with these tests; additional DNA testing may be suggested in
these cases. Conversely, if a multiple-probe RFLP match was obtained
previously, additional testing may not be advised unless there is a strong
indication of an error in the testing.

--Were the results used at trial and, if they were not used, what was the
reason? If the test results were used at the trial, it is important to
understand how the results were used in the case and whether they were
accurately presented to the trier-of-fact. Test results may not have been
presented at the trial because they were obtained at a late date, or because
they were inconclusive or not supportive for either the prosecution or
defense position. Alternatively, test results may not have been presented at
the trial because the prosecution reasoned that the other evidence in the
case was overwhelming and chose not to admit the evidence. There are
many cases in this country where four- or five-probe RFLP results have
been obtained but not used at a trial for various reasons (e.g., the attorney
did not want to go through an admissibility hearing, a witness was not
available, or the results were obtained too late to provide in discovery).

--Were there any test results reported to be inconclusive and, if so, what
were the reasons for the inconclusive results? The changes in expertise
and technology available for forensic DNA testing may require the
reexamination of previously inconclusive test results and/or retesting of
the samples. Due to the technical limitations of various tests and the
variation in expertise of scientists, some laboratories take a more
"conservative" approach than others when reporting test results and report
a result as inconclusive when other experts may report the result as an
inclusion or exclusion. This has been especially true for DNA test results
when a mixture of DNA from two or more individuals has been obtained.
No results or inconclusive results (because only weak or partial results
were obtained) may have been reported for a sample that might yield
conclusive results if other tests are attempted. For example, samples that
yielded no or uninterpretable results with RFLP testing may well yield
interpretable results with nuclear PCR testing. Similarly, samples that
were unsuitable for nuclear PCR testing may yield results with
mitochondrial DNA testing. 

In older cases appropriate evidentiary samples or standards may not have
been available or recognized as relevant and/or were unsuitable for testing
with DNA tests available at that time. Reevaluation of collected evidence
samples may lead to the identification of other relevant biological samples
that had been previously undetected, or previously tested items that may
give conclusive results with current techniques. Additional testing with
newer, more sensitive, and more discriminating tests (e.g., short tandem
repeats (STRs), Y chromosome) may help resolve previously inconclusive
test results where the evidence sample and the known standards from the
victim and suspect all gave the same test results, or evidentiary samples 
previously yielded no DNA foreign to the victim (e.g., vaginal swab,
breast swab, fingernail clippings). Identification and testing with current
techniques of other or newly discovered evidence samples, standards, or
relatives of the victim may lead to conclusive results.

--Are copies of the laboratory case notes, including any original
photographs taken and films of any DNA test results, available for review
by an expert? In many of the situations listed above, it will be necessary
for an expert to review the data previously obtained by a laboratory in
order for that expert to advise an attorney regarding the need for retesting
and/or the types of tests to request.

It is recommended that one or both attorneys, and/or the court, seek the
advice of an expert who can provide information regarding the issues and
questions raised above. The expert may need to obtain copies of the
previous test results and laboratory case notes for review in order to
adequately advise the attorney/court. Whenever possible the appropriate
attorney should obtain the needed materials and provide them to opposing
counsel as requested. If additional testing is to be performed in a
postconviction case, it may be important to consider what comparisons
will need to be made with already existing results (e.g., for third-party
individuals, for comparison with database records, for comparison with
other cases). Also see chapter 8 for additional information. 

Location of Samples in Postconviction Cases

Samples for testing in postconviction cases may be found in a variety of
places. Places and persons to consider include:

--Police department evidence or property rooms. Evidence is often found
here if the evidence was never tested or it was sent to the State crime
laboratory, which then returned it.

--Prosecutor's office. Evidence is often found here when it has been
introduced at trial.

--State and local crime laboratories often will retain slides or other
pieces of evidence after conducting testing. Laboratories usually will
return to the police department the clothing and vaginal swabs that are
introduced as exhibits at trial.

--Hospitals, pathology departments, medical examiners' offices, clinics,
or doctors' offices where sexual assault kits are prepared.

--Defense investigators.

--Courthouse property/evidence rooms.

--Offices of defense counsel in jurisdictions that require parties to
preserve exhibits produced at trial.

--Independent crime laboratories.

--Clerks of court.

--Court reporters.

Types of DNA Tests

Restriction Fragment Length Polymorphism Testing

The use of RFLP testing in human DNA identification was pioneered by
Professor Sir Alec Jeffreys and first reported in 1985.[13] Since then,
RFLP testing has been widely used by public and private crime
laboratories and paternity testing laboratories throughout the United States
and the world for determination of paternity (and other biological
relationships) and for the exclusion or inclusion of individuals as the
source of a biological sample. RFLP testing has been widely used and
accepted in the courts and there are currently approximately 300 appellate
rulings regarding RFLP testing in the United States. RFLP testing has
been used in postconviction relief cases and has resulted in a number of
exonerations.[14]

RFLP testing generally requires that a sample contain DNA that is not
degraded (broken into smaller fragments), from 100,000 or more cells
(e.g., a dime-sized or larger saturated bloodstain). Because of these
sample requirements, many small samples collected from crime scenes are
not suitable for RFLP testing (but see PCR testing below, which requires
10 to 1,000 times less DNA than RFLP testing). The procedure for RFLP
testing requires that DNA isolated from a biological sample be specifically
cut into smaller fragments using a protein called a restriction enzyme. The
restriction enzymes most commonly used for RFLP testing of forensic
samples have been HaeIII, HinfI, and PstI. The DNA fragments are then
separated based on their relative length, and the DNA fragment size
variations among different individuals are determined using DNA probes
(e.g., MS1, YNH24, MS621, TBQ7) specific for discrete locations in the
human genome (e.g., DIS7, D2S44, D5S110, D10S28, respectively).
These results are generally visualized as a series of bands on films. The
relative position and number of the bands obtained from an evidentiary
sample are compared to those obtained from known individuals for the
determination of exclusion or inclusion. For a further discussion on the
RFLP testing process, please refer to the 1992 National Research Council
report.[15] RFLP testing has a high degree of discrimination such that
falsely accused individuals will likely be excluded with testing at only one
or a few regions of the DNA (loci). Generally, close biological relatives
can be easily differentiated with testing at a few loci.

Polymerase Chain Reaction Testing--Nuclear DNA

PCR testing of nuclear DNA was developed by Dr. Kary Mullis at Cetus
Corporation in 1984 and has rapidly become the most widely used
technique in the field of molecular biology. First applied to DNA
identification testing in a criminal case in the United States in 1986,[16]
PCR testing has been used widely by crime laboratories (both public and
private) in the United States and throughout the world since the early to
middle 1990s. PCR testing has been widely used and accepted in the
courts and there are currently more than 80 appellate rulings regarding
PCR testing in the United States. PCR testing has been used in
postconviction relief cases and has resulted in a number of
exonerations.[17]

PCR testing of nuclear DNA as it is commonly used in forensic testing
laboratories may be done on a wide variety of samples that are quite
small, containing 50 to 100 cells or more (e.g., visible dot of blood, a
single hair root). PCR is the test method of choice for samples that contain
DNA that is degraded (e.g., pathology specimens, samples that have been
improperly stored or are aged). The PCR test process consists of three
basic steps: 1) the preparation of DNA in a sample for testing, 2) the
amplification (or copying) of specific regions of the DNA using an
enzyme called Taq polymerase, and 3) the analysis or readout of the test
results.

Several different PCR-based test systems have been developed and are in
common use for forensic DNA testing. The AmpliType [registered
trademark] HLA Dqa Forensic PCR Amplification and Typing Kit has
been used since the early 1990s and provides results in the form of blue
dots on a white background for one location in the DNA. As with
serological tests, an exclusion with this test eliminates an individual as the
source of the sample; however, an inclusion with this test simply includes
an individual within a set of a large number of individuals that also have
the same DNA types. A falsely accused individual may be included as a
possible donor of a DNA sample with this test system; additional tests
would need to be done to achieve an exclusion for a falsely accused
individual. The AmpliType [registered trademark] PM PCR
Amplification and Typing Kit allows for the typing of five regions of the
DNA (LDLR, GYPA, HBGG, D7S8, and GC) in a format similar to the
DQa test kit. The DQa and PM kits are now combined into one kit called
the AmpliType [registered trademark] PM + DQA1 PCR Amplification
and Typing Kit, which allows for the amplification and typing of the six
regions of the DNA. The use of the PCR with STR sequences and larger
variable number tandem repeat (VNTR) sequences (such as in the
AmpFLP D1S80 PCR Amplification Kit) has become common in many
laboratories. With these test systems, the results are generally visualized
as bands on films or multicolored peaks on a graph. Amplification by
PCR of a small portion of the amelogenin region of the X and Y sex
chromosomes allows the gender of the donor to be determined.

In the near future, DNA testing at a number of STR locations will likely
replace RFLP and earlier PCR-based tests in most laboratories throughout
the United States and the world. The Federal Bureau of Investigation
(FBI) has recently established the 13 core STR sequences that will be used
in the Combined DNA Index System (CODIS) database of convicted
offenders.

PCR testing has a high degree of discrimination such that falsely accused
individuals may be excluded with only one or a few test results, depending
on the type of test system used.

Polymerase Chain Reaction Testing--Mitochondrial DNA

DNA contained in the mitochondria (an organelle involved in producing
energy) of cells can be isolated and the sequence of the DNA bases can be
determined. Mitochondrial DNA testing is generally performed on
samples that are unsuitable for RFLP or PCR testing of nuclear DNA,
such as dried bones or teeth, hair shafts, or any other samples that contain
very little or highly degraded nuclear DNA. Mitochondrial DNA testing
of forensic samples is increasing in the United States and throughout the
world; at this time testing is available only in a limited number of
laboratories. Mitochondrial DNA test results have been presented in court
in a number of cases.

Mitochondria and their DNA are passed from a mother to her offspring.
For comparison purposes, samples may be collected from any relative in
the maternal lineage. For mitochondrial testing, the PCR is used to copy
specific sequences in the hyper variable regions of the mitochondrial
DNA. The DNA sequence is obtained from the mitochondrial DNA from
the unknown sample and compared with the DNA sequence from a known
individual. Mitochondrial DNA testing can be used to link a sample to a
particular family.

Possible Results/Conclusions From DNA Tests

Inclusions

When the results obtained from the standard sample from a known
individual are all consistent with or are all present in the results from the
unknown crime scene sample, then the results are considered an inclusion
or nonexclusion. The term "match" is also commonly used when the test
results are consistent with the results from a known individual. That
individual is included (cannot be excluded) as a possible source of the
DNA found in the sample. Often, statistical frequencies regarding the
rarity of the particular set of genetic information observed in the unknown
evidence sample and for a known individual are provided for various
population groups.

It is possible for a falsely accused individual to be included as a source of
a sample, particularly if the test system used only tests at one or a few loci
(e.g., the DQa). In this situation, additional testing at more loci should be
performed with the remaining evidence and/or DNA.

In some cases where inclusions are reported, the results are not
meaningful or are inconclusive for that particular case from a legal
perspective. Situations where this might apply are when the results
obtained are all consistent with the individual from whom the samples
were collected (e.g., victim's results only on vaginal swabs taken from the
victim, defendant's results only on a bloodstain on defendant's clothing).

Exclusions

When the results obtained from the standard sample from a known
individual are not all present in the results from the unknown crime scene
sample, the results are considered an exclusion, a nonmatch, or
noninclusion. With limited exceptions, an exclusion of an individual at
any one genetic region eliminates that individual as a source of the DNA
found in the sample. (See Previous Testing, above.)

In some cases where an exclusion is reported, it may be necessary to do
additional testing for that exclusion to be meaningful to the case or to
provide evidence for exoneration. A situation where this might apply is
when the defendant is excluded as a donor of the DNA in a sexual assault
case, but no samples are available from the victim and/or consensual
partners. (See Determining Which Samples to Test, above.)

Inconclusive Results

Results may be interpreted as inconclusive for several reasons. These
include situations where no results or only partial results are obtained
from the sample due to the limited amount of suitable human DNA or
where results are obtained from an unknown crime scene sample but there
are no samples from known individuals available for comparison. In the
latter case, the results would be suitable for comparison once an
appropriate sample for comparison is tested.

Databases

RFLP-based and PCR-based databases have been constructed and are
continuing to be expanded in many laboratories throughout the United
States and the world with samples from convicted sex offenders and
convicted felons, as well as samples from unsolved crimes. These
databases will be especially helpful for linking previously unrelated cases
and for screening a large number of known individuals already convicted
of a crime to newly tested crime scene samples.

DNA databases of mitochondrial sequences are being established that are
currently being used for statistical purposes. It is possible that databases
containing mitochondrial sequences may be constructed for comparison to
crime scene samples in the future.

Testing in the Future

Testing of hair shafts using mitochondrial DNA sequencing likely will
become more widely available in the immediate future. It may be possible
to isolate and test DNA from other samples that are not routinely tested
today (e.g., fingerprints).

Y-specific probes are sequences of DNA found only on the Y (or male)
chromosome. Development and validation of these probes are in progress.
These probes will be especially useful for mixed samples in which the
female component is not relevant or may make interpretation of the results
more difficult (e.g., sexual assault samples, fingernails from female
victims when the assailant is male) and in the analysis and determination
of the number of male sources of DNA in samples where there are
multiple male contributors (e.g., multiple assailants and/or consensual
partners in sexual assault samples). Because Y chromosomes are inherited
through the male lineage, Y-specific probe results may be used to link a
crime scene sample to a particular family.

DNA probes useful for identification testing are being developed from
many other organisms and may be useful in crime scene investigation.
There are reported cases in which DNA from cat hair[18] and from a
particular type of plant has been used to link individuals to a particular
crime scene.

Progress is being made in developing technologies for miniaturization of
DNA tests (e.g., microchip analysis) that may be applied to forensic
testing in the future. Expansion of existing technologies (e.g., sequencing
of nuclear DNA) may emerge for forensic testing. Other as yet unknown
or undeveloped technologies may be forthcoming that could be applied to
forensic testing. It is likely that future tests could increase the sensitivity
and speed of testing, as well as increase the discrimination capability of a
test to unique identification of an individual.

-------------------------------

Chapter 4

Recommendations for Prosecutors

Possible Responses to an Application for Postconviction DNA Testing

Requests for postconviction DNA testing may come from a variety of
parties, including inmates, their families, defense attorneys, police, or
other persons such as members of the judiciary or elected officials who
have been contacted for assistance. When a prosecutor receives a request
for postconviction DNA testing, the prosecutor may have several choices
on how to proceed:

--Take no action until a formal motion or application is received.

--Advise the person making the request to retain defense counsel.

--Refer the person making the request to an organization that assists
inmates with regard to postconviction DNA testing. (See Resources,
appendix I).

--Refer the matter to a specialized unit in the prosecutor's office that
handles postconviction matters.

--Begin an investigation following the steps suggested below.

The prosecutor's choice of option will be governed by many factors, such
as:

--Whether statutory or case law dictates procedures that must be
followed.

--The organization of the prosecutor's office. The office may have a
specialized unit to which all postconviction requests for relief are referred
and the office may have written guidelines for handling requests.

--The economic and personnel resources of the prosecutor's office,
including the availability of technical assistance, with regard to DNA
issues.

