Developments in the Law-DNA Evidence and the Criminal Defense (1995)-Libre

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DEVELOPMENTS

SCIENTIFIC

EVIDENCE

guide

to applying

scientific principles.

Similarly, Daubert

left unan-

swered

the question whether

a

study's

statistical

significance

level

goes

to admissibility

or

to

the burden

of proof.

This

Part

has

attempted

to

familiarize judges and

practitioners

with

the fundamental

tools

that

courts

will need to carry

out Daubert

admissibility

determinations. These tools

should apply not

only to the

Daubert prongs

of admissibility,

but also to

the determination

of how

statistical significance

relates to the desired

legal apportionment of

risk. Although

courts should

predicate admissibility

on

the parties'

presentation

of

their scientific

evidence with an

associated level

of sig-

nificance,

courts

should address both

the magnitude

of the results

and

the

level

of statistical

significance

as burden

of

proof issues. Only

under

this interpretation

of Daubert

can

courts effectively

assimilate

the

scientific method

into, rather than

impose

the

scientific

method

upon, the legal

process.

V.

DNA

EVIDENCE

AND

THE CRnhNAL

DEFENSE

Technological

advances in forensic

science have

introduced new

kinds of evidence

into the legal

system that

bear

more promise

than

traditional

forms

of

evidence but

also

interject

greater

risks of

preju-

dice.'

In theory, sophisticated

laboratory

analyses of physical

evidence

can provide

pinpoint

precision

in criminal identification

as

well

as

conclusive exclusion

of

the wrongly

accused.

In practice, however,

the

shortcomings of

inculpatory tests

and the

significance

of

exculpatory

results

may

be underappreciated.

2

Using the

experience

with

DNA

ev-

idence as a

fulcrum

for discussion,

this

Part

examines some

of the

challenges and

benefits

that

new

forms of

forensic

evidence present

to

the

criminal

defense bar.

Although

some

challenges to the

admissibility of inculpatory

DNA

test results have

been successful,

3

the

inexorable trend

of

both

state

I This

Part will

discuss

DNA evidence specifically, but

many of

the

arguments it

advances

are applicable

to other areas in

which

further

progress

in forensic

science is

anticipated.

See, e.g.,

i

PAUL C. GIANNELLI

EDWARD J.

IMWINKELRIED,

SCIENTIFIC

EVIDENCE

317-I8,

357-59,

529-90 (2d ed.

1993)

(discussing

neutron

activation analysis, bite

mark

and dental

impression

identification,

and genetic markers

other than DNA).

2 See,

e.g., Paul

C.

Giannelli, Criminal Discovery,

Scientific E vidence, and

DNA, 44

VAD.

L.

REV. 791,

794 & n.xS, 796-97 i99I)

(discussing

shortcomings in

the

DNA testing process);

Randolph

N.

Jonakait, Real Science and

Forensic Science,

I SHEPARD S

EXPERT

&

SCI.

Evi-

DENCE

Q. 435,

441 (1994) (discussing

the lack

of

peer

review

in

forensic

science

publications

and

the

absence

of

oversight of

laboratories);

Barry

C.

Scheck,

DNA

and

Daubert,

I5

CARDozo

L.

REV.

1959, 1982 (i994)

( [L]aboratory error

rates are substantially

higher

than DNA profile esti-

mates,

no

matter what

population

genetics method is used. ).

The use of DNA testing

by the

defense

for

exculpatory purposes

is

relatively

unexplored

in the

legal

literature.

3 See, e.g.,

2

GLANNILLI

&

IMWINKELRiED,

supra note 1,

at

30-31; COMIuITTEE ON

DNA

TECHNOLOGY IN

FORENSIC

SCIENCE, NATIONAL

RESEARCH COUNCIL,

DNA TECHNOLOGY

IN

FORENSIC SCIENCE

139-41

(1992);

William C.

