1. Post-Conviction DNA Testing Statutes in the United States: A National Perspective Presented By: Gabriel S. Oberfield, J.D., M.S.J. Policy Reform Analyst / Policy Department The National Institute of Justice’s Post-Conviction DNA Case Management Symposium The Innisbrook ● Palm Harbor, Florida January 22, 2009

2. WHAT IS THE INNOCENCE PROJECT?

3. A national, non-profit litigation and public policy organization, dedicated to:

4. A national, non-profit litigation and public policy organization, dedicated to: 1)Exonerating wrongfully convicted people through DNA testing;

5. A national, non-profit litigation and public policy organization, dedicated to: 2) Applying the lessons learned from the 227 DNA exonerations, among them…

6. A national, non-profit litigation and public policy organization, dedicated to: …recognizing the importance of statutory access to post-conviction DNA testing.

7. Why Is Statutory Access to Post- Conviction DNA Testing So Important?

8. A.DNA evidence has enduring probative value;

9. Why Is Statutory Access to Post- Conviction DNA Testing So Important? A.DNA evidence has enduring probative value; B. Emerging technologies can enhance the quality of justice;

10. Why Is Statutory Access to Post- Conviction DNA Testing So Important? A.DNA evidence has enduring probative value; B. Emerging technologies can enhance the quality of justice; C. The scientifically reliable results of DNA testing provide the certainty and finality that bolster the public’s trust in the criminal justice system;

11. Why Is Statutory Access to Post- Conviction DNA Testing So Important? A.DNA evidence has enduring probative value; B. Emerging technologies can enhance the quality of justice; C. The scientifically reliable results of DNA testing provide the certainty and finality that bolster the public’s trust in the criminal justice system; D. Crime victims, law enforcement, prosecutors, courts, the public, the wrongfully convicted, and their families ALL ARE HARMED whenever individuals guilty of crimes elude justice while innocent individuals are convicted of crimes they did not commit;

12. Why Is Statutory Access to Post- Conviction DNA Testing So Important? A.DNA evidence has enduring probative value; B. Emerging technologies can enhance the quality of justice; C. The scientifically reliable results of DNA testing provide the certainty and finality that bolster the public’s trust in the criminal justice system; D. Crime victims, law enforcement, prosecutors, courts, the public, the wrongfully convicted, and their families ALL ARE HARMED whenever individuals guilty of crimes elude justice while innocent individuals are convicted of crimes they did not commit; E. Statutory access has NOT overwhelmed the criminal justice systems in states with such statutes; and

13. Why Is Statutory Access to Post- Conviction DNA Testing So Important? A.DNA evidence has enduring probative value; B. Emerging technologies can enhance the quality of justice; C. The scientifically reliable results of DNA testing provide the certainty and finality that bolster the public’s trust in the criminal justice system; D. Crime victims, law enforcement, prosecutors, courts, the public, the wrongfully convicted, and their families ALL ARE HARMED whenever individuals guilty of crimes elude justice while innocent individuals are convicted of crimes they did not commit; E. Statutory access has NOT overwhelmed the criminal justice systems in states with such statutes; and F. Statutes provide a reliable mechanism to permit post-conviction DNA testing so that credible claims of innocence based on newly discovered biological evidence can be properly evaluated.

14. Why Is Statutory Access to Post- Conviction DNA Testing So Important? New York passed the nation’s first post-conviction DNA testing statute in 1994. Illinois followed in 1998. Many more came afterward – including newest editions Wyoming and South Carolina. 44 of 50 states now have statutory mechanisms in place.

15. What Are Some of the Important Provisions in Post-Conviction DNA Testing Statutes?

16. Categories of Petitioners

17. Laws should not limit access to those currently incarcerated Testing access should be provided to: A.Persons civilly committed; on parole or probation; or subject to sex offender registration; as well as B.Persons who have finished serving their sentences.

18. Laws should not limit access to those currently incarcerated Many petitioners who are not incarcerated still suffer COLLATERAL CONSEQUENCES of their wrongful convictions,

19. Laws should not limit access to those currently incarcerated Petitioners who are not incarcerated still suffer COLLATERAL CONSEQUENCES of their wrongful convictions, -Such as sex offender registries and other tremendous impediments to their lives and livelihood;

20. Confessions, Admissions and Guilty Pleas

21. Access to testing should be afforded to: 1) Persons convicted on a plea of not guilty, guilty or nolo contendere; and 2) Persons deemed to have provided a confession or admission related to the crime, either before or after conviction

22. Confessions, Admissions and Guilty Pleas Although counterintuitive, for a variety of reasons, innocent people plead guilty, confess or make admissions… Of the 227 DNA exonerations nationally, about 20 percent involved such circumstances.