--The experience of the prosecutor in answering habeas corpus and other
relief requests and dealing with issues relating to DNA. The prosecutor
who has little experience with DNA may be more inclined not to begin an
investigation until defense counsel has been retained.

--The information available to the prosecutor about the case on the basis
of personal knowledge or details in the request. The prosecutor may
conclude that the case probably falls into category 4 or 5 and can be
disposed of promptly, or the prosecutor may conclude that the case is
potentially a category 1 case that should be handled as quickly as possible
in the interests of justice.

The recommendations that follow are designed for cases in which a
prosecutor, after considering the factors listed above, concludes that a
proactive approach is the best and most appropriate way to proceed. A
proactive approach allows the prosecutor to exercise more control over
timing and other decisions that must be made as the case continues. These
recommendations provide information about the various stages of a
request for DNA testing, give examples of various kinds of issues that
may arise, and offer suggestions on ways in which these issues can be
addressed efficiently and fairly.

The prosecutor should make every effort at cooperation and coordination
with defense counsel once counsel is retained. The prosecutor and defense
counsel should reach agreement on:

--Turning over copies of briefs and court transcripts that may not be in
the possession of the other party.

--Selecting a laboratory to conduct testing.

--Making results open and unlimited in their use by prosecutors, police,
and parole personnel.

Irrespective of how the prosecutor chooses to respond to a request for
testing, once the prosecutor is aware of a request for DNA testing, the
prosecutor should take steps to ensure that there will be no destruction of
any evidence that relates to the case in which testing is being sought. (See
Preserve Evidence and Information, below.)

Responding to a Request: The First Stage

When a request is received, the following steps are recommended: 

Get Information

Upon receiving initial notification of a request for postconviction DNA
analysis, attempt to gain as much information as possible about the inmate
and the case in which he or she was convicted in order to expedite one or
more of the following: locating evidence; case review; release of the
inmate if exonerated; and reopening of the case in order to locate and
prosecute the true perpetrator.

If the request is made by an inmate directly to a prosecutor, the prosecutor
should consider whether the governing law of the local jurisdiction limits
direct contact between an inmate and a prosecutor. If so, the prosecutor
may have to limit the information gathering to identifying information and
refer the inmate to legal counsel.

--Attempt to get the following information about the inmate:

o Full name.

o Date of birth.

o Criminal identification index (CII) number.

o Social Security account number (SSAN).

o Prison or inmate number.

o Current housing location.

o Defenses proffered at trial.

o Defenses currently claimed.

Also find out if the inmate is in custody on a separate case or unrelated
charge for which the serological or DNA evidence is irrelevant, i.e., for
which an exoneration will not result in release. (Such cases may have
lower priority, but resolution may nonetheless have practical 

benefit to an inmate, such as reduced points relevant to prison
classification or custodial status, or may affect calculation of a minimum
release date.)

--Attempt to get the following information about the committing case:

o Court case number.

o Court department or division.

o Name of trial judge.

o Name of court reporter.

o Dates of trial, conviction, and sentencing.

o Name of prosecuting attorney and file number.

o Name of investigating officer.

o Police investigative file numbers.

o Police laboratory or outside serological laboratory case numbers.

o Names of trial and appellate defense counsel.

o Phone numbers of any of the above.

--Evaluate any prior DNA testing. A prosecutor may need to have prior
DNA results reevaluated or interpreted. DNA results may not have been
introduced in a prior trial because defense tactics made such introduction
irrelevant or otherwise not advisable. DNA results that may not have been
used because a laboratory called results "inconclusive" might perhaps now
be declared a "match." (See discussion in chapter 3, and the more detailed
discussion in Get Full Information About What Was Done Previously,
below.)

--Identify other factors that bear on DNA testing. Also, consider at this
stage what additional discovery may be needed. Did the defendant plead
guilty or nolo contendere? Did the defendant enter an "Alford" plea,
pleading guilty in exchange for a lesser sentence, while claiming
innocence, because the defendant believed he or she would be convicted
on the evidence available to the prosecution? Should blood or other
"elimination" standards be taken from consensual sex partners of the
victim, or from coperpetrators of the crimes?

Gaining as much of the above information as possible will assist in later
decisions such as the initial relevancy determination.

Initial Relevancy Determination

Ultimately, the prosecutor will have to determine whether a case is suited
to DNA testing. Categories explained in chapter 1 are summarized below.
Some prosecutors may agree to testing only in category 1 cases, while
opposing testing in all other categories.

Category 1. These are cases in which biological evidence was collected
and still exists. There is agreement on the need for DNA testing and that,
if the results are exclusionary, the petitioner will be exonerated. (See
examples in chapter 1.) These are cases in which the prosecution should
be willing to stipulate to the testing and to agree that testing will be paid
for by the State if the inmate is exonerated.

Category 2. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing or retesting,
favorable results would be helpful to the petitioner's claim of innocence,
but reasonable people might disagree as to whether the results would
amount to a demonstration of innocence, would establish reasonable doubt
of guilt, or would merely constitute helpful evidence to exonerate him.
This category also includes cases where, for policy and/or economic
reasons, there might be disagreement as to whether DNA testing should be
permitted at all or, for indigent inmates, at State expense. The decision on
whether testing or retesting should be done may have to be made by a
judicial officer.

Category 3. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing, favorable
results would not be meaningful.

Category 4. These are cases in which biological evidence was never
collected or cannot be found despite all efforts. In such cases,
postconviction relief on the basis of DNA testing is not possible.

Category 5. These are cases in which a request for DNA testing is
frivolous. (See examples 10 and 11 in chapter 1.) Considerations include:
1) whether the petitioner confessed or pleaded guilty at trial; 2) whether
the petitioner testified to performing the charged act, but raised a defense
such as consent, self-defense, duress, or entrapment; 3) whether the
petitioner was caught in the act or other strong evidence of identity or
involvement exists such as unambiguous fingerprint evidence; and 4)
whether an earlier version of DNA testing had been performed but not
introduced at trial.

Provide Information

Inform the requester that in many cases the costs of testing may have to be
borne by the requester or the inmate. Costs can vary depending on the
number of samples that need to be tested, the number of different tests
conducted, and the pricing policies of the individual laboratory ultimately
selected to perform the tests.

Inform the requester that, depending on the jurisdiction and the crime,
DNA testing may have the negative consequence of identifying the inmate
as a perpetrator of other crimes because his or her DNA testing results will
be placed in a statewide and nationwide DNA criminal identification
databank, or the profile may be checked against data already stored in
such databanks. Also, DNA testing that further confirms an inmate's guilt
may have an adverse effect on a parole board if the inmate has been
consistently denying his guilt, and may preclude executive clemency or
other relief sought on other grounds.

Information Gathering Stage

Preserve Evidence and Information

Immediately after the initial request, contact the applicable clerk of the
court, court reporter, investigating agency, crime laboratories, trial
prosecutor, and defense counsel and request that any remaining evidence
be preserved and that applicable files and court reporter's transcripts or
notes be forwarded to your office for review.

Make Preliminary Evaluation of Availability of Evidence

Based on the issues involved in the case, attempt to locate relevant
physical evidence. Consider the possibility of testing items not
traditionally thought to contain DNA evidence, such as slides taken by
medical personnel during sexual assault examinations and
paraffin-imbedded tissue samples taken at the time of an autopsy.

Try to determine if there is sufficient sample to achieve as many as
possible of the following goals:

--Test the evidence now.

--Retain a portion of the sample for duplicate and/or additional genetic
marker testing.

--Test the evidence on systems that will allow access to and entry into
criminal identification DNA databanks.

--Retest for comparison with suspect standard samples when actual
perpetrators are identified. (Even though the statute of limitations may
have run out as to crimes committed by the true perpetrators, the evidence
may still be useful in subsequent prosecutions as "other crimes" or penalty
phase evidence.)

--Retest, if necessary, with newer genetic tests when they become
available.

If, from initial contact with the investigating officer or review of case
files, it appears that evidence suitable for DNA analysis was never
collected, or has since been destroyed, it may prove impossible to
continue with the rest of this guideline. (See category 4.) However, no
final decision or notification should be made until it has been carefully
verified that evidence did not or does not still exist.

Get Full Information About What Was Done Previously

If DNA testing was conducted but not used at the original trial, find out
why. Sometimes DNA testing was performed, but not used at trial,
because the laboratory declared the results inconclusive. It may be
worthwhile to reexamine the results to determine whether they might now
be viewed as conclusive. Even if a laboratory has a policy against
reevaluating prior interpretations of its own work, numerous outside
experts with excellent credentials are available from crime labs,
universities, and research and medical facilities who can opine on the
results of a prior test. One of the advantages of DNA testing is that each
test creates actual data that can be independently evaluated by experts at a
later date.

Sometimes DNA test results were available, but not used at trial because
the results were received so close to the trial that they were excluded by
the trial judge as untimely, or they were not used by the prosecutor to
avoid a continuance for the defense to prepare to respond to the evidence.

Prosecutors also may not have introduced DNA evidence because they
were unsure of its admissibility based on conflicting or nonexistent
appellate law, because they were uncomfortable with the science that
would be encountered pretrial and/or at trial, or because they were
uncomfortable in presenting statistical evidence and answering statistical
challenges.

Laboratories have different policies about the information they routinely
make available. Some laboratories provide an entire package, including
final reports, final results (x-rays, films, or photos of gels or dot blots),
and the case notes of the examiner. Other laboratories, accustomed to the
former Federal system, in which the defense was entitled only to
discovery of the final, conclusory laboratory report, initially provide only
reports and will later forward other materials on request. The entire
package may be needed to evaluate results of prior DNA testing.

Assessing the Viability of the Claim

Make a Preliminary Evaluation of the Merit of the Claim

A preliminary evaluation should be made of the potential significance of
any further DNA testing. If testing would produce only irrelevant results,
the request for DNA typing should be denied. If the results could be
material to the petitioner's claim, determine, in consultation with an
expert, whether or not available DNA analysis is capable of answering the
question that the inmate now claims will exonerate him. Discuss your
evaluation with defense counsel.

Conduct a Thorough Review of the Case File

In reviewing the case, keep in mind the framework for analysis set out
above and in chapter 1. Determine which category or categories the case
could fall into in light of the inmate's claim, and decide which DNA test
results would be most favorable to the inmate.

Consultation With Defense Counsel

These recommendations assume the inmate is represented by counsel. In
most instances, it is advisable to suggest that the requester get counsel. If
the requester does not get counsel, it is advisable to make all
communications in writing, including your suggestion that the requester
should retain counsel. Throughout the entire process of reviewing a
request for postconviction DNA testing, and during the testing process,
actively consult with defense counsel if one has been retained for the
inmate. Prosecutors should receive a notification letter early in the process
from defense counsel if one has been retained. Defense counsel may be
the first to learn a request is frivolous or has been withdrawn. If the
prosecution unilaterally decides to order testing, the prosecution should
give defense counsel or an unrepresented inmate advance written notice of
the decision.

Interaction With Victims

Immediately consult the local victim/witness specialist in your
jurisdiction, if one exists, to determine whether or not, and when, to
advise the victim or survivors of the request for postconviction analysis of
evidence. It is preferable for victims or survivors to learn of the request
from a sensitive, trained professional (with whom the victim may have
already developed a rapport), rather than from a crime scene investigation
officer attempting to draw blood or collect saliva samples, or worse yet,
from the news media. (See Recommendations for Victim Assistance,
chapter 7.)

Pretesting Considerations

Consultation With Experts and Experienced Colleagues

When evidence exists, contact a forensic DNA expert and, if needed, a
prosecutor who is experienced and up to date on available DNA typing
technologies and the handling of postconviction DNA analysis requests.
Find out what kinds of tests are available, whether the available evidence
is suitable for DNA testing, what issues the testing will be able to address,
and whether the currently available test will consume the available
evidence. Discuss possible nontraditional sources of evidence for testing.

Elimination Samples 

Results of the analysis may not be dispositive unless both the defendant
and all consensual sexual partners and codefendants are eliminated as a
source of the evidence.

Determine whether additional samples/standards need to be collected from
the victim, from the victim's relatives, from other consensual sex partners,
from third parties, or from coperpetrators. If the inmate claims he did not
have sex with the victim, and there is no contention that third parties were
involved, then a nonmatch of the inmate's DNA type to the semen DNA
type may be dispositive without the need to collect additional
reference/elimination samples. If, however, the victim claims to have had
consensual sex with a third party, or claims to have been raped by more
than one person, there may be a need to collect reference blood or buccal
(swabs of the inside of the cheek) standards from each sex partner for
elimination purposes.

Before ordering or agreeing to testing, consider whether an attempt should
be made to get standard samples of all parties who may logically have
contributed to the relevant biological sample. If victims or surviving
family members must be contacted, do so through the local
Victim/Witness Advocacy Program, if available. With most current
testing methods, including all types of PCR-based testing, there is no need
to bother victims and others until the defendant's standard has been tested
and does not match the evidentiary sample. Issues to consider are: 1) not
interfering with the feeling of finality for the victim, and 2) what delay in
the process will be caused by waiting for "elimination" standards.

Mixtures

Mixtures of DNA types from more than one source of semen are more
difficult to interpret. The greater the number of the victim's sex partners,
either by consent or rape, the greater the likelihood that the inmate's type
will be masked by the presence of other types and not afford a clear
elimination.

If an assault or homicide case involves possible blood transfers from
multiple assailants and/or victims, the same issues of mixtures and
masking may apply.

In sex cases with mixtures, or where an exclusion of the defendant is
contrary to otherwise strong evidence, consider the possibility that the
victim may have had an unrevealed prior consensual sexual partner within
24 to 48 hours prior to the rape.

Blood Transfusions

See discussion in chapter 3 under Reference Samples From Individuals
Who Have Been Transfused. In some cases, reference samples may need
to be collected from the donors of each unit of blood transfused to the
victim during rescue surgery. Again, consult experts and discuss with
defense counsel.

Decide Whether to Order DNA Analysis Without Challenge

A prosecutor should normally agree to testing without opposition in
category 1 cases. For example, when a rape case turned solely, or in large
part, on eyewitness testimony, where serology at the time was
inconclusive or not highly discriminating, and newer, more discriminating
tests are now available, the prosecutor should order DNA testing.

Notify the Defense and Victim of Decision 

If the prosecutor decides, on his or her own, to order testing and the
testing will consume remaining samples, the prosecutor should notify the
defense.

If the prosecutor decides not to object to defense testing, the defense
should be notified that the prosecution will cooperate, provided the
defense agrees that the results will be open, reported to both sides, and
available for future use by either side. The prosecution should also
recommend that the testing be conducted either by an accredited
laboratory or a laboratory that meets the criteria for accreditation (see
discussion in chapter 8 on quality assurance standards for forensic DNA
testing), that testing be conducted using techniques currently used for
criminal identification databanking (such as the Combined DNA Index
System (CODIS)), and that the results be released to the State for such
databanking purposes.

Payment

In a category 1 case (where favorable testing results will exonerate the
inmate or demonstrate reasonable doubt), if the inmate is indigent, the
prosecution should attempt to have the testing done at public expense.
When payment for the tests is made by the inmate or on his behalf, the
prosecution should consider agreeing to court-ordered repayment or other
forms of reimbursement if the results exonerate the inmate.