Thompson, Evaluating the

Admissibility of

New

1995]

1557

HeinOnline -- 108 Harv. L. Rev 1557 1994-1995


3/27

HARVARD LAW REVIEW

court

rulings

4

and

state

legislations

favors a

general

policy of

admit-

ting

DNA

evidence,

yet

allowing defense

attorneys to challenge

and

undermine confidence

in

the

particular

results. Defense

efforts

will

have

to refocus

on

exposing

the

still

significant

inaccuracies

associated

with inculpatory

DNA

test

results.

Section

A of

this

Part

identifies

defendants'

rights that pertain

to DNA

evidence

before and during

trial,

proceeding

on the

assumption

that

such

evidence

is deemed gen-

erally

admissible. This section

discusses

whether

the defense

enjoys

a

right

to obtain

state-funded

expert witnesses

in

the DNA

context, to

obtain

lab

reports and to examine

lab technicians,

and to

order

testing,

either

to verify

inculpatory

results

or

to

elicit exculpatory

results. The

section

then

argues that

the challenges

associated

with DNA

evidence

raise larger

questions about

the

practices

governing

preservation

of

ev-

idence

and

that

the

current

law

is

predicated upon assumptions more

fitting

to traditional

forms

of evidence.

Section

B of this

Part considers

the

recent phenomenon

of post-

conviction

use of

DNA evidence

by

defendants in

collateral

attacks on

their

convictions.

Forensic

advances

do

not

just enhance

prosecutorial

resources to

the detriment

of

the accused;

they

may

also

exculpate the

wrongly

accused

or convicted

with an

unprecedented

degree

of cer-

tainty.

Most of the

reliability

problems

attendant

to inculpatory

tests

do not

plague exculpatory

ones.

6

This

section

examines

post-

conviction

access

to

testing,

post-conviction

preservation of

samples,

and

remedies

available

to prisoners

who obtain

exonerating

results.

It

argues

that current

legal approaches

to exculpation

are

overly tailored

to

more traditional,

less

reliable

forms

of

evidence

and

recommends

responses to

the

emergence

of more reliable

exculpatory

evidence.

Genetic Identification

Tests:

Lessons

from

the DNA War,"

84 J. CRIM. L.

& CRIMINOLOGY

22,

30-32

(x993).

4 For

a partial

list,

see

2 GLANNELU

&

IMWINKELRIED,

cited

above

in

note I, at

6 (Supp.

1994) (listing

court

decisions

directing

DNA admissibility

when

National

Academy

of Sciences

recommendations

are followed)

and

Judith A.

McKenna, Joe S.

Cecil Pamela

Coukos,

Reference

Guide on

Forensic

DNA Evidence,

in

REFERENCE

MANUAL

ON SCIENTIFIC EVIDENCE 273,

285

nn.i9 &

22-24, 286 n.25 (994)

(listing

court decisions

finding DNA

testing generally

admissible).

s For

a partial

list,

see

McKenna,

Cecil

& Coukos, cited

above in

note 4, at

277

n.3.

6 See

COMMITTEE

ON DNA TECHNOLOGY

IN

FORENSIC

SCIENCE, supra

note 3, at 75; Rich-

ard

Lempert,

Some Caveats

ConcerningDNA

as Criminal

Identification

Evidence: With

Thanks

to the Reverend Bayes,

13

CAnozo

L.

REv.

303,

36

(i99i)

(arguing

that

in

the

case

of

a DNA

exclusion

the odds that the

defendant

was

the

source

of

the

evidence

DNA

is

[sic]

zero

regardless of

how

likely it appeared

beforehand

that the defendant

was the

source and that

[h]ence

acquittals

based

on DNA evidence

alone

are justified, but

warning that

contamination

and lab error

present some

risk

of

false

exclusion); Scheck,

supra note

2,

at 1966-67

( There

has

never

been

much

serious dispute about RFLP

testing [a

DNA

testing

method]

being scientifically

valid for

the

purpose

of

proving

an exclusion. ).

1558

[VoL X08:1481



4/27

DEVELOPMENTS

SCIENTIFIC

EVIDENCE

A.

Defense Testing and Authentication

Inculpatory DNA

evidence

presents

formidable

difficulties

for de-

fense

attorneys.