23. Time Limitations and Sunset Provisions

24. Petitions should be freely filed at any time after conviction Some statutes place a clock on the filing of a petition… This is a problem: for example, it can be hard for petitioners – particularly those filing pro se – to prepare petitions promptly.

25. Similarly, PC DNA testing laws should not have “sunset provisions” Statutes should not have expiration dates And very few still do. DNA’s power to reveal truth never expires.

26. Preservation of Evidence

27. In a number of state codes, post-conviction DNA testing statutes are the only place in those codes where mandates to preserve biological evidence are articulated.

28. Preservation of Evidence But many of these PC DNA statutes leave an unintended window for possible evidence destruction… between a petitioner’s conviction and the petitioner’s filing… because evidence preservation is only required after the filing of a petition.

29. Preservation of Evidence Of course, if evidence is lost or destroyed… petitions under these statutes cannot proceed.

30. Evidence Inventory

31. Often evidence is scattered across the criminal justice system – proving difficult for petitioners to locate BUT without evidence, a DNA petition is stopped in its tracks.

32. Evidence Inventory If a judge can call for a thorough search for, and inventory of evidence, that can solve the problem – A number of states allow for this.

33. Victim Notification

34. The filing of post-conviction testing petitions can raise painful issues for the victims of crime…

35. Victim Notification Testing statutes should include mechanisms for victim notification and the reactivation of victim services, should a crime victim so choose.

36. Victim Notification The national Innocence Network is nearing completion of a final statement on its regard for victim concerns that will encompass this issue.

37. Testing Crime Scene Evidence Against Existing Databases

38. If a DNA profile can be developed from biological evidence (whether tied to a petition or otherwise)… Provisions should allow for comparison of that profile to those in NDIS.

39. Testing Crime Scene Evidence Against Existing Databases If a DNA profile can be developed from biological evidence (whether tied to a petition or otherwise)… Databases can demonstrate links of the DNA profile in the case to: -those from other crimes or -other offenders.

40. Expungement of DNA Profiles and Destruction of DNA Samples

41. If a petitioner is exonerated, DNA profiles and DNA samples taken from the petitioner should be destroyed. The state does not have the right to retain them.

42. Appointment of Counsel

43. A number of states expressly permit appointment of counsel for indigent petitioners in the context of PC DNA petitions Petitions can be quite complicated yet deal with fundamental questions of life and liberty.

44. Appointment of Counsel A number of states expressly permit the appointment of counsel for indigent petitioners in the context of PC DNA petitions Important caveat from our model – appointment can be conditioned: The court, in its discretion, may refer pro se requests for DNA testing to qualified parties for further review, without appointing the parties as counsel at that time. Such qualified parties may include, but shall not be limited to, indigent defense organizations or clinical legal education programs.

45. Delineation of Response Times

46. The Innocence Project recommends that statutes mandate specific response times for 1)Prosecutorial responses to petitions, and 2)for judges’ responses to filings. Delays can undermine justice.

47. Delineation of Response Times The Innocence Project recommends that statutes mandate specific response times for: 1)Prosecutorial responses to petitions, and 2)for judges’ responses to filings. Delays can undermine justice.

48. Standard of Proof

49. For: 1)Permitting a Testing Request to Go Forward and 2)Assessing the Meaning of a Testing Result

50. Standard of Proof According to the Innocence Project’s Model: A reasonable probability that the petitioner 1)would not have been convicted or 2) would have received a lesser sentence if favorable results had been obtained through DNA testing at the time of the original prosecution

51. Standard of Proof It should not be the job of the petitioner to solve the crime for which he was wrongfully convicted. The question is whether the original trial verdict would stand, in light of the new evidence.

52. QUESTIONS? Please see our Web Site: www.innocenceproject.org OR,

53. QUESTIONS? Contact Gabriel S. Oberfield of the Innocence Project’s Policy Department GABRIEL S. OBERFIELD Policy Reform Analyst / Policy Department The Innocence Project 100 Fifth Ave. 3 rd Floor New York, NY 10011 (212) 364-5347 goberfield@innocenceproject.org