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Access To Post-Conviction DNA Testing

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Despite its ability to prove innocence, some courts will not consider newly discovered DNA evidence after trial.

• The traditional appeals process is often insufficient for proving a wrongful conviction. It is not uncommon for an innocent person to exhaust all possible appeals without being allowed access to the DNA evidence in his case.

• Sometimes it comes to light that DNA evidence available at the time of the defendant’s trial was never tested.

• The only way a person can access the DNA evidence associated with his criminal case, absent a protracted legal battle, is through post-conviction DNA testing access statutes.

Do all states have post-conviction DNA access statutes?

Although all 50 states have post-conviction DNA testing access statutes, many of these testing laws are limited in scope and substance.

View a map of DNA access laws in each state.

What are the common shortcomings of existing DNA access laws?

• Some laws present insurmountable hurdles to the individual seeking access, putting the burden on the wrongfully convicted person to effectively solve the crime and prove that the DNA evidence promises to implicate another individual.

• Despite the fact that approximately 30% of the nation’s 311 wrongful convictions proven by DNA involved a false confession, admission, or guilty plea, certain laws still do not permit access to DNA when the defendant originally pled guilty or confessed to the crime.

• Many laws fail to include adequate safeguards for the preservation of DNA evidence.

• Several laws do not allow individuals to appeal denied petitions for testing.

• A number of states fail to require full, fair and prompt proceedings once a DNA testing petition has been filed, allowing the potentially innocent to languish interminably in prison.

What key elements should be included in a DNA access law?

Most states have post-conviction DNA testing access statutes. For those that do not, or for those state statutes with deadlines for individuals seeking access, a federal law, the Justice For All Act (JFAA) of 2004 (H.R. 5107), provides financial incentives for states to allow permanent post-conviction DNA testing access to qualified defendants.

The Innocence Project recommends the following elements be contained in new statutes or existing statutes in need of amending:

• Include a reasonable standard to establish proof of innocence at the stage where an individual is petitioning for post-conviction DNA testing;

• Allow access to post-conviction DNA testing wherever it can establish innocence, even if the petitioner is no longer incarcerated, and including cases where the petitioner pled guilty or provided a confession or admission to the crime;

• Exclude “sunset provisions,” or absolute deadlines, for when access to post-conviction DNA evidence will expire;

• Enable judges to order comparisons of crime scene evidence against national and state-level criminal justice databases, including CODIS and IAFIS;

• Require state officials to properly preserve and catalogue biological evidence for as long as an individual is incarcerated or otherwise experiences any consequences of a potential wrongful conviction (e.g. probation, parole, civil commitment or mandatory registration as a sex offender), as well as to account for evidence in their custody;

• Disallow procedural hurdles that stymie DNA testing petitions and proceedings that govern other forms of post-conviction relief;

• Allow convicted persons to appeal from orders denying DNA testing;

• Require a full, fair and prompt response to DNA testing petitions, including the avoidance of debate around whether currently available DNA technology was available at the time of the trial;

• Avoid unfunded mandates by providing funding to DNA testing statutes; and

• Provide flexibility in where, and how, DNA testing is conducted.

Case in Point: Pennsylvania Man Originally Denied Access to DNA

In May of 1987, Bruce Godschalk was convicted of rape and burglary in Pennsylvania. The conviction was based primarily on eyewitness identification and a confession later proven to be false. Forensics techniques available at the time of the trial and used to test the semen from the crimes could not exclude Mr. Godschalk as the perpetrator. Following his conviction, Mr. Godschalk petitioned for access to DNA testing and was denied. After contacting the Innocence Project in 1995, which sought testing on his behalf, the District Attorney refused to allow access to the DNA evidence. It was not until November of 2000 that a Federal District Court granted access to the DNA testing. Delays in setting a testing protocol and delivering the evidence, in addition to some legal hurdles, deferred testing of the evidence until January of 2002. Mr. Godschalk was eventually excluded as the donor of the semen in the crimes and released from prison. Mr. Godschalk had spent seven of his fifteen years of incarceration fighting for access to DNA evidence. As a result of Mr. Godschalk’s case, Pennsylvania introduced and later passed a law creating access to DNA evidence.