Claims of

genetic

fingerprinting

may

exert

tremen-

dous persuasive power,

even

when

the

reality of the testing

procedures

falls

short

of

what

is

advertised.

7

Such appearances

may be difficult

to overcome

merely

through cross-examination

and

verbal

rehearsal of

the possible

hazards and

disputable interpretations

encountered in the

process. Defense

attorneys

may

need

to hire

experts to

examine

testing

procedures,

to

interpret

results, and

to explain

contentious interpreta-

tions of data.

Defendants

may also

need to

submit samples

for

confir-

matory

retesting

at

an independent

laboratory.

i.

State-Funded

Access to Experts.

The use

of independent

experts

to

scrutinize

and

testify

about state-obtained

DNA

tests

is

vital

to a strong

defense.

Although

positive

DNA

results

have

an aura of

high

scientific

reliability,

DNA

tests

involve

a

number

of complicated

steps, many

of which call

for

lab workers

to eyeball

results and

to

make

close judgment

calls that may

frequently be inaccurate and

go

unverified.

8

Moreover,

so-called

fingerprinting

matches

are

really

only

instances

of high

statistical

probability,

the reliability of

which

depends

upon the

development

of

comprehensive,

well-researched

sta-

tistical pools to

track

the

incidence

of

linked

characteristics

within

var-

ious

sub-populations.

9

The

sufficiency

of the background research

for

many

groupings is

contested.

10

Thus,

declarations

of a

match

may

not be reliable.

Having

an independent

expert,

with

the cachet

of

sci-

entific

credentials,

to

explain

these intricacies to

a jury may

be essen-

tial to

mounting a

defense

to

a

genetic

match.

Defendants

have

had increasing

success

using

due process

argu-

ments

to secure

state-funded

experts

to scrutinize and

rebut inculpa-

tory DNA

test

results. State prosecutors

have resisted

the

provision

7

See,

e.g.,

COMMITrEE

ON

DNA

TECHNOLOGY IN

FORENSIC SCIENCE,

upra

note

3,

at

22,

25

(discussing

the risk

that

inculpatory

DNA evidence creates

inappropriate expectations

of scien-

tific infallibility

in identification);

Joseph L.

Peterson, John P.

Ryan, Pauline

J. Houlden Steven

Mihajlovic,

The

Uses and

Effects of Forensic

Science in

the Adjudication

of Felony

Cases, 32

J.

FORENSIC

SCI.

1730,

1748

(987).

8

See, e.g.,

Giannelli,

supra note

2, at 795 ('Proficiency

test

results

of many common

labora-

tory examinations

are alarming. );

Scheck, supra

note 2, at i981-85;

Thompson,

supra note

3,

at

38,

40, 53.

Furthermore,

assessing the sample

may be difficult

if the sample

is

impure. See,

e.g.,

Albert

T.

Finch MI,Note,

"Oops We

Forgot

to Put

It in the

Refiigerator :DNA

Identification

and the State's

Duty to Preserve

Evidence, 25 J. MARSHALL

L.

REV. 8o9, 817-I8

(1992); Ran-

dolph

Jonakait,

Stories, Forensic

Science, and

Improved Verdicts,

3

CARDozo

L. REV.

343,

349

n.17

(iggi); Anthony

Pearsall,

DNA

Printing:

The

Unexamined

"Witness"

in

Criminal

Trials,

77

CAL. L.

REv. 665,

67o-71

(1989).

9 ee

Lempert, supra

note 6, at 305-14;

Thompson, supra

note 3,

at 6I-89.

10 See, e.g.,

Scheck, supra

note 2,

at 1971.

11 The leading Supreme

Court case

on

provision

of experts generally,

Ake

v. Oklahoma,

470

U.S.

68 (1985),

provides

that

indigents

have a constitutional

due

process right

to a state-funded

psychiatric

expert in

capital

cases.