In category 2 cases (where favorable results will be helpful but do not
exonerate) payment by the inmate may be required.

Procedures After Postconviction Testing Results Have Been Obtained

Again, consult with forensic DNA analysis experts to determine if results
are dispositive (exonerates or confirms guilt) or inconclusive (e.g., results
do not match the inmate but alternative explanations exist) or mixtures,
contaminants, artifacts, or results with weak intensity make it impossible
to report a clear match or exclusion.

If the testing ultimately exonerates a person who has been wrongly
incarcerated, it is in the interests of the prosecution and in the interests of
justice to release that person. If the results exonerate (are inconsistent with
all theories of guilt), the prosecutor should immediately take the necessary
steps to have the inmate released. The case investigation may be reopened
and, if appropriate, the charges should be dismissed. 

If the testing results further inculpate the inmate, confirming the validity
of the conviction, the prosecutor should notify the parole board or
probation department. The prosecutor should also request that the inmate's
profile be added to CODIS offender databases, when appropriate, and
should notify the victim or survivors (through the local victim's services
agency).

If the results are inconclusive, the prosecutor should notify the defense
and victim/survivors that the prosecution will oppose habeas corpus or
new trial motions and they should prepare to defend against same.

In any case where the inmate is not exonerated, the prosecutor should
request that, whenever appropriate, the newly developed DNA profile be
added to CODIS offender databases.

In any case where the inmate is exonerated, the prosecutor should seek to
have the evidentiary profile added to the unsolved cases section of the
DNA databases, in hopes of identifying the true perpetrator.

The prosecutor should do all the above with liberal and frequent
consultation with and notification to victim/witness specialists, forensic
DNA experts, defense counsel, and prosecutors experienced in DNA
technologies and postconviction relief issues.

-------------------------------

In the case of serial murderer Timothy Wilson Spencer, the "South Side
Strangler," David Vasquez, an innocent man, confessed to murder,
pleaded guilty, and spent 4 years in prison. FBI profilers had suggested
the true serial rapist/murderer was a white male. The DNA RFLP pattern
of Spencer, a black male, which occurs only once in every 135 million
unrelated persons, matched the pattern of the DNA from the semen taken
from three of four murder scenes. Spencer was matched to the fourth
rape/murder by DNA PCR testing. Vasquez had confessed and pleaded to
a fifth murder, which did not have sufficient biological evidence for DNA
testing but matched the MO of the four rape/murders (of which Spencer
was convicted), and another unprosecuted rape in which Spencer's DNA
matched the DNA from the semen. Although not directly exonerated by
DNA testing, Vasquez was released because of the unique MO of the
many rapes and murders, and because of an FBI behavioral unit report,
which concluded the same person had committed all the crimes. Although
the police and prosecutor who originally prosecuted Vasquez were
skeptical, Vasquez was released because of the efforts of the same
people--police and prosecutors--who had incarcerated him, without a
request by family or defense attorneys. 

[Commonwealth v. Spencer (I) (Va. 1989) 384 S.E.2d 775, (II) (1989)
384 S.E.2d 785, (III) (1989) 385 S.E.2d 850, (IV) (1990) 393 S.E.2d 609
(four death penalties affirmed; executed on April 27, 1994), is dramatized
in Stalking Justice, by Paul Mones, Pocket Books, 1995.]

On Saturday, June 22, 1996, frontpage headlines announced the release of
Kevin Lee Green, who had been in prison for 17 years after being
convicted by a jury of bludgeoning his wife and killing the fetus she
carried. Green was released when DNA tests confirmed the confession of
a second man who was identified by matches of his DNA, from a
California statewide DNA database, to five other unsolved homicides
from almost 20 years earlier. The police and prosecution were not
expecting the confession to the Green case by the second man, were not
investigating that case, and were not responding to requests for
postconviction relief by the family or attorneys for Green. 

["Falsely Jailed: What Happened?" and "Prosecutors Crack the Case Using
Old-Fashioned Detective Work," Orange County Register, June 22, 1996,
page 1.]

-------------------------------

In 1983, Kerry Kotler was convicted by a jury of the burglaries and rapes
of the same woman on two different occasions in 1978 and 1981. Kotler
was identified by the victim after the second rape in a lineup of 500
photos and by voice and sight in an in-person police lineup. Kotler also
was matched to the semen stain evidence by three non-DNA genetic
markers. The prosecutor agreed to release Kotler after 11 years in custody
based on PCR DQ alpha results only, which showed a type from the
semen stain that could not have come from Kotler alone (or from a
combination of Kotler and the victim or the victim's husband). However,
the type from the semen stain did include Kotler's type, and if the type
from the semen stain was a mixture, Kotler is not excluded. Kotler was
released on December 1, 1992.

In spring 1996, Kotler was rearrested and charged with the August 12,
1995 rape of a different woman. Kotler's DQ alpha type is a 4, which
means he got a 4 from both his father and his mother. The semen stain
from the 1981 rape was a DQ alpha type 1.1.4. There are a variety of
possible types of a secondary source of DNA on the semen-stained
panties, including types 1.1, 1.1; 1.1, 4; and 1.1, 1.2 (because the 1.2 type
can be masked by the 4 type). With today's technology the 1981 semen
stain could be tested with additional PCR to see if Kotler were one source
of a mix.

[A partial description of the Kotler case is found in Convicted by Juries,
Exonerated by Science: Case Studies in the Use of DNA Evidence to
Establish Innocence After Trial, published by the National Institute of
Justice, 1996, 61-64, 84.]

-------------------------------

In 1992 a prosecution office received a request to reopen a 1983 case and
perform DNA testing on semen stains in a serial rape case. An attorney,
newly contacted by the inmate's family, said the family claims the inmate
has been in custody for almost 10 years (of a 37-year sentence) for crimes
they all believe he did not commit, and that the DNA will prove all the
crimes were committed by someone else. Before the case file was
retrieved, the trial prosecutor was contacted. The trial prosecutor revealed
that the defendant had pleaded guilty to crimes involving two victims
where non-DNA identification evidence was strong, and that his MO was
strong as to all five victims, including specific language used, and
traditional serological tests matched the inmate as a source of the semen in
all cases. The new defense counsel was notified that the District Attorney's
office would resist all attempts to reopen the case for DNA testing. 

[People v. Morehead, Orange County (CA) #C52794.]

-------------------------------

An inmate requested postconviction polymerase chain reaction (PCR)
testing where inconclusive restriction fragment length polymorphism
(RFLP) testing had not been introduced at trial. After a court-ordered PCR
test, the RFLP results were reviewed by a scientist expert who declared a
"match" based on the previously declared "inconclusive" faint results,
which was confirmed by PCR testing. Had the prosecution reviewed the
RFLP results when the request for PCR testing was made, there might
have been no need to go to court.

[Davi v. Joseph Class, Warden, unpublished decision, case No. 19844,
Order of Remand (S.D. 1998)]. 

-------------------------------

In 1984, a Virginia man was arrested and convicted of the brutal rapes and
sodomies of a 19-year-old camper. Postconviction PCR DQ alpha testing
eliminated both the inmate and the victim's boyfriend as a source of the
semen on a vaginal swab taken shortly after the rapes. Before Virginia
Gov. George F. Allen would grant a clemency petition, he ordered State
police to interview the victim. She admitted a consensual liaison with
another man beside her boyfriend. Results of DQ alpha testing of the
second boyfriend showed a possible mix of the inmate's and the second
boyfriend's semen. Additional PCR, polymarker testing eliminated the
inmate. This case went from a category 1 case to a category 2 (or worse)
case, to a category 1 case, based on the three sets of testing. The inmate
was released after 10 years in custody. If the victim had been contacted up
front, this process would have moved more swiftly. This case also shows
the increasing power of newer DNA tests. 

[This is the case of Edward Honaker, retold by Harlan Levey in And the
Blood Cried Out, Avon, 1996, 179-86.]

-------------------------------
In a case pending in 1998, two brothers were released (after 13 years in
custody) by a judge who ordered a new trial when postconviction testing
showed neither was the source of semen on a vaginal swab in a
kidnap/rape. After the inmates were released, the victim, who was married
at the time of the rape, disclosed she had had an affair and had intercourse
within 2 days of the rape. Unfortunately, the man she named as her
extramarital lover had died years earlier from being assaulted in a
Mississippi jail. Fortunately, autopsy blood from this man had been
preserved and DNA testing matched him to the semen from the vaginal
swabs. If the disclosure of the extramarital affair had been made prior to
the order for a new trial, that order may never have been issued.

-------------------------------

In a case pending in 1999, the DNA type of the autopsy heart-blood
standard of the victim did not match the DNA type of the blood on the
shoes of the only suspect. The issue was resolved in two ways: First, the
laboratory tested a sample of the victim's brain tissue, tissue not expected
to be contaminated by transfusion blood. Second, by search warrant to the
blood bank, the investigator learned the identities of all four donors of the
blood transfused to the victim in surgery. All donors freely gave reference
samples. The DNA type from the brain tissue matched the DNA type from
the blood on the suspect's shoes. The DNA type of the heart-blood
matched the DNA type of the donor of the last unit of blood transfused to
the victim. Again, consult experts and discuss with defense counsel.

-------------------------------

Chapter 5

Recommendations for Defense Counsel

These protocols are addressed to public defenders, court-appointed
counsel, private practitioners, pro se individuals, and law clinics
(hereinafter "defense counsel"). It should be emphasized that defense
counsel should seek the advice of experts in the field whenever possible.
Please consult the resources in appendix I.

Handling Initial Requests

Screening

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:

Defense counsel should do an extensive screening to determine if the case
is suited to DNA testing. The screening process' ultimate goal is to
classify cases according to the criteria set forth in chapter 1. The classes of
cases are as follows:

Category 1. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing or retesting,
both the prosecution and defense agree that favorable results will
exonerate the petitioner.

Category 2. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing or retesting,
favorable results would be helpful to the petitioner's claim of innocence,
but reasonable people might disagree as to whether the results would
amount to a demonstration of innocence or would establish reasonable
doubt, or would merely constitute helpful evidence. This category also
includes cases where, for policy and/or economic reasons, there might be
disagreement as to whether DNA testing should be permitted at all or, for
indigent inmates, at State expense. The decision on whether retesting
should be done may have to made by a judicial officer.

Category 3. These are cases in which biological evidence was collected
and still exists. If the evidence is subjected to DNA testing, favorable
results will be inconclusive.

Category 4. These are cases in which biological evidence was never
collected or cannot be found despite all efforts. In such a case,
postconviction relief on the basis of DNA testing is not possible.

Category 5. These are cases in which a request for DNA testing is
frivolous.

Please note that there are several types of situations within these
classifications that may frequently occur. These include cases where:

--Evidence exists and elimination samples from third parties need to be
collected.

--Evidence is believed to exist, but cannot be found, at least initially.

--Evidence exists, but may not be testable because it is old and has
degraded.

To screen the cases effectively, defense counsel should follow several
steps:

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.

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:

--Where and when did the offense and trial take place?

--What was the sentence?

--Who were the attorneys, both prosecuting and defense, at all stages of
the case, including the appeals?

--What relevant items of evidence were collected that could contain
biological samples suitable for DNA testing? Please note that this
information does not mean that the items were introduced into evidence as
exhibits at trial, or even tested.

--What testing, if any, was conducted?

--What biological evidence was tested or introduced at trial?

--What was the defense at trial?

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:

--Defense counsel must notify the prosecution that a request for DNA
testing has been received and that this notification may occur at any time
after the initial inquiry.

--If DNA testing is conducted, the results will be disclosed to the
prosecutor.

--If defense counsel finds the case to be viable and DNA testing is
subsequently conducted that confirms the guilt of the inmate, the results of
such testing could have negative consequences for the inmate. The
negative consequences can include unfavorable outcomes at future parole
hearings and/or unfavorable outcomes on other postconviction petitions.

Information Gathering

Once the questionnaire is returned, defense counsel should evaluate it. If
the case still appears to be viable, then more documents should be
requested to further evaluate the case. The items to be requested are case
dependent, but will generally include the following:

--Trial transcripts (especially the closing arguments and any testimony
regarding scientific evidence).

--Laboratory reports.

--Police reports.

--Appellate briefs (especially the prosecution's brief).

--Postconviction briefs.

--Evidence collection lists (may also be known as logs, inventories, or
collection sheets).

Defense counsel should do whatever it takes to help the inmates find the
material by calling either the former attorneys, the courts, investigators, or
a friend or family member who may be able to help the inmate.

Assessing the Viability of the Claim

When the requested materials are received, defense counsel should
conduct another evaluation to determine in which category the case falls.
(See category descriptions earlier in this chapter and in chapter 1.) If it is
determined that the case falls into category 1 or 2, then the case will be
accepted and the search for the evidence can commence.

At this point, defense counsel should contact the prosecutor's office to
notify it that the inmate is seeking DNA testing and that all evidence
collected in connection with the case should be preserved. Throughout this
entire process, defense counsel should actively consult with the
prosecutors and seek their cooperation. (See the section, Consultation
With Prosecutors (below), for further discussion.)

Investigation/Searching for the Evidence

Once a case has been determined to meet the criteria of a category 1 or
category 2 case, defense counsel must begin a search for any biological
evidence that may be available on which to conduct the DNA testing.
Finding the evidence is the most difficult part of the process. Uniform
protocols for the preservation of evidence in each jurisdiction do not exist.
Each State, local, or county jurisdiction varies in its methods of collecting,
storing, and preserving evidence. These methods may not conform to
existing statutes and regulations. Many times all parties believe that the
evidence has been destroyed, when in fact it has not. It may be necessary
to search for evidence that has not previously been tested or introduced in
court.

A major barrier to conducting DNA testing is that, quite frequently, the
evidence has been destroyed or cannot easily be found. Destruction
generally occurs as a routine matter and is not done with malicious intent.
Once preservation statutes have been passed in each State, it will make the
process of finding the evidence both more efficient and more likely to
occur. However, at this time, since most jurisdictions do not have uniform
procedures for storing evidence, it is necessary to follow certain steps.
Note that these steps will differ from State to State and case to case.

The searcher for the evidence must determine the most likely places for
the evidence to be found. Places and persons to consider and contact are:

--Police department evidence or property rooms. Evidence is often found
here if the evidence was never tested or it was sent to the State crime
laboratory, which then returned it.

--Prosecutor's office. Evidence is often found here when it has been
introduced at trial.

--State and local crime laboratories will often retain slides or other
pieces of evidence after conducting testing. Laboratories will usually
return to the police department the clothing and vaginal swabs that are
introduced as exhibits at trial.

--Hospitals, clinics, or doctors' offices where sexual assault kits are
prepared.

--Defense investigators.

--Courthouse property/evidence rooms.

--Offices of defense counsel in jurisdictions that require parties to
preserve exhibits produced at trial.

--Independent crime laboratories.

--Clerks of court.

--Court reporters.

The searcher should not give up until he has seen substantiation that the
evidence has been destroyed. Even then, previously untested items may
still be available, e.g., slides or clothing that were introduced for
identification purposes.

Even if the evidence appears to have been destroyed, the laboratory may
still have slides or previously isolated DNA, which, given advances in the
sensitivity of DNA testing, frequently contain enough biological material
to conduct successful testing.

