Motions for Postconviction DNA Testing: Determining the Standard of Proof Necessary in Granting Requests

• Author: Anna Franceschelli
• Pages: 243-277

Page 243

Anna Franceschelli: I would like to acknowledge and thank James V. Canepa, Chief Deputy Attorney General at the Ohio Attorney General's Office, for sharing his knowledge and providing guidance on this article.

I Introduction to the Legal Issues of Postconviction DNA Testing

Deoxyribonucleic acid (DNA) evidence was first introduced in a United States court in 1986.¹ Seventeen years later, every United States jurisdiction now admits some type of DNA evidence.² Increasingly accepted, DNA technology is now widely used by police, prosecutors, defense counsel, and courts throughout the United States.³ "An unforeseen consequence of the introduction of DNA evidence [in criminal cases] has been the reopening of old cases."⁴ "Persons convicted of murder and rape before DNA profiling became available [or more advanced] have sought to have the evidence in their cases reevaluated using this new [or, in some cases, more advanced] technology."⁵ Since the introduction of DNA testing in criminal cases, more than sixty convictions in the U.S. have been vacated on the basis of DNA testing, with almost half of them occurring after 1996.⁶

DNA testing is remarkable to criminal cases in that it not only helps to convict, but also serves to exonerate.⁷ "In the United States, . . . DNA testing is for the most part used in rape and homicide prosecutions."⁸ In rape and homicide cases, bio material left in orifices is more dependable in terms of culpability because it conclusively places the depositor of the DNA at the scene and as violating the victim. Postconviction testing has Page 244 been requested and will continue to 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."⁹ The progress in the technology of DNA testing which occurred in the 1990s now makes it possible to obtain conclusive results in cases in which previous testing provided inconclusive results.¹⁰ The ability to produce different results in cases or to provide results where none existed before has created many legal issues regarding postconviction rights to newly discovered evidence. Courts have had to interpret the extent of these rights and their application to DNA testing and retesting. Now legislatures have embarked on implementing new measures to guide courts in their determinations of whether to grant requests for postconviction DNA testing.

The issue of admissibility of DNA testing in criminal proceedings has been debated in the courts for over a decade and "[r]egarding the underlying principles, there is ... no longer any question concerning the principle that DNA testing can be used to obtain identification information; admissibility hearings need no longer address this question."¹¹ A present concern of the courts is determining the standards for granting postconviction requests for DNA testing or retesting. The initial question the courts must answer is whether the petitioner is entitled to his or her request for DNA testing.¹² Next, the courts must determine how to analyze Page 245 the results; what weight should be afforded the determination that the results include or exclude the petitioner as the source or contributor of the DNA evidence, or that the results are inconclusive?¹³

Another consideration for the courts is what relief should be granted to the petitioner based on the results of the DNA tests.¹⁴ DNA alone does not prove guilt or innocence, as DNA is only one piece of the evidence used in a criminal trial against the defendant. DNA evidence alone tells us nothing without a backdrop of specific factual circumstances in an individual case. Obviously one's own DNA that comes from one's own clothing or bed sheets would not be determinative of establishing guilt without more facts. However, identifying one's DNA in an orifice of a neighbor's child would be determinative of establishing guilt. Judges must determine what the relevance of the DNA test is, as weighed against the other evidence in the case. The standard used in evaluating the results makes the circumstances surrounding the case critical.

The standard to use in determining the significance of the postconviction DNA tests is not as well established.¹⁵ The question remains as to what legal significance the DNA test results should have, and that, in great part, is determined by what standard of proof is required to be shown by the petitioner. It is well established that the standard for determining the guilt of a defendant in a criminal trial is guilt beyond a reasonable doubt. However, in order for DNA test results to have an impact on a postconviction case, DNA evidence must have been used in the case against the defendant as a means of convicting him or have gone untested because DNA technology was unavailable or unaccepted at the time of the trial.¹⁶ Determining what relevance the postconviction DNA test results will have on the case is further complicated because the ultimate analysis of the impact of DNA evidence upon old jury verdicts is done without input from the original jury. Page 246

In November 1987, in one of the first uses of DNA in a criminal case in the United States, a Circuit Court in Florida convicted Tommy Lee Andrews of rape after DNA tests matched his DNA from a blood sample with that of semen traces found in a rape victim.¹⁷ The West Virginia Supreme Court of Appeals, in the case of State v. Woodall, was the first state high court to rule on DNA evidence admissibility at trial.¹⁸ The court accepted DNA testing by the defendant, but inconclusive results failed to exculpate Woodall.¹⁹ Subsequent DNA testing determined that Woodall was innocent, and he was released from prison.²⁰

The multiple murder trials in Virginia of Timothy Wilson Spencer were the first cases in the United States where the admission of DNA evidence led to guilty verdicts in a death penalty case.²¹ The Virginia Supreme Court upheld the murder and rape convictions of Spencer, who had been convicted on the basis that DNA testing of the semen found in several victims matched DNA that had been taken from Spencer.²²

The first case that seriously challenged a DNA profile's admissibility was People v. Castro,²³ in which the New York Supreme Court exhaustively examined numerous issues relating to the admissibility of DNA evidence. The court in Castro denied the prosecution's motion to introduce DNA evidence to show that the blood on the defendant's wristwatch was blood of the pregnant mother victim.²⁴ The Castro ruling Page 247 showed support for the proposition that DNA identification evidence of exclusion is more presumptively admissible than DNA identification evidence of inclusion.²⁵

In Schwartz v. State²⁶ the Supreme Court of Minnesota refused to admit DNA evidence analyzed by a private forensic laboratory. The court noted that the laboratory did not comply with appropriate standards and controls. Additionally, the court was troubled by the laboratory's failure to reveal its underlying population data and testing methods, holding that such secrecy precluded replication of the test.²⁷

A summary of the history of DNA testing shows that "courts have successfully challenged the improper application of DNA scientific techniques to particular cases, especially when used to declare 'matches'" based on scientific results of the DNA testing.²⁸ In 1996, only Maine, North Dakota, Rhode Island and Utah did not provide for the admissibility of DNA evidence by either court rulings or statute.²⁹

The admissibility of DNA testing in criminal trials and the advancements in DNA technology raise the question of what balance should be struck regarding the right to postconviction relief based on the results of DNA testing.³⁰ There are cases where a DNA test can produce exclusionary results, which could prove actual innocence.³¹ "In other cases, DNA results may raise a reasonable doubt about guilt."³² Difficult legal issues result because "postconviction requests for [DNA] testing do not fit well into existing procedural schemes or established constitutional doctrine."³³

Generally, "postconviction procedures in both State and Federal courts assume petitioners have in hand newly discovered evidence that purportedly proves innocence."³⁴ Postconviction DNA cases, however, are usually initiated with applications to find and test evidence, essentially Page 248 DNA samples, that have most likely been in the control of the prosecution since the time of the original trial.³⁵

Postconviction remedies are usually sought for the correction of legal errors.³⁶ Many states now recognize claims for newly discovered evidence as a ground for postconviction relief, whether by statute, court rule, or judicial decision.³⁷ Generally, anyone convicted in violation of a constitutional or other basic right can invoke a claim for postconviction remedy.³⁸ The trend has been toward recognizing claims of newly discovered evidence as grounds for postconviction relief.³⁹

Typically, an inmate making a postconviction DNA request wants discovery of the 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.⁴⁰ Many jurisdictions have not legally established how a petitioner is entitled to have his request for DNA testing granted or what the appropriate procedural mechanisms for making demands for DNA testing should be.⁴¹

There are...