While DNA testing is a routine procedure used by prosecutors in criminal cases today, it is still a relatively new technology in the criminal justice system. As a result, a large number of defendants who were convicted of crimes prior to the inception of DNA testing are now seeking DNA testing in order to prove their innocence. While there is no question that DNA testing could definitively prove a defendant’s guilt or innocence in many cases, as shown by the 238 post-conviction DNA exonerations that have occurred in the United States to date, DNA testing has still proved to be an elusive goal for many post-conviction defendants, for a variety of reasons. Most states place restrictions on the ability of defendants to obtain DNA testing, and in other jurisdictions, prosecutors actively resist DNA testing following a defendant’s conviction. For these reasons, DNA testing is not always readily available for wrongfully convicted defendants to prove their innocence, even where it is clear that DNA testing would resolve the case.
State Laws on Post-Conviction DNA Testing
Forty-six states have some laws related to post-conviction DNA testing for defendants in criminal cases. However, many of these laws are very restrictive, which means that not all defendants who request post-conviction DNA testing receive it, even after exhausting all of their available appeals. In some states, there are strict time limits, or statutes of limitation, which restrict a defendant’s ability to request DNA testing following his conviction to certain timeframes. In other states, a defendant can request post-conviction DNA testing only under certain circumstances or fact situations, such as if the DNA testing would implicate another suspect. Plus, in four states – Alabama, Alaska, Massachusetts, and Oklahoma – there is no state law that addresses or provides for post-conviction DNA testing for defendants at all. In these states, post-conviction DNA testing is not even a possibility, although there is ongoing litigation in some states regarding this issue.
To further complicate matters, many states do not have laws sufficient to guarantee that DNA evidence is preserved from crimes. Currently, only about half of the states have laws that require DNA evidence to be preserved following the defendant’s conviction. However, even these laws are limited in some respects. For example, some state laws only require the preservation of evidence in certain types of criminal convictions. In other states, evidence need only be preserved for a discrete period of time, or the laws are not applicable to evidence in convictions that occurred prior to the passage of the laws. Additionally, other states do not have any laws that require DNA evidence to be properly catalogued and preserved for an adequate period of time. If there is no evidence available to test, because it is lost, destroyed, contaminated, or otherwise not usable, then DNA testing is simply not a possibility for some defendants in some cases, despite its undisputed usefulness.
Prosecutorial Resistance to Post-Conviction DNA Testing
In a recent article (5/18/09), the New York Times detailed the increasingly common phenomenon of prosecutors who actively oppose post-conviction DNA testing, even where such testing would clearly prove either a defendant’s innocence or guilt. According to the article, prosecutors routinely deny post-conviction DNA testing in about one out of five cases. Prosecutors’ opposition to testing most commonly occurs where there is other evidence that was sufficient to convict the defendant of the crime, such as eyewitness identification or testimony, or where there would potentially be more multiple DNA samples in the available evidence. Prosecutors also seem to fear that every defendant will request DNA testing, thus resulting in many overturned convictions, and that defendants will abuse entitlements to DNA testing, such as using testing to delay the criminal justice process.
The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.