The searcher may choose to go to court and move for the court to order
custodial agencies to search for the evidence. This type of motion may be
necessary if legitimate efforts are not being made to locate the evidence.

Preservation letters. It is extremely important that any evidence collected
in connection with the case be preserved. Once counsel has determined
that the case will be pursued, a blanket preservation letter should be sent
asking the custodial authorities to preserve the evidence. Once potential or
specific locations of the evidence have been identified, preservation letters
should be sent to the custodial agencies. The letter should indicate the date
on which the evidence was located, the person who indicated that it had
been located, and the specific items of evidence that were located. Further,
the letter should request that the evidence not be destroyed for an
indefinite period of time because it will possibly form the basis of a
postconviction relief petition, and that if destruction is nonetheless
contemplated, notice should be provided to counsel so that injunctive
relief can be sought.

If the evidence has been destroyed, this must be confirmed in writing by
the appropriate authority. In addition to the written assertion that the
evidence was destroyed, there should be some additional documentation
confirming destruction. For example, either a court order mandating the
destruction or a log book entry would suffice.

Consultation With Prosecutors

Throughout the search for the evidence, defense counsel should actively
consult with the prosecutors and seek their assistance. Defense counsel
should contact the prosecutor soon after the request is initiated. A
notification letter should be sent to inform the prosecutor's office that
DNA testing has been requested. Defense counsel should send this letter
after the initial questionnaire is returned.

Once evidence is found, all efforts should be made to obtain the
prosecutor's consent to access the evidence for purposes of DNA testing.
As discussed in chapter 1 and earlier in this chapter, the client must
understand that, at an early stage in the process, defense counsel will
notify the prosecutor that the request for DNA testing has been initiated
and that defense counsel will inform the prosecutor of the DNA testing
results.

In situations where the prosecutor is uncooperative or there is
disagreement as to the category into which the case falls, defense counsel
may have to litigate to obtain access to the evidence for DNA testing.
However, defense counsel should encourage and seek cooperation with
the prosecutors at every stage throughout this process.

Interaction With Victims and Dealing With the Media

Defense counsel should always instruct the client and the client's family to
refrain from any contact with the victim both prior to and after the testing
process. In general, defense counsel should also refrain from any contact
with the victim.

Ordinarily, it is preferable to have the district attorney's office, through its
victim services agency, determine if and when it is appropriate to inform
the victim that a DNA test has occurred or will occur. It may not be
necessary to inform victims that testing will occur, and thereby
unnecessarily upset them when the results might be incriminating. If the
results are exculpatory and further cooperation is needed from victims or
family members in offering "elimination samples," victim services
agencies are best equipped to deal with these issues.

Again, it is also preferable for the prosecutor to take the lead in terms of
dealing with the media and the potential publicity surrounding correction
of an injustice with regard to postconviction DNA testing. 

Legal Avenues

Defense counsel should become familiar with the law in their State. Every
State has its own postconviction remedies and procedures. There may be a
statute that specifically allows for postconviction DNA testing. Defense
counsel also should determine whether the client has made any previous
postconviction motions, regardless of whether they involved DNA issues.
In general, these motions should be filed in State trial court. The motion
will generally be entitled, "Motion to Access the Evidence for Purposes of
DNA Testing," or it may be filed as a State habeas petition. There may be
cases, however, in which all State court remedies have been exhausted and 
it is necessary to file a habeas corpus petition in Federal district court or to
pursue executive clemency. Defense counsel should become familiar with
the procedures for executive clemency in their State. There are basically
three different types of jurisdictions in which applications will be made:

--States such as New York and Illinois, which have statutes permitting
postconviction DNA testing.

--Jurisdictions where, by case law, postconviction DNA testing requests
are permitted based on due process grounds. (See, e.g., Commonwealth v.
Brison, 618 A.2d 420 (Pa. Super. 1992 )).

--Jurisdictions where newly discovered evidence claims are time barred
and applications are made for access to the evidence for the purpose of
obtaining executive clemency.[19]

If there are no available remedies according to the State's postconviction
statutory scheme, but if it is a category 1 case (i.e., DNA testing will be
outcome determinative) then defense counsel should file in court for
access to the evidence for purposes of obtaining executive clemency.

Pretesting Considerations

Consultation With Experts and Experienced Colleagues 

To achieve satisfactory testing arrangements, defense counsel without
extensive experience handling DNA matters should consult with more
experienced colleagues in dealing with both the postconviction DNA
applications and the testing process. Two particularly valuable sources to
which attorneys can refer are: the National Institute of Justice study
published in 1996 entitled, Convicted by Juries, Exonerated by Science:
Case Studies in the Use of DNA Evidence to 

Establish Innocence After Trial and the 1996 National Research Council's
publication, DNA Technology in Forensic Science.

Deciding on a Mutually Agreeable Laboratory and Methods of Testing 

A laboratory and the best methods of testing need to be agreed upon by
representatives of both parties. Defense counsel should consider the
following issues when entering into these discussions with the prosecutor:

--The different methods of DNA testing that are available.

--The age, type, and amount of evidence available.
--Where and how the evidence was stored.

--The types of technology that a specific laboratory has available.

--How long the laboratory has had the technology in question.

--The reputation of the laboratory. 

These factors are especially important where the samples may be old or
have degraded and there is not enough sample to conduct more than one
test. It is generally possible, for example, for scientists retained by both
sides to work out a protocol whereby preliminary tests are performed by
one laboratory to determine the quality and the quantity of DNA available.
Based on these determinations, the parties can agree on what testing
should be performed, who should do it, and who should be present to
witness the testing.

Elimination Samples 

It may be necessary to obtain additional samples from the victim and/or
any of his or her prior consensual partners. If this is the case, the
prosecutor, ideally through victims' services, should contact the victim to
facilitate this process. If the victim or third party will not agree to submit
samples for purposes of elimination, then it may be necessary to go to
court to obtain an order.

Replicate Testing 

Agreement should be reached, if there is enough sample, to do replicate
testing, thereby minimizing the chances of an erroneous result due to
contamination, mishandling of samples, or any other factor.

At the very least, provisions must be made to ensure that, if there is not
enough sample to conduct replicate testing, a neutral expert can review the
results and be involved in establishing the proper testing protocols in light
of the facts of each case and on an individual basis. 

Payment 

In category 1 cases (i.e., where testing will determine the outcome) the
State should pay. In category 2 cases (where the outcome is questionable)
the inmate may have to bear the costs of testing. It is possible that in
category 2 cases the inmate may be reimbursed if the results are 
exculpatory. It should be noted that if the State pays for the testing, then it
will most likely use its own State or county laboratory.

Disclosure of DNA Testing Results 

Defense counsel should ordinarily expect and agree that the DNA testing
results, regardless of outcome, will be made public.

Establishing a Chain of Custody and Preserving Evidence for Testing

The original condition of the evidence and its packaging should be
photographed and carefully documented at the time of its discovery and
throughout all stages of the postconviction procedures.

The defense attorneys and prosecutors should develop mutually agreeable
methods for preserving the chain of custody for the evidence throughout
the testing process. This should include photographing the evidence and
its packaging when it is received and sent; an evidence labeling system
that includes initialing by evidence handlers with times and dates; and, if
possible, photomicrographs of relevant slides, especially slides containing
sperm in sexual assault cases.

The evidence should be properly preserved. The most important factor in
storing evidence is a dry atmosphere at room temperature.

It is important to continue to carefully preserve the evidence even after
postconviction DNA testing has been conducted because future
developments in the technology may make it possible to obtain additional
results at a later date. For example, there have been several cases where
RFLP DNA testing was conducted and the results were inconclusive, but
PCR-based testing was conducted years later and conclusive results were
obtained. Particularly with the advent of mitochondrial DNA testing, there
will be many new cases where future DNA testing will be able to produce
results that were not previously obtainable.

Procedures After Postconviction Testing Results Have Been Obtained

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.[20]

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

-------------------------------

Chapter 6

Recommendations for the Judiciary

Handling Initial Requests

Trial courts routinely receive requests, petitions, motions, or even letters
for postconviction relief. Some are filed by defendants, some by their
family members, and some by defense counsel on a defendant's behalf.
Rules and statutes govern the manner in which courts act on these
postconviction relief requests, based upon time limits, preclusion, and the
like.

However, requests for postconviction DNA testing present a somewhat
unique issue for the trial court in that the defendant making the request
does not have "newly discovered evidence" that would probably overturn
a conviction, and in many jurisdictions any request for relief would be
time barred. But at the time of conviction, for example, a defendant who
claimed innocence may not have had the opportunity to have evidence that
was collected by law enforcement officials tested for DNA comparison, or
the testing that was available at the time was not as sophisticated as
today's.

In some cases, if the trial court is familiar with the case, a summary
determination that DNA testing would not be relevant to the outcome of
the case can be made. For example, if the court in a sexual assault case
knows that the defense at trial was consent, or in a homicide case that the
defense was self-defense, DNA analysis normally would not be relevant.

Assuming that the court does not make its own summary determination,
the court's role, when it receives such a letter or request, should be as a
referral source. A copy of the letter or request should be sent to the
prosecuting agency. If the inmate or a family member writes the letter, it
is recommended that a referral be made to the local public defender's
office, the State criminal defense attorneys' organization, the local
court-appointed counsel, or a national resource center that deals with
DNA evidence cases such as the Innocence Project at Cardozo Law
School in New York. The court should not notify the victim or victim's
family upon the initial request, but rather should leave the notification,
and the decision when to notify, to the prosecutor and victim assistance
office.

Information Gathering/Searching for Evidence

Upon referring the request to the prosecution and defense, the court's role
becomes more reactive than proactive. Extensive investigation needs to be
done by counsel before a request for DNA testing can be granted. A
hierarchy of cases has been described in the introductory chapter of these
recommendations that will help the parties and the court determine if the
case is suitable for DNA testing. The court will likely be involved only in
category 1 and category 2 cases.

Category 1 involves cases in which biological evidence was collected and
still exists. If the evidence is subjected to DNA testing or retesting,
favorable results will exonerate the petitioner.

Category 2 involves cases in which biological evidence was collected and
still exists. If the evidence is subjected to DNA testing or retesting,
favorable results would be helpful to the petitioner's claim of innocence,
but reasonable people might disagree as to whether the results exonerate
him. This category also includes cases where, for policy and/or economic
reasons, there might be disagreement as to whether DNA testing should be
permitted at all or, for indigent inmates, at State expense. The decision on
whether this is a case for testing or retesting may have to be made by a
judicial officer.

Category 3 involves cases in which biological evidence was collected and
still exists. However, if the evidence is subjected to DNA testing or
retesting, favorable results would be inconclusive.

Category 4 involves cases in which biological evidence was never
collected, or cannot be found despite all efforts, or was destroyed, or was
preserved in such a way that it cannot be tested. In such cases,
postconviction relief on the basis of DNA testing is not possible.

Category 5 involves cases in which a request for DNA testing is frivolous.

The court can play an important role in helping obtain access to evidence
prior to testing. This is a crucial issue in that it allows the "screening"
process to continue. This screening serves as a weeding out of cases in
which DNA evidence will be irrelevant. The court should be willing to
enter orders for the parties to gain access to evidence that has been
preserved, whether in a laboratory, police property room, clerk's office, or
prosecutor's office. This evidence may include clothing or other crime
scene evidence that was never before examined for biological evidence
because it is not visually apparent.

As information is gathered and counsel search for the evidence, the court
may be called on to issue certain orders. Upon request of counsel for the
State or defendant, or jointly, or sua sponte, it is recommended that the
court issue an evidence preservation order to the investigating agency,
clerk of court, crime laboratory, prosecutor's office, or any other agency in
a jurisdiction that may have evidence that might be subject to DNA
testing. This is done to prevent destruction or disposal of the evidence,
which would preclude testing in the future. The evidence to be preserved
may include items not used at trial, but which were collected and might
contain DNA evidence. At this stage, the court also can help determine if
any orders were ever entered for destruction or disposal of evidence.

In appropriate circumstances, at the request of either party, or sua sponte,
the court might consider whether a "no contact with the press" order
should be issued. The court should be particularly sensitive to victim
issues in this regard.

Pretesting Stage

Once it is determined that some evidence still exists and that DNA testing
or retesting could lead to a different result in a case, it is recommended
that the court set an informal conference with counsel. It may also be
helpful to have a representative of the State crime laboratory or another
laboratory acceptable to both parties present. At the informal conference,
the court should do all it can to foster cooperation between the parties.
The court should seek agreement between the parties or may need to make
a determination as to several issues that should be raised in the informal
conference, such as:

--The method of preserving evidence for chain-of-custody purposes
during the testing process.

--The type of DNA analysis to be utilized.

--The laboratory that will perform the testing. It may be necessary for the
court to enter an order to release certain evidence to a laboratory for
testing. Prior to any release, both sides should be notified and given an
opportunity to be heard.

--Determination of the estimated cost of the testing and who will pay for
it. This may be determined by local policy, State statute, agreement
between the parties, or court order. In category 1 cases, the testing will
generally be at State expense, but often the petitioner or his family will
have to pay, with reimbursement made if there is an exoneration or
exclusion.

--Determination of the amount of sample available for testing and
replicate testing. If the entire amount of sample will necessarily be
consumed, arrangements should be made for a defense or prosecution
expert to observe the testing procedures, either by counsel or upon order
of the court. The court should try to get the parties or their experts to
agree to a protocol to be used. Otherwise, the court may be called upon to
determine the protocol to be followed.

--Determination of whether it will be necessary to test the victim's
relatives or third parties or whether additional samples need to be obtained
from the victim. If it is so determined, take the following action:

--Ensure that contact with the victim is minimal, only when necessary,
and through the victim services or advocacy office.

--Offer the victim a choice of what type of sample to provide, if at all
possible (buccal swab, blood, hair, etc.).

--Attempt to seek stipulations or agreements between counsel on
additional samples to be taken from others. If there is no agreement, the
court will likely have to enter an order.

At this stage, it may be appropriate for the court to consider the use of
"court experts" or a panel of the same, as has been done in complex civil
cases with the use of special masters to assist in screening and evaluating
evidence.

The court also should be aware of the need to preserve some of the
sample, if at all possible, for investigation and testing of future suspects if
the defendant is exonerated. This is another reason why the issue of
replicate testing should be considered with input from laboratory
personnel.

Procedures After Postconviction Testing Results Have Been Obtained

If the results of the testing are favorable to the inmate and no alternative
explanations exist, the court should be prepared to grant a joint request by,
or a motion from the defense or prosecution, to vacate the conviction in
jurisdictions where postconviction relief is not time barred. In
jurisdictions where a time bar exists it is recommended that the court note
its findings and recommendations as an attachment to an application for
executive clemency or pardon.

In the absence of a joint motion or stipulation for dismissal, if DNA
testing results seem to exculpate the defendant because of an exclusion, an
evidentiary hearing should be set to determine if there is a reasonable
probability of a change in the verdict or judgment of conviction. Not all
exclusions will result in exonerations. If the court makes such a finding, a
new trial should be set, and the defendant's release conditions should be
reexamined.

It is possible that, in States where a time bar exists for petitions for
postconviction relief based on newly discovered evidence, the parties may
stipulate to a waiver of the time bar or the court may use its inherent
powers to prevent what may be a miscarriage of justice. This would only
apply in cases where dispositive evidence of exoneration exists. The court,
for example, could order a defendant's release from custody pending a
decision on executive clemency.

If a petition for postconviction relief is granted, the court should ensure
that the prosecution or a victim advocacy organization makes contact with
the victim prior to any public release of the information to reduce
additional emotional trauma and surprise.

If testing results further inculpate the defendant, it is recommended that
the court promptly act upon a motion to dismiss the petition.

-------------------------------

Chapter 7

Recommendations for Victim Assistance

Victims and surviving family members confront a number of issues and
events following the conviction and sentencing of the defendant. Rarely
does the impact of the crime end with the incarceration of the offender.
Convicted defendants appeal their sentences, come up for parole, and
sometimes request that evidence undergo DNA testing. All of these
postconviction events may be upsetting to victims and families of murder
victims and are painful reminders of the suffering and loss associated with
the crime. It is extremely important that crime victims and surviving
family members are provided with information and approached with great
sensitivity. This is especially critical when the conviction was based
primarily upon eyewitness identification by the victim. Victims and their
families may need access to special services to help them cope with this
new case development.

It is important to note that a number of States passed victims' rights
statutes that require notification of victims, including notification of
appeals proceedings, prison release, and application for pardon or
commutation of sentence. Agencies involved in postconviction DNA cases
should make certain they are complying with any applicable State statutes.
(A compendium of State statutes addressing notification of victims is
included in the appendixes.)

Initial Notification

Notification to victims of requests for DNA testing should be made by the
prosecutor, preferably through a victim assistance specialist or advocate.
When possible, notification should be made by someone who worked with
the victim in the past. One person should be designated as the primary
contact person for the victim. If the prosecutor's office does not have a
victim assistance program, support and other assistance for the victim
should be sought from a local victim assistance program, such as a rape
crisis center or a homicide survivors' support program.

When to notify a victim is ultimately a judgment call on the part of the
prosecutor and victims' advocate and should be based on the status of the
request and the emotional and mental health status of the victim. Initial
discussions regarding testing of DNA evidence should be informal and
low profile. If DNA testing is not possible or turns out to incriminate the
applicant, there may not be any reason to disturb the victim or his or her
family. The timing and manner of notification is extremely important
when the victim has a history of severe depression or suicidal ideation.
While care should be taken to avoid upsetting victims or survivors
unnecessarily, it is better to provide information to victims as early in the
process as possible. Initial notification should be made before a motion to
release the evidence is made to the court or before there is a chance the
victim or surviving family members will hear or read it in the media or
from other sources.

Victims and survivors need to be provided with a simple but thorough
explanation of how DNA testing may be used in their case, the process
and
procedures used, and the potential outcomes of testing. It will help to
provide written information about DNA testing so victims and survivors
will have a chance to absorb complex information at their own
convenience. (Sample brochure content is included in the appendixes.)

Victims and survivors should be provided with information about the
status of the DNA testing request, how they will be notified about future
events, and what types of victim assistance are available.

Searching for Evidence/Requesting DNA Samples From Victims and
Third Parties

Unreasonable and intrusive sample collection should be avoided to
prevent retraumatization of victims. Access to third parties should be
permitted for elimination purposes only. When requesting samples from a
victim after conviction, prosecutors and victims' advocates should weigh
the level of trauma experienced by the victim at the time of the crime and
the potentially traumatic impact of testing the victim along with the
possibility of a determinative outcome.

Requests should be made only through the prosecutor, investigator, or
victims' advocate.

The technical aspects of testing and the significance of the samples
requested should be explained in detail so the victim understands how it
will be collected, how it will be used, and what testing results may mean.
It should be made clear to victims and third parties that DNA samples are
to be used for elimination purposes only.

Victims, or third parties associated with the victim, may refuse to provide
samples for testing. Prosecutors and advocates should strongly encourage
voluntary compliance by victims and third parties in order to avoid orders
by the court for testing. Courts should be strongly discouraged from
ordering victims to provide samples for testing except as a last resort.

Victims who consent to testing should be provided with as much choice as
possible with regard to the timing, method, and location of the testing.
The preference would be to use the least invasive method. When possible,
the victim should be allowed to choose the type of sample to be used, such
as buccal swab rather than a blood sample. 

Prosecutors or victims' advocates should provide escort and transportation
assistance for testing, hearings, and meetings, if needed.

Ensuring Privacy of Victims and Survivors

Steps need to be taken to ensure that information about the location of
victims and survivors remains confidential. Contact with victims should
only be made by prosecutors or victims' advocates. Addresses and phone
numbers of victims and survivors should not be provided to the
defendant's counsel or other representatives and should not be included in
court documents. 

Victims and survivors should be reminded of their right to refuse media
interviews.

Assisting Victims After Postconviction Results Have Been Obtained

Prosecutors and victims' advocates should ensure that information about
testing results is provided to the victim or survivors in a timely fashion.
Information should be provided in person, if possible. The more critical
the information, the more important it is to provide it in person, or at least
by telephone. Victims should be provided with a thorough explanation of
the meaning and consequences of testing results.

Prosecutors and victims' advocates should ensure that counseling
resources are available through their offices or a community-based
assistance program.

If testing results produce exculpatory evidence, particularly in mistaken
eyewitness identification cases, victims may still believe the defendant is
guilty. Victims may be upset and angry. The credibility of sexual assault
victims is usually attacked in trial, and a conviction is viewed as a
significant validation of the victim's credibility. To face having his or her
credibility called into question once again will cause tremendous distress.
Victims or survivors will need a great deal of support and an opportunity
to express their anger and frustration. Some victims may feel terrible guilt
about their part in convicting an innocent person.

Reassure victims that they did the best they could at the time and that
memory can be fallible. It may help to remind victims that DNA
technology, which may not have been available at the time of the original
investigation, can be an important tool in making sure the right person is
convicted. Remind victims or survivors that the criminal justice system is
not perfect, and emphasize the importance of knowing the truth and
identifying the right perpetrator to ensure justice and to prevent future
victimization of other individuals.

Also, it may help to inform victims of the following:

--Even the Innocence Project concedes that, in many cases in which
postconviction requests are made for DNA testing, the results confirmed
the identity of the convicted person as the true perpetrator. These
confirmations may have a significant impact on any future decisions
regarding probation or parole.

--The victim should be assured that everyone in the system, particularly
prosecutors and judges, will make sure that ambiguous results, e.g., results
that do not clearly exonerate the perpetrator, will not result in a new trial
or weaken the conviction.

--If postconviction testing of DNA evidence results in a valid exclusion,
the victim can be reassured that growing DNA databases will increase the
future likelihood of identifying the true perpetrator in his or her case.
DNA databases will also make it easier to accurately identify and link
perpetrators to crimes in future cases.

-------------------------------

A North Carolina man convicted and sentenced to life in prison for two
rapes he did not commit was exonerated a decade after the crimes
occurred because of DNA testing. After the attacks occurred on the same
night in 1984, both victims went to the hospital and full "rape examination
kits" were completed. Evidence included a flashlight found in the man's
apartment that was identical to one stolen from the second victim; shoes
found under the man's bed were missing insoles similar to foam found at
the scene of the first rape; and the first victim had identified the man as
her attacker. The man was convicted of the rape of the first victim and
sentenced to life in prison. However, the North Carolina Supreme Court
overturned the verdict and ordered a new trial, scheduled for 1987.

Meanwhile, the defendant met a fellow inmate in prison who bore a strong
resemblance to the composite sketch used in his case. The other inmate
denied involvement, but reportedly bragged to other inmates that he had
committed the rapes. During the new trial, both victims testified against
the defendant. Both the victims and the jury were unconvinced that the
man the defendant had met in prison was the real assailant. And the court
withheld evidence of the man's alleged confession. The defendant was
convicted of both rapes and sentenced to two 1ife sentences plus 55 years
in prison.

In 1994, the defendant learned about DNA testing (a procedure
unavailable at the time of his trials), and filed and won a motion for DNA
testing. In spring 1995, Burlington Police turned over to the court all case
evidence containing semen or other bodily fluids. Samples from the first
victim had deteriorated and could not be tested, but those from the second
victim provided a breakthrough. On a tiny vaginal swab, scientists found
sperm. Subjected to a DNA testing procedure known as polymerase chain
reaction (PCR) testing, that sample did not match to the defendant. He
could not have committed the crime.

The State DNA database matched the sample to the other prison inmate,
who confessed to both rapes. In 1995, almost 11 years after the rapes and
101/2 years after being taken into custody, the defendant was cleared of
all charges and released from prison.

-------------------------------

A rape case was solved 6 years after it occurred because of a DNA
databank. A Virginia woman was robbed and raped by a masked man who
had dragged her from her house into a wooded area in 1989. The woman
reported the attack and visited a hospital where a "rape examination kit"
was completed and DNA and other evidence was collected from her body
and clothing. For 6 years, she feared the man would come back, as he had
threatened. Then a forensic scientist for the Commonwealth of Virginia
notified her that the man who had raped her had been identified and was
serving time for a separate offense. When run through Virginia's DNA
databank, the inmate's DNA had produced a match or "hit" with the DNA
sample of the woman's assailant collected years earlier. Later, the woman
learned that her assailant had gone to jail only months after raping her.
The necessary DNA evidence had been in the Commonwealth's possession
but was not analyzed sooner because of a backlog in its DNA databank.
By eliminating or at least reducing such backlogs, States will save victims
like her years of suffering and allow them to begin healing much sooner.

-------------------------------

Chapter 8

Recommendations for Laboratory Personnel

These recommendations are addressed to any laboratory personnel who
are contacted regarding postconviction requests for DNA testing. This
would include laboratories that are being contacted: 1) regarding work
previously done on evidence in the case, or to determine whether any
evidence remains, and its location; 2) as consultants to advise attorneys,
the judge, or the defendant regarding DNA testing; and/or 3) to perform
DNA tests This chapter also covers considerations for selecting a
laboratory for DNA testing.

Handling Initial Requests

The laboratory may be contacted by various individuals (e.g., defendant,
defendant's family, prosecuting attorney, defense attorney, judge)
regarding postconviction relief. Someone in the laboratory must determine
the appropriate response in light of the stage in the postconviction process
at which the laboratory is being contacted. For instance, if the laboratory
is contacted directly by the defendant or the defendant's family seeking
information regarding postconviction relief, the laboratory should refer
the individual(s) to the prosecuting attorney's office and/or the defense
attorney's/public defender's office. Depending on the laboratory's
policies, information may be provided regarding the existence of any
evidence remaining in the laboratory and its suitability for testing. If the
laboratory is contacted by an attorney or a judge, the laboratory should
provide the requested information and, most importantly, preserve the
samples in an appropriate manner for future testing. Also see the section
below regarding the role of the expert(s) in a laboratory for further
information. 

Role of the Expert in the Laboratory

Laboratory Previously Involved in the Case

A laboratory previously involved in the case may be requested to provide
information regarding: 

--The meaning and limitations of any previous test results obtained,
including all serological and/or DNA testing and all results reported as
inconclusive regardless of whether they were used at the trial or whether
evidence still exists for retesting. 

--Whether any evidence remains.

--The location and storage history of any remaining evidence.

--The laboratory's policies for the release of evidence to the defendant. 

--The laboratory's policy for providing discovery (laboratory case notes
and copies of data, or laboratory reports) regarding the disclosure of
previous test results. The laboratory may also be requested to serve as a
consultant to the attorney(s), judge, or defendant (see below) regarding
DNA testing.

In a postconviction proceeding, the laboratory will likely be requested by
the attorney(s) or ordered by the court to retain and preserve any evidence
that remains in the laboratory's possession. The laboratory should locate
the evidence and ensure that it is stored in a proper manner to preserve the
samples for future DNA testing. Generally, stains, bones, and teeth should
be stored dried at room temperature, 4 degrees C, or frozen; liquid
samples should be stored frozen; and tissue samples should be stored
frozen (preferably at -70 degrees C). 

Laboratory as a Consultant

A laboratory may be requested to serve as a consultant to the attorney(s),
the defendant, and/or the judge. It is important that expert personnel serve
in a fair and unbiased manner as consultants to advise on issues regarding
DNA testing in the particular postconviction proceeding, such as:

--The limitations and meaning of test results previously obtained.

--What evidence could and should be tested that would likely yield
interpretable results.

--What DNA tests should be considered and what are the limitations and
advantages of each test.

--Which DNA testing laboratory should be selected to do the testing.

--The possible results and the meaning of each of those possible results.

--Whether samples from additional individuals are required for the
testing.

DNA Testing Laboratory

The DNA testing laboratory, in addition to serving as a consultant to the
attorney(s), the defendant, and/or the judge, has an obligation to perform
quality DNA tests according to accepted procedures and to interpret and
report the results accurately and without bias. The laboratory expert may
be required to present the test results and the conclusions derived from the
test results in court.

Considerations for Selecting a Laboratory for DNA Testing

There are many issues that may need to be considered when selecting a
laboratory to perform DNA testing in connection with a postconviction
proceeding. Some of these issues are outlined below:

What DNA tests are available in the laboratory?

The DNA tests available in a laboratory need to be considered when
selecting a laboratory for testing postconviction relief samples. Several
questions that should be addressed are:

What is the size and type of the sample?

The size and type of the sample will determine which DNA tests can be
performed. Samples available for testing are often quite small and may not
have been properly stored, which may have caused the degradation
(breaking down) of the DNA. Either of these situations will make the
samples unsuitable for RFLP testing (see chapter 3 for further information
on RFLP testing); therefore, the selected laboratory must have PCR
testing capabilities. If the DNA is severely degraded, or the sample to be
tested is a hair shaft or dried bone, PCR testing of nuclear DNA may not
yield results, and a laboratory that performs mitochondrial DNA testing
should be considered.

What is the level of discrimination required in the testing?

If the desired testing outcome is to simply distinguish one known
individual from another known individual (e.g., the consensual partner
from the perpetrator in a sexual assault case), then the discriminatory
capabilities of the test methods available in the laboratory may not matter.
However, if the test must be highly discriminatory so as to eliminate
falsely accused individuals, particularly if any individuals are related, then
the discrimination capabilities of the tests available in the laboratory
should be considered. A laboratory should be selected that has the testing
capabilities to address the level of discrimination required. 

Have samples been tested previously that will be used for comparison
purposes?

If the samples to be tested will be compared with results from samples
tested previously (e.g., known individuals in convicted offender databases,
samples from other possible serial sexual assault cases, results from
samples tested in the laboratory selected by opposing counsel), then the
selected testing laboratory must have the appropriate tests available so that
the data may be compared.

Will the test results be compared to those in a DNA database?

If the defendant is found to be innocent of a crime for which he or she was
convicted based on being excluded as the donor of the DNA from a
relevant sample, then the prosecutor may want to compare the DNA test
results to those in databases of convicted offenders (e.g., CODIS) to help
identify the true perpetrator. In this situation, it will be important to use
DNA tests compatible with the database to be used for comparison
purposes. 

What experience does the laboratory have?

A laboratory should be selected that has experience using the particular
DNA test method to be used on the type(s) of forensic samples that will be
analyzed in the postconviction relief case. Information regarding
validation studies performed by the laboratory and its history of obtaining
reliable results on samples similar to those being tested in the
postconviction case with that test method may be requested. 

Is there an expert(s) available for consultation and testimony?

The experience and availability of experts from the laboratory to assist the
attorneys and the court in decisions regarding the appropriate samples to
be tested, the test methods to be used, the meaning of the results,
chain-of-custody issues, and the need for testing additional samples from
other individuals should be considered. It may also be important to
consider the qualifications of the expert(s) and his or her experience in
presentation of DNA data to the court.

Is the laboratory accredited?

Accreditation is a process in which a laboratory undergoes a review and
onsite inspection by individuals from other DNA testing laboratories. This
process generally requires a review of the procedures followed in the
laboratory for DNA testing, security, evidence handling, protocol
validation, and documentation of results, proficiency testing, and quality
assurance to determine if they meet accepted guidelines. The laboratory is
accredited if it meets the specified criteria for accreditation. Other review
processes include certification and internal and external audits of the
laboratory.

Does the laboratory do testing for the prosecution or the defense?

It may be important to consider the laboratory's policies regarding those
for whom it does testing. Some laboratories may only be available for
testing by the State or by the defense. Some laboratories may be retained
by either the defense or the prosecution but may not be able to work for
both parties jointly; for instance, a particular laboratory's policy may
preclude a prosecutor and defense counsel from agreeing to share
decisions about testing and to both receive test results. The perceptions of
bias in the testing laboratory may also require consideration.

What level of confidentiality does the laboratory maintain?

The laboratory's policies regarding confidentiality and discovery may
need to be considered. Although it is recommended that all results from
postconviction relief testing be available to the prosecution, the defense,
and the court, there may be circumstances in which the results of the
testing must remain confidential. It may also be important to understand if
the test results from a particular postconviction case will be usable in
other ongoing investigations of unsolved cases. For example, will the
defendant's DNA profile be entered into any laboratory or State database
for future comparison purposes?

Is the laboratory a public or private laboratory?

This may be an important consideration for determining whether the
laboratory can be retained by either the prosecuting or defense attorney or
both. It may also affect whether the counsel who did not request the DNA
tests has access to the laboratory's experts for consultation, the availability
of expert testimony and discovery, the cost of testing, and confidentiality
issues.

What materials are available from the laboratory for discovery purposes?

At times, an attorney, an expert, or the court may request documentation
of the DNA tests performed in a postconviction case, or information about
quality control/assurance, chain of custody, validation studies, proficiency
tests, and/or information regarding the databases used. It may be
important to consider what materials are available from a laboratory
before doing the DNA testing if this could become an issue in a particular
case.

What is the laboratory's policy for retaining untested portions of samples
and/or DNA extracted from a sample?

Samples tested in connection with postconviction requests are often quite
old and small, particularly if RFLP testing had been attempted previously.
There may only be a sufficient sample to do a limited number of tests. In
this situation, it is important to understand the laboratory's policy
regarding destruction of the entire piece of evidence versus retention of a
portion of the untested sample as well as a portion of the extracted DNA
for possible future testing. The laboratory should test only the amount of
sample needed to obtain reliable results and should retain any untested
sample and/or extracted DNA whenever possible so that repeat or
additional testing can be performed at a later time. (See the section,
Retention of Samples for Future Testing, below, for further discussion.)

Does the laboratory permit outside experts to observe testing?

Samples tested in postconviction relief cases are often limited in size (e.g.,
a single hair root or a very small bloodstain) and cannot be divided prior
to isolating the DNA from the sample. Since the sample will be destroyed
during DNA testing, if there is only enough sample for one test, the
attorney who did not select the testing laboratory may request that an
expert be permitted to observe the DNA testing. Some States have statutes
or case law permitting a defendant the right to have the testing witnessed
when evidence will be consumed (e.g., Colorado, California). In these
situations, it will be important to select a laboratory that permits outside
experts to observe the testing and to understand its policies concerning
outside expert witnesses.

Has the laboratory done previous testing in this case?

For continuity in testing or for consideration of potential bias, it may be
important to consider whether the laboratory has already been involved in
testing for the case.

Selection of Samples for Testing

Care should be taken in selecting a single sample (or at least the minimum
number of samples) for testing that will give meaningful/useful results for
a particular case. There is no point in testing samples in category 5 cases.
(See discussion in chapter 3, Determining Which Samples to Test).
Criteria for selection of the sample may include: 

--Which sample would prove innocence if the defendant is excluded as a
donor.

--Which sample is of sufficient size and quality to likely give reliable
and interpretable test results.

--Which sample is of sufficient size to permit repeat or additional testing
at a later time.

--Which probative sample has been collected, preserved, and handled
appropriately to ensure the integrity of the sample results.

--Which sample has sufficient chain-of-custody documentation.

--Are additional samples available that have not been evaluated
previously? (See discussion in chapter 3 on reasons for inconclusive
results.)

The availability of and necessity for samples from known individuals who
should be tested for exclusionary purposes will need to be carefully
considered. For example, in sexual assault cases where the defendant is
excluded as a donor of the DNA, it is imperative that a sample from the
victim and any known consensual partner(s) be tested in order for that
exclusionary result to provide exculpatory evidence. Additionally, testing
of the victim's sample in sexual assault cases can serve as a built-in
control to confirm that the testing has been performed correctly and that
the questioned sample is, in fact, linked to that victim.

Retention of Samples for Future Testing

It is highly recommended that samples be split whenever possible before
and during the testing process. The laboratory should only test the amount
of sample needed to obtain reliable and interpretable test results; any
untested sample should be retained for possible future testing. Once DNA
is obtained from a sample, the laboratory should assess the quality and
quantity of the DNA, whenever possible, and consult with the individual
who submitted the evidence regarding tests to be done. Again, only the
amount of DNA required to obtain reliable and interpretable test results
should be consumed in the testing; any remaining DNA should be
preserved for future testing. The preserved and untested sample remains
available for:

--Repeat testing by opposing counsel. The prosecuting attorney or the
defense attorney may request a portion of the untested sample to repeat
the testing or have additional testing done in a laboratory of his or her
choice.

--Retesting if there is a problem. If a problem arose in interpreting the
results, or an error occurred during the first test, an untested portion of the
sample will be available to repeat the test.

--Additional testing to exclude a falsely accused individual. Testing at
additional regions of the DNA may be required to exclude a falsely
accused individual. Untested areas of the sample or remaining DNA may
be used for these additional tests.

--Additional testing to aid in the interpretation of the test results. In
situations where more information would be helpful for interpreting the
test results, testing at additional regions of the DNA is advised. For
example, the additional tests could confirm that the DNA sample contains
a mixture of DNA from two or more individuals and may aid in
determining whether the defendant can be excluded as one source of the
DNA.

--Future testing when new technologies become available. A portion of
the sample and the DNA should always be retained, whenever possible,
for testing in the future when additional technologies become available.
Many samples that proved inconclusive with RFLP testing have been
retested using PCR and the results have been exonerative.[21] In contrast,
samples that were consumed during RFLP testing are now not available to
the defendant for PCR testing. Samples that were inconclusive with
nuclear PCR testing may be suitable for mitochondrial DNA testing and
could lead to exonerations in the future. Other tests not now available
could be used in the future to confirm convictions or to exonerate
defendants.

--Additional testing to aid in identification of the perpetrator when the
convicted individual has been excluded. If the DNA test performed in a
postconviction relief case results in the exclusion of, and thereby
establishes the innocence of, the convicted individual, the prosecutor may
require additional testing of the evidence sample to aid in the
identification and prosecution of the real perpetrator of the crime.

Quality Assurance Standards for Forensic DNA Testing Laboratories and
Technical Working Group on DNA Analysis Methods (TWGDAM)
Guidelines: Validation With Nonprobative Evidence

The DNA Advisory Board has issued "Quality Assurance Standards for
Forensic Testing Laboratories" and the Technical Working Group on
DNA Analysis Methods (TWGDAM) has made recommendations for a
laboratory doing forensic DNA testing. Both of these documents
(Standard 8.1.3 and Guideline 4.1.5.8) advise that validation of any new
DNA test system include testing with nonprobative evidence samples. The
purpose is to provide experience with and an understanding of how
forensic samples perform with a new test system. Different definitions of
nonprobative evidence have been used by crime laboratories, including
adjudicated cases (convictions) or cases where the defendant confessed to
the crime. When laboratories are training analysts and/or validating new
DNA test systems, discretion should be used in selecting samples from
"nonprobative evidence" samples. To prevent the unfortunate and
unnecessary destruction of evidence that may be important in a
postconviction relief proceeding, the following criteria are provided for
the selection of test samples from actual forensic cases:

--Only select samples where sufficient original and untested evidence
samples will remain to do a minimum of two to three DNA tests using
currently available DNA technology. For example, if four vaginal swabs
remain after successfully using one for RFLP testing previously, then one
to two swabs could be used for validation studies because the one untested
swab would be sufficient for several PCR tests. Similarly, a portion of a
large bloodstain could be used for validation studies without jeopardizing
any future testing of the stain.

--Only test samples that are less informative regarding the crime than
other samples. For example, if several samples containing sperm have
been associated with a sexual assault, select the sample for validation
studies that would be duplicative and less informative than another
sample, such as a panty crotch or a semen stain on a blouse, rather than
the vaginal swab. Caution is advised because making these determinations
requires specific information regarding the crime, such as whether the
perpetrator ejaculated in the vagina, whether there were previous
consensual partners, which m ay cause mixed DNA results from the
vaginal swab and make the swab the less informative sample, or whether
there were multiple assailants, in which case every semen stain may be
probative.

--Use DNA isolated from previous validation studies whenever possible
rather than consuming additional evidence in a case.

-------------------------------

Glossary

ABO blood typing: A commonly used genetic typing test that uses
antibodies to detect variations on the surface of human red blood cells.
Individuals are typed as having A, B, O, or AB type blood by testing
liquid or stains from body fluids (e.g., blood, saliva, vaginal secretions).
One out of every three randomly selected pairs of people have the same
ABO blood type.

Amelogenin: A gene present on the X and Y sex chromosomes that is
used in DNA identification testing to determine the gender of the donor of
the DNA in a biological sample.

CODIS: Combined DNA Index System. A collection of databases of DNA
profiles obtained from evidence samples from unsolved crimes and from
known individuals convicted of particular crimes. Contributions to this
database are made through State crime laboratories and the data are
maintained by the FBI.

D1S80: A region of the DNA on chromosome 1 that contains a 16-base
pair DNA sequence that is repeated in tandem from 14 to ~40 times; this
region has been commonly tested using PCR with the AmpFLP D1S80
PCR Amplification Kit for human identification testing.

D7S8: Polymorphic region of DNA on chromosome 7.

DNA: Deoxyribonucleic Acid. Often referred to as the "blueprint of life,"
DNA is the genetic material present in the nucleus of cells which is
inherited half from each biological parent. (See chapter 3 for additional
information.)

DNA profile: For an individual, the DNA types present at a particular set
of tested DNA regions.

DQA1 (DQa): A polymorphic gene in the Human Leukocyte Antigen
(HLA) region of chromosome 6 that has been well studied and analyzed
for many purposes including paternity testing, transplantation biology, and
human DNA identification testing. This region has been commonly tested
using the AmpliType [registered trademark] HLA DQa Forensic PCR
Amplification and Typing Kit and the AmpliType [registered trademark] 
PM + DQA1 Amplification and Typing Kit for human DNA identification
testing.

Exclusion: The elimination of an individual as the source of a biological
sample. This occurs when one or more types from a specific location in
the DNA of a known individual are not present in the type(s) for that
specific location in the DNA obtained from an evidence sample. (See
chapter 3 for additional information.)

Exemplar: A biological sample (e.g., blood, saliva) collected from a
known individual to be used for comparison to DNA test results from
evidence samples. Also referred to as a standard. (See chapter 3 for
additional information.)

GC: Group specific component (see PM).

GYPA: Glycophorin A (see PM).

HBGG: Hemoglobin G gammaglobin (see PM).

Inclusion: The inability to exclude an individual as a possible source of a
biological sample. This occurs when all types from a specific location in
the DNA of a known individual are also present in the types for that
specific location in the DNA obtained from an evidence sample. (See
chapter 3 for additional information.)

Inconclusive: A situation in which no conclusion can be reached regarding
testing done due to one of many possible reasons (e.g., no results
obtained, uninterpretable results obtained, no exemplar/standard available
for testing).

Laches theory: Undue delay in asserting a legal right or privilege.

LDLR: Low density lipoprotein receptor (see PM).

Mitochondrial DNA: The DNA found in the many mitochondria found in
each cell of a body. The sequencing of mitochondrial DNA can link
individuals descended from a common female ancestor. (See chapter 3 for
additional information.)

Nuclear DNA: The DNA found in the nucleus of a cell. DNA testing
using RFLP, DQA1 (DQa), PM, D1S80, or STRs screens nuclear DNA.

PCR: Polymerase Chain Reaction. A process used in DNA identification
testing in which one or more specific small regions of the DNA are copied
using a DNA polymerase enzyme so that a sufficient amount of DNA is
generated for analysis. (See chapter 3 for additional information.)

PM: (Also referred to as "polymarker"). A PCR-based test (AmpliType
[registered trademark] PM PCR Amplification and Typing Kit and
AmpliType [registered trademark] PM + DQA1 PCR Amplification and
Typing Kit) commonly used since 1994 for human DNA identification
testing. The kit types five specific regions of the DNA: LDLR (low
density lipoprotein receptor), GYPA (glycophorin A), HBGG
(hemoglobin G gammaglobin), D7S8, and GC (group specific
component).

Polymorphism: Variations in DNA sequences in a population that are
detected in human DNA identification testing.

Restriction enzyme: A protein used in RFLP testing that cleaves a
double-stranded DNA molecule at a specific DNA sequence (e.g., HaeIII
cleaves at GG down arrow CC).

RFLP: Restriction Fragment Length Polymorphism. A process used in
DNA identification testing in which size (fragment length) differences at
specific regions of the DNA are detected. (See chapter 3 for additional
information.)

STR: Short Tandem Repeat(s). Small regions of the DNA that contain
short segments (usually 2, 3, 4, or 5 bases long) repeated several times in
tandem (side-by-side). Thirteen STR sequences have been selected for the
Combined DNA Index System (CODIS). (See chapter 3 for additional
information.)

Substrates: Any background material upon which biological sample has
been deposited (e.g., clothing, glass, wood, upholstery).

TWGDAM: Technical Working Group for DNA Analysis Methods. An
organization made up largely of individuals from the FBI and public
crime laboratories that published guidelines for DNA identification
testing.

Y Chromosome: The DNA in the nucleus of a cell that is present only in
males. Testing of DNA from the Y-chromosome can be used to link males
descended from a common male ancestor.

-------------------------------

Appendix I

Resources

Science

American Society of Crime Laboratory Directors
c/o NFSTC, SPJC Allstate Center
3200 34th Street, South
St. Petersburg, FL 33711
Phone: 813-341-4409
http://www.ascld.org

DOE Human Genome Program
Department of Energy, Life Sciences Division
Office of Biological and Environmental Research
U.S. Department of Energy
19901 Germantown Road, SC-72
Germantown, MD 20874-0963
Phone: 301-903-5468
http://www.er.doe.gov/production/ober/HELSRD_top.html

NIH National Center for Human Genome Research
Building 31, Room 4B 09
31 Center Drive
Bethesda, MD 20892
http://www.nchgr.nih.gov

Legal

American Bar Association
750 North Lake Shore Drive
Chicago, IL 60611
Phone: 312-988-5000
Criminal Justice Section
740 15th Street N.W.
Washington, DC 20005
Phone: 202-662-1500
http://www.abanet.org

American Prosecutors Research Institute
99 Canal Center Plaza, Suite 510
Alexandria, VA 22314
Phone: 703-549-4253
http://www.ndaa-apri.org/apri/

Association of Federal Defense Attorneys
8530 Wilshire Boulevard, Suite 404
Beverly Hills, CA 90211
Phone: 310-854-5135
http://www.afda.org

Conference of State Court Administrators
c/o National Center for State Courts 
300 Newport Avenue
Williamsburg, VA 23185
Phone: 757-253-2000
http://www.ncsc.dni.us/COSCA

Innocence Project
Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY 10003
Phone: 212-790-0200
http://www.yu.edu/cardozo/law/innocent.html

National Association of Attorneys General
750 First Street N.E.
Suite 1100
Washington, DC 20002
Phone: 202-326-6000
http://www.naag.org

National Association of Criminal Defense Lawyers (NACDL)
1025 Connecticut Avenue N.W., Suite 901
Washington, DC 20036
Phone: 202-872-8600
http://www.criminaljustice.org
http://www.nacdl.org

National Center for State Courts
300 Newport Avenue
Williamsburg, VA 23185
Phone: 757-253-2000
http://www.ncsc.dni.us

National District Attorneys Association
99 Canal Center Plaza
Alexandria, VA 22314
Phone: 703-549-9222
http://www.ndaa-apri.org

National Legal Aid & Defender Association
1625 K Street N.W.
Washington, DC 20006
Phone: 202-452-0620
http://www.nlada.org

Victims

National Center for Victims of Crime
2111 Wilson Boulevard, Suite 300
Arlington, VA 22201
Phone: 703-276-2880
E-mail: ncvc@ncvc.org
http://www.ncvc.org

National Coalition Against Sexual Assault
125 North Enola Drive
Enola, PA 17025
Phone: 717-728-9764
http://www.ncasa.org

National Organization of Parents of Murdered Children, Inc.
100 East Eighth Street, B-41
Cincinnati, OH 45202
Phone: 888-818-7662
http://www.pomc.com

Office for Victims of Crime
U.S. Department of Justice
810 Seventh Street N.W.
Washington, DC 20531
Phone: 202-307-5983
http://www.ojp.usdoj.gov/ovc

Office for Victims of Crime Resource Center
Box 6000
Rockville, MD 20849-6000
National Criminal Justice Reference Service (NCJRS)
Phone: 800-627-6872 
TTY: 877-712-9279
http://www.ncjrs.org 

General

National Institute of Justice
810 Seventh Street N.W.
Seventh Floor
Washington, DC 20531
Phone: 202-307-2942
http://www.ojp.usdoj.gov/nij

National Criminal Justice Reference Service (NCJRS)
P.O. Box 6000
Rockville, MD 20849-6000
Phone: 800-851-3420 or 301-519-5500
TTY Service for the Hearing Impaired: (toll free) 877-712-9279; (local)
301-947-8374

Convicted by Juries, Exonerated by Science: Case Studies in the Use of
DNA Evidence to Establish Innocence After Trial, Research Report, by
Edward Connors, Thomas Lundregan, Neal Miller, and Tom McEwen.
Washington: DC: U.S. Department of Justice, Office Justice Programs,
National Institute of Justice, 1996. NCJRS, NCJ 161258.

DNA Technology in Forensic Science (NRCI). Written by a committee of
the National Research Council, it is the first report by this group, which
largely endorsed DNA typing but balked on the statistical issues over a
concern for possible differences in different populations and suggested
ceiling numbers. Washington, D.C.: National Academy Press, 1992.

The Evaluation of Forensic DNA Evidence (NRCII). Written by a
committee of the National Research Council, it is the second report by this
group, which focuses mostly on statistics, rejecting the need for the
previously suggested ceiling methods. Washington, D.C.: National
Academy Press, 1996.

"Reference Guide on Forensic DNA Evidence," by David H. Kaye and
George F. Sensabaugh, Jr., in Reference Manual on Scientific Evidence,
2nd Edition. Washington, D.C.: Federal Judicial Center, forthcoming.

-------------------------------

Appendix II

State Statutes on Notification of Victims Victims' Rights: Notification,
Consultation, Attendance, and Participation After Trial

The Project

In 1998 the Vera Institute of Justice began an extensive review of
Victims' Rights legislation in all 50 States. Employing a standardized
215-item coding form, our legal analysts evaluated more than 10,000
pages of legislation concerning victims' rights to notification,
consultation, participation, restitution, compensation, and services. The
results of this evaluation are currently being assembled in a large research
database that will include information about victims' rights at all stages of
the criminal justice process.

With this project for the Office for Victims of Crime (OVC), we were
able to focus particularly on legislative provisions regarding victims'
rights in the post-trial phases of the criminal justice process.

The information presented is based only on a review of legislation. It does
not address the implementation of victims' rights through State
regulations or established practices.

The Tables

The seven tables included here are:

--Table 1. Defining Victim--Notification and Participation. Looks at the
definition of crimes to which notification and participation rights apply.
The definition operating in these cases generally applies to consultation
and the right to attend as well. The chart does not include definitions of
the individuals to whom the rights apply since they are generally
consistent for all States. They include the person affected by the crime,
guardians of a minor or incompetent, and the immediate family of a
deceased victim. The definitions of family vary slightly by State, being
broader or narrower. The chart also excludes routine and obvious
limitations. For example, most States exclude those arrested or in custody
for the crime from the definition of victim.

--Table 2. Notifications Related to Sentencing. Provides information
about notification rights relevant to the sentencing phase of the process.
Where the legislation provides specific information about deadlines or
officials responsible for notification that information is included in the
table.

--Table 3. Notification--Postsentencing Proceedings. Affords a view of
notification after sentencing proceedings, including details and
qualifications wherever possible.

--Table 4. Notification--Offender Death, Escape, or Release. Offers
information about notifications related to victim notification of offender
release, escape, or death. This table distinguishes between automatic
notifications and those provided only to victims who make a special
request. Merely keeping a current telephone number or address on file was
not treated as a request.

--Table 5. Consultation--After the Trial. The large number of blank cells
for the postsentencing phases indicates that consultation during this phase
is rarely addressed directly in the legislation.

--Table 6. Right to Attend--Post-Trial Proceedings. Refers to rights to
attend post-trial proceedings. This chart does not include certain routine
qualifications, including the exclusion of victims held in custody from the
right to attend. In this chart, again, the large number of empty cells
indicates the limited detail provided about the victims' right to attend.
Often this legislation indicates rights in general language and makes no
effort to provide details.

--Table 7. Participation--Sentencing and Postsentencing Proceedings.
Participation means the right to provide victim impact statements, either
directly for that proceeding or indirectly, in the sense that a statement
made at earlier proceedings must be forwarded to later ones.

A general note: All States have been evaluated for all questions. A blank
cell indicates that researchers were unable to identify legislation
addressing that issue.

Perry Deess, Ph.D., Principal Investigator, The Vera Institute of Justice

-------------------------------

Appendix III

Sample DNA Test Brochure

Understanding DNA Evidence: A Guide for Victims and Advocates

Stories about the use of DNA evidence to convict or exonerate defendants
in sexual assault or murder cases have appeared in the media with
increasing frequency. It has become apparent, to both criminal justice
professionals and the public, that DNA evidence is playing a larger role in
determining guilt and innocence. While the testing of DNA has become
commonplace in many criminal cases, DNA technology is relatively new
and is improving rapidly. Evidence that is impossible to test for DNA
today may be routinely tested in the future. It is important for victims to
understand the potential significance of DNA evidence in their cases.

What is forensic evidence?

DNA is only one type of forensic evidence that may be used in an
investigation. Forensic evidence consists of things that can be analyzed to
help establish the identity of the assailant by eliminating suspects, to prove
the victim or assailant was at a certain place, or to help investigators find
out how the crime was committed. In sexual assault cases, the forensic
evidence that may be helpful are hair, fibers, fingerprints, saliva, semen,
and blood recovered from clothing, a sexual assault kit, or a crime scene.

What is DNA evidence?

DNA is the abbreviation for deoxyribonucleic acid, which stores the
genetic code of the human body--our hereditary blueprint passed on to us
by our parents. DNA determines our personal characteristics, such as eye
and hair color, height, and bone structure. DNA is found in saliva, skin
tissue, blood, the root and shaft of hair, bone, and semen. DNA is useful
because it is present in all cells, it is the same throughout the body, and it
does not change in the course of a person's life. For each individual
(except identical twins) the sequence (the order of the DNA building
blocks) is different in particular regions of the cell, making each person's
DNA unique. If properly preserved, DNA from bones or body fluid stains
can be tested after many years in older cases in which questions of identity
remain unresolved or disputed. In many cases, these substances can be
analyzed to reliably link criminals to crimes or clear them as suspects.

How is DNA and other forensic evidence collected?

The way DNA evidence is collected and preserved is critical to the
success of its use in criminal cases. DNA evidence is particularly
important in sexual assault cases, so it is important for sexual assault
victims to notify the police before showering or changing clothing after an
assault. Semen may be on the clothing, bedding, or still in the vaginal
region. The skin of the assailant may be found under a victim's
fingernails. A broken fingernail left at the scene by the perpetrator may
also be analyzed for DNA evidence. Victims should not wash or throw
away anything else that the assailant's semen may have come into contact
with--bed sheets or covers, rugs, cushions, wash cloths, tissues, or
condoms. If the assault happened in a house or apartment, the police may
be able to collect fingerprint and other evidence from the scene.

The police will collect evidence from the scene of the crime, and evidence
that is on or in a victim's body can be collected by a physician or sexual
assault nurse examiner during an examination after a sexual assault. A
medical examination is conducted to make sure the victim is okay, to treat
any injuries, to test for sexually transmitted diseases, and to look for and
collect any evidence. The doctor or nurse will use sterile cotton swabs to
remove fluids which might contain semen from the victim's vagina or
mouth or other parts of the body touched by the assailant. If the victim
scratched the assailant, they will scrape under her fingernails to recover
skin cells. They may also collect head and pubic hairs and take a blood
sample. In most cases, the victim's clothing will be collected, so the doctor
or nurse should provide something else to wear. In cases of homicide,
DNA evidence may be collected from the crime scene and from the body
of the victim by the pathologist conducting a forensic autopsy. 

What do the police do with the evidence they collect?

Hair and fiber. Often in sexual assault cases, because the victim and
assailant have come in close contact, hairs and fibers from clothing,
carpet, bedding, or furniture will be transferred. Hairs and fiber are
compared with known samples (taken from the victim and the assailant) to
determine whether there are any matches. Hair and fiber evidence can be
very helpful in proving that there was contact between an assailant and a
victim. 

Saliva, blood, skin, and semen. Saliva, blood, and semen are generally
tested by using DNA analysis. If there is enough high-quality DNA, a
comparison can be done that can establish whether the suspect is or is not
a likely source of the semen taken from the victim's body or other
evidence. DNA evidence is not available in every case, or the evidence
may have been subjected to conditions that contaminated or degraded it,
but it is very powerful evidence when it is available. In some cases a
blood sample from the victim's husband, boyfriend, or other sexual
partner may be needed in order to account for all of the DNA that is found
on the victim or at the scene.

How does DNA testing work?

There are several chemical processes used in the analysis of DNA
evidence. While these processes are very reliable, sometimes results
cannot be obtained or are inconclusive if there is not enough evidence to
analyze or if the evidence has been contaminated or improperly preserved.
The types of processes and the technology used in processing DNA
evidence are increasing in sophistication and ability to distinguish
individuals, so it may be possible to test evidence in the future in ways
that are not possible today. DNA testing can take weeks or months to
complete and can be expensive for some agencies. During a criminal
investigation, the costs are paid by the police department or the
prosecutor's office. 

The police will need a sample of the victim's DNA to compare other DNA
evidence against. In sexual assault cases, it usually will be collected at the
time a rape kit is completed. A sample of DNA can also be collected from
a blood sample or from swabbing the inside of the mouth. DNA samples
will be collected from the suspect. Samples may also need to be collected
from the victim's partner, or anyone else with whom she had sexual
contact within the several days prior to the assault. 

There are two types of DNA tests that may be performed, depending upon
the type of evidence available.

--Restriction fragment length polymorphism (RFLP) testing usually
requires a sample that has 100,000 or more cells (an example would be a
dime-sized bloodstain) and contains DNA that is not degraded (broken
into smaller fragments). RFLP has been widely used since the late 1980s
and is able to exclude wrongly accused individuals with only one or a few
test results.

--Polymerase chain reaction (PCR) testing can be conducted on DNA
from different parts of the cell: the nucleus and the mitochondria. PCR
testing of DNA from the nucleus of the cell can be done on small samples
containing 50 to 100 cells or more (for example, a visible dot of blood or
a single hair root). PCR testing on nuclear DNA has been available since
the early 1990s. It can be used on DNA that has been degraded (samples
that have been improperly stored or aged) and has a high degree of
reliability. Testing on DNA from the mitochondria of the cell is generally
conducted on samples that are unsuitable for RFLP or PCR testing of
nuclear DNA, such as dried bones or teeth, hair shafts, or any other
samples that contain very little or highly degraded nuclear DNA. At
present, mitochondrial DNA testing is available only in a limited number
of laboratories. 

What do DNA testing results mean?

There are different types of results that can occur in DNA testing.
Prosecutors and investigators should be able to explain the meanings of
these potential results in more detail.

--Inclusion means the test may indicate that DNA found at the scene of
the crime is that of the suspect. In some cases the result may be
"inclusion" but the results are not helpful in the criminal case. For
example, results from samples taken from the victim may be consistent
with the DNA of the victim. The results do not mean the suspect was not
present and did not commit the crime--only that the substance tested did
not come from the suspect. 

--Exclusion is when the results obtained from the sample from a suspect
or known individual are not present in the results from the unknown crime
scene sample. The test results show that the sample found at the scene
does not belong to the suspect. In some cases, it may be necessary to do
additional testing for that exclusion to be meaningful or to provide
evidence for exoneration. An example would be when the suspect is
excluded as the source of the DNA in a sexual assault, but no samples
have been taken from the victim and/or her consensual partners. In other
words, the test may show that the sample was from the victim or a family
member or other person with whom he or she had contact around the time
of the crime.

--Inconclusive results include situations in which no results were
obtained from the sample because there was not enough DNA to test or in
which results are obtained from an unknown sample from the crime scene
but there are no samples from known individuals or suspects to test for
comparison. Also, the results may be inconclusive because the sample is
not in suitable shape for testing or contains a mixture of DNA from
several individuals (e.g., from a sample taken from the victim of a gang
rape). 

DNA Evidence: Closed Cases and Unsolved Cases

DNA is a useful and neutral tool in the search for justice. It can cut both
ways: DNA evidence can help prove innocence or guilt. News reports
about convicted persons being released after old evidence is tested for
DNA appear regularly. Many sexual assault and homicide cases occurred
before DNA testing was an option or was widely recognized. In some
cases, convicted defendants who maintain their innocence have sought to
have evidence tested to see if the DNA from that evidence matches their
own. More than 50 such convicted persons have had their convictions
overturned or have been released because DNA testing showed they could
not have committed the crime. Many of these cases involved convictions
that were based primarily upon eyewitness identification of the alleged
perpetrator. DNA typing is now being used to assist investigators in
solving crimes in which a suspect has not readily been identified. DNA
has been used to connect a particular perpetrator with other unsolved
assaults.

Most States have created, or plan to create, databases that store DNA
profiles of convicted perpetrators. The FBI created a system called the
Combined DNA Index System (CODIS) which is a collection of DNA
databases from forensic laboratories around the United States. The DNA
profiles of individuals previously convicted of serious crimes such as rape
and homicide will be maintained in computer files and compared to DNA
profiles collected from cases with no suspects. It is hoped that local
laboratories will tie into State databases that allow comparisons between
the local laboratories. The national database, operated by the FBI, will
link together the profiles from the databases of each of the participating
States. As of April 1998, the CODIS system has successfully made 250
DNA matches within or between States that currently use CODIS. The
CODIS system will have an impact on the identification of serial rapists
who have committed crimes in more than one jurisdiction. Whether it
helps absolve or convict individuals, DNA evidence will play an
increasingly important role in solving crimes in the future.

-------------------------------

Appendix IV

Working Group on Postconviction Issues

Chair:

Ronald S. Reinstein is the associate presiding judge of the Superior Court
of Arizona. He was appointed to the bench in December 1985 and served
as presiding criminal judge from 1990 to 1998. Prior to his appointment,
he was a deputy Maricopa County attorney from 1974 to 1985, serving as
supervisor of the Criminal Trial Unit and as the head of the Sex Crimes
Unit. In 1998, Judge Reinstein was named by the State Bar of Arizona as
the recipient of the James A. Walsh Award for the outstanding judge in
Arizona. In 1999 he was selected as the first recipient of the State Bar
Public Lawyer's Section's Judicial Award of Excellence. He has also
received the Henry Stevens Outstanding Judge Award from the Maricopa
County Bar Association, the Arizona Attorney General's Distinguished
Service Award, the Society of Professional Journalists' Sunshine Award,
and the Lecturer of Merit Award from the National College of District
Attorneys. Additional awards include Awards of Excellence and
Achievement from the Governor's Children's Justice Task Force,
Maricopa County Victim-Witness Program, and Parents of Murdered
Children. Judge Reinstein serves as a member of the National Commission
on the Future of DNA Evidence, the National Advisory Board of the
Justice Department Center for Sex Offender Management, and the
Governor's Children's Justice Task Force. He has served on the faculty of
the National College of District Attorneys, the National Juvenile and
Family Court Judges College, the National Center for the Investigation
and Prosecution of Child Abuse, the National Institute for Trial Advocacy,
the Arizona Prosecuting Attorneys Advisory Counsel, 

Arizona Judicial College, the Einstein Institute for Science, Health, and
the Courts, the National Center for Effective Public Policy, the American
Probation and Parole Association Training Institutes, American Judicature
Society Symposiums, and Valley Leadership. Judge Reinstein is a
graduate of Indiana University School of Law.

Christopher H. Asplen is an assistant U. S. attorney in the U. S. Attorney's
Office for the District of Columbia. He is currently detailed as the
executive director of the National Commission on the Future of DNA
Evidence, a commission established at the request of the U. S. Attorney
General and administered through the National Institute of Justice. Prior
to joining the U. S. Attorney's Office, Mr. Asplen was the DNA unit
director for the American Prosecutors' Research Institute/National District
Attorneys Association. He has educated prosecutors, defense attorneys,
and judges across the country on the science and courtroom application of
forensic DNA. Prior to moving to Washington, D.C., Mr. Asplen was a
senior deputy district attorney in Pennsylvania specializing in the
prosecution of child sexual abuse. Mr. Asplen received his undergraduate
degree from West Chester University and his J. D. from the Dickinson
School of Law.

Dennis D. Bauer, a senior deputy district attorney in the Office of the
District Attorney, Orange County, California, has been a deputy district
attorney since 1979. In 1987, Mr. Bauer began to specialize in the
prosecution of cases involving sexual assault and child abuse. He has been
a leading advocate for the use of DNA analysis and has served as special
counsel on DNA evidentiary hearings in jurisdictions in California. Mr.
Bauer has published numerous articles concerning DNA analysis in the
courtroom. As a faculty member of the American Prosecutors Research
Institute, he has lectured extensively on the utility, admissibility, and court
presentation of DNA evidence. Mr. Bauer also has been a guest lecturer at
the FBI Academy and has spoken before groups such as the Alabama
District Attorney's Association and the South Carolina Solicitors. He
received his undergraduate degree from Western Washington University
and his J. D. from the University of San Diego.

Margaret A. Berger is the Suzanne J. and Norman Miles professor of law
at Brooklyn Law School in New York, where she teaches evidence, civil
procedure, and courses on the interaction of science and law. She is the
coauthor of Weinstein's Evidence, the author of the "Evidentiary
Framework" in the Federal Judicial Center's Reference Manual on
Scientific Evidence (1994), and a coauthor of the Weinstein, Mansfield,
Abrams, and Berger Evidence Casebook (revised in 1997). She also has
published numerous articles on evidentiary issues. Professor Berger has
served as the reporter to the Advisory Committee on the Federal Rules of
Evidence, as a consultant to the Carnegie Commission on Science,
Technology, and Government, and as a member of the National Research
Council's Committee on DNA Forensic Science and Black and Smokeless
Powders. She received an A.B. magna cum laude from Radcliffe College
and a J.D. from Columbia University School of Law.

Kevin C. Curran is an assistant federal public defender in the office of the
Federal Public Defender for the Eastern District of Missouri, a position he
has held since 1996. Previously, he served for 8 years as director of the
newly formed Capital Litigation Division of the Missouri State Public
Defender System, and for 10 years as an assistant public defender for the
Missouri State Public Defender System in the St. Louis office. Mr. Curran
is an adjunct professor of law at St. Louis University, where he supervises
the Criminal Law Clinic and conducts a seminar in death penalty
litigation. He also is on the adjunct faculty at Washington University,
where he teaches trial advocacy. Mr. Curran graduated from St. Louis
University Law School in 1978.

Lisa Forman is currently the deputy director of the National Commission
on the Future of DNA Evidence and a program manager in the Office of
Science and Technology at the National Institute of Justice. Prior to
joining the National Institute of Justice, Dr. Forman worked for 8 years as
an associate director at Cellmark Diagnostics in Germantown, Maryland.
Dr. Forman has extensive experience in the application of forensic science
and population genetics. She earned her bachelor of science degree from
the University of California at Berkeley and her masters of arts and doctor
of philosophy in anthropology from New York University.

Geoffrey C. Hazard, Jr., is trustee professor of law at the University of
Pennsylvania Law School and sterling professor of law emeritus at Yale
University. He is also director emeritus of the American Law Institute
(ALI) and a member of the ALI Council. He served as ALI director for 15
years before stepping down and being elected to the ALI Council in 1999.
A graduate of Swarthmore College and Columbia University School of
Law, Professor Hazard received Columbia's 1999 Medal for Excellence.
He also received the American Judicature Society's 1999 Justice Award.
Professor Hazard began his career in private practice in Oregon, where he
was also deputy legislative counsel for the State of Oregon and executive
secretary of the Oregon Interim Committee on Judicial Administration. He
became a member of the law faculty of the University of California at
Berkeley in 1958, moved to the University of Chicago in 1964, and was a
member of the Yale faculty from 1971 until his retirement from Yale in
1994, when he became sterling professor of law emeritus. An authority on
civil procedure, trial practice, and legal ethics, Professor Hazard also has
been a visiting professor at Harvard, Stanford, the University of Michigan,
and Universite d'Aix-Marseille. During his tenure at Yale he served as 
associate, acting, and deputy dean of the Yale School of Organization and
Management. He was executive director of the American Bar Foundation
from 1964 to 1970. Professor Hazard is the author of numerous published
articles and books.

Barbara R. Morgan is the Solicitor of the Second Judicial Circuit.
Appointed to the position by the South Carolina governor in 1990, she
was elected Solicitor by popular vote in 1992 and re-elected 4 years later.
Prior to her appointment, she served as Assistant Solicitor for the Second
Judicial Circuit and Deputy Solicitor for the Second Judicial Circuit. Ms.
Morgan was the first full-time Assistant Solicitor for Darlington County in
the Fourth Judicial Circuit, served as city prosecutor and assistant city
attorney for Florence, South Carolina, and in the early 1980s, as law clerk
for the Honorable C. Anthony Harris. She was the first prosecutor in
South Carolina to present mitochondrial DNA in criminal court. Her
honors/awards include Victim Advocate of the Year for Outstanding
Service 1989; Aiken Jaycee's Boss of the Year, 1991; and most 
Distinguished Alumni Award from USC-Aiken, 1997. Current activities
include serving as vice chairman of the Governor's Youth Council,
1998-Present; and as member of the APRI Board of Directors. She has
also served as chairman of Growing Into Life-A Community
Collaborative, president of the Solicitor's Association, and chairperson of
the Advisory Committee to Review South Carolina Drug and Common
Laws. She received a B.A. from the College of Charleston in 1978 and
graduated from the University of South Carolina School of Law in 1981.

Barry C. Scheck currently serves as a professor of law and director of
clinical legal education at Cardozo Law School in New York. He has
served on the faculty of the National Institute of Trial Advocacy and
Defense Council and is coauthor of Raising and Litigating Claims of
Small Electronic Surveillance. Professor Scheck is a member of the
Committee on the Criminal Courts, Association of the Bar of the City of
New York. Through Cardozo's Criminal Law Clinic, he litigated--in the
trial courts and on appeal--a number of well-known cases that set
significant precedents, particularly in the areas of DNA fingerprinting and
family violence. Professor Scheck also teaches and organizes trial
advocacy programs for many public defenders' offices, bar associations,
and law firms across the country. Recently, he has focused his efforts on
developing materials for law students and practitioners in the area of legal
ethics and professional discipline. After graduating from law school in
1974, Professor Scheck was a staff attorney for 3 years with the Legal Aid
Society of New York. Professor Scheck earned his B.S. from Yale
University in 1971 and his J.D., M.C.P. from the University of
California-Berkeley.

Jane Siegel is an associate in the New York office of Winston & Strawn, a
Chicago law firm. She is the former executive director of the Innocence
Project, based at the Cardozo School of Law in New York, which uses
DNA testing to exonerate inmates who have been wrongfully convicted.
Ms. Siegel received a B.A. from the University of Pennsylvania in 1991
and a law degree from the University of Pennsylvania Law School in
1995.

Kathryn M. Turman is the Acting Director of the Office for Victims of
Crime (OVC), U.S. Department of Justice, a position she has held since
July 1998. Prior to joining OVC, she served as chief of the Victim
Witness Assistance Unit in the U.S. Attorney's Office. From 1993 to
1994, Ms. Turman was a senior associate in the Criminal Justice Services
Division of the Public Administration Service in McLean, Virginia, where
she directed a national training and technical assistance program to help
communities organize multiagency teams to handle child victim cases.
Ms. Turman was the Director of the Missing and Exploited Children
Program in the U.S. Department of Justice from 1991 to 1993, and served
as special administrative assistant to the late Senator John Heinz from
1987 to 1991. She is the author of Child Victims and Witnesses: A Guide
for Criminal Justice Professionals, published by the Department of Justice,
and Recovery and Reunification of Missing Children, published by the
Department of Justice and the National Center for Missing and Exploited
Children. She is on the national board of the American Professional
Society on the Abuse of Children and on project advisory boards for
several projects focusing on child victims. She has served on the
Washington, D.C., Child Death Review Team, the Regional Child
Fatalities Review Council, the D.C. Children's Advocacy Center Steering
Committee, and the D.C. Superior Court Family Violence Coordinating
Council.

Charlotte J. Word is deputy laboratory director for Cellmark Diagnostics
in Germantown, Maryland. She is an expert in DNA identification testing,
including supervising and analyzing validation studies and other research
in DNA identification and testifying in Frye hearings and trials. She holds
a B.S. from the College of William and Mary and a Ph.D. in microbiology
from the University of Virginia.

-------------------------------

About the National Institute of Justice 

The National Institute of Justice (NIJ), a component of the Office of
Justice Programs, is the research agency of the U.S. Department of
Justice. Created by the Omnibus Crime Control and Safe Streets Act of
1968, as amended, NIJ is authorized to support research, evaluation, and
demonstration programs, development of technology, and both national
and international information dissemination. Specific mandates of the Act
direct NIJ to: 

--Sponsor special projects, and research and development programs, that
will improve and strengthen the criminal justice system and reduce or
prevent crime. 

--Conduct national demonstration projects that employ innovative or
promising approaches for improving criminal justice. 

--Develop new technologies to fight crime and improve criminal justice. 

--Evaluate the effectiveness of criminal justice programs and identify
programs that promise to be successful if continued or repeated. 

--Recommend actions that can be taken by Federal, State, and local
governments as well as by private organizations to improve criminal
justice. 

--Carry out research on criminal behavior. 

--Develop new methods of crime prevention and reduction of crime and
delinquency. 

In recent years, NIJ has greatly expanded its initiatives, the result of the
Violent Crime Control and Law Enforcement Act of 1994 (the Crime
Act), partnerships with other Federal agencies and private foundations,
advances in technology, and a new international focus. Some examples of
these new initiatives: 

--New research and evaluation are exploring key issues in community
policing, violence against women, sentencing reforms, and specialized
courts such as drug courts. 

--Dual-use technologies are being developed to support national defense
and local law enforcement needs. 

--The causes, treatment, and prevention of violence against women and
violence within the family are being investigated in cooperation with
several agencies of the U.S. Department of Health and Human Services. 

--NIJ's links with the international community are being strengthened
through membership in the United Nations network of criminological
institutes; participation in developing the U.N. Criminal Justice
Information Network; initiation of UNOJUST (U.N. Online Justice
Clearinghouse), which electronically links the institutes to the U.N.
network; and establishment of an NIJ International Center. 

--The NIJ-administered criminal justice information clearinghouse, the
world's largest, has improved its online capability. 

--The Institute's Drug Use Forecasting (DUF) program has been expanded
and enhanced. Renamed ADAM (Arrestee Drug Abuse Monitoring), the
program will increase the number of drug-testing sites, and its role as a
"platform" for studying drug-related crime will grow. 

--NIJ's new Crime Mapping Research Center will provide training in
computer mapping technology, collect and archive geocoded crime data,
and develop analytic software. 

--The Institute's program of intramural research has been expanded and
enhanced. 

The Institute Director, who is appointed by the President and confirmed
by the Senate, establishes the Institute's objectives, guided by the priorities
of the Office of Justice Programs, the Department of Justice, and the
needs of the criminal justice field. The Institute actively solicits the views
of criminal justice professionals and researchers in the continuing search
for answers that inform public policymaking in crime and justice.