The

Court attempted

to assess whether access

to an

expert

X995]

1559



5/27

HARVARD LAW REVIEW

of state-funded DNA

experts,

12

on two

grounds: that

attorney prepara-

tion

and cross-examination should

suffice to expose any flaws in the

testing

process, and

that an independent

expert was unnecessary

be-

cause the

DNA

testing

was performed by a private laboratory, rather

than

a presumably partisan state

official.

These

arguments

have

met

with

increasing

disfavor.

13

For example, in Dubose v. State,'

4

an Ala-

bama appellate court ruled that an indigent defendant in a capital

case had the right to

have

a

state-funded

DNA expert to

examine

the

evidence and

to testify as to

its weaknesses.'

5

The court

noted

that

the presentation of

DNA

evidence

has

tremendous persuasive power

and,

hence, that the judicial consideration of such evidence

requires

supervision and

caution;

cross-examination, it warned, might not be

sufficient

to

counter the

aura

of precision generated

by

the statistical

probabilities

cited

by a

scientific

expert.'

6

The court further

noted

that, although the experts testifying for the state were employed by an

independent laboratory, they had a vested interest in the

success of

their company

and in getting their results into court.1

7

The court

pointed

to the

constructive role

that

independent defense experts

had

played

in

other

cases,

in which

they had

forced the

state's

expert

wit-

nesses to alter their testimony in response to criticisms and to adjust

their

laboratory methods and

statistical databases.' Likewise, a Vir-

ginia appellate

court ruled that

a

defendant

in a

non-capital rape

trial

was wrongly denied the

services

of a DNA

expert when the

state's

only

evidence aside from a DNA

test was a victim's statement

about

figured among the

basic tools necessary for

an

adequate defense. Id. at 77 (citing Britt

v. North

Carolina,

404

U.S. 226,

227

(1971)). Subsequent

applications

of this test by lower courts have

expanded the range of types of cases and experts to which this guarantee applies,

acknowledging

that

other experts may be as essential as psychiatric experts. For instance, the

Eighth Circuit

extended the

Ake

privilege to encompass access to a hypnosis

expert to

counter the

state's

hypno-

sis-elicited

eyewitness

testimony.

See

Little

v.

Arinontrout,

835

F.2d

2240,

1243

(8th

Cir.

1987),

cert.

denied

487 U.S. 120

(1988); see

also Moore

v. Kemp, 809 F.2d

702,

712

(iith

Cir.)

(con-

cluding

that

an expert

must

be provided if there

is a

reasonable probability

that

the expert would

be of

assistance

and if

denial

would

be

fundamentally

unfair),

cert. denied, 481 U.S. 1054

(2987).

12 See e.g.

ubose

v.

State, No.

CR-89-359,

2993

WL 382482, at

*io, *32, *34 (Ala. Crim.

App.

Sept.

30,

1993),

affid o. 293o827,

1995 VL 24653

(Ala. Mar. 24, 1995); Cade v. State,

No.

92-142,

1994 WL

225289, at 5 (Fla. Dist.

CL

App. Apr.

8, 1994);

State v. Edwards, 868 S.W.2d

682, 698 (1993). The

issue of

a right

to

DNA experts has not been

confronted

in

any reported

federal

case.

13 See Dubose

v.

State, No.

CR-89-359,

2993 WL

381482

(Ala. Crim. App.

Sept. 30, 1993);

Husske

v.

Commonwealth, 448 S.E.2d

331, 339

(Va. CL App. 1994). But see

State

v.

Derr,

451

S.E.2d

732, 749

n.23

(W.

Va. 1994)

(dismissing

without

discussion

defendant's

claim

of

error

in

the trial court's

denial of

a motion for a continuance

to obtain

a DNA expert).

14

No. CR-89-359,

2993

WL

381482

(Ala.

Crim.

App.

Sept. 30,

1993).

5 ee id. at *37.

16

See id. t

*33-*35.

17 d. t *33.

18

See

id. t *36-*37

.

i56o

[V7ol. 108:1481



6/27

DEVELOPMENTS

SCIENTIFIC

EVIDENCE

the

rapist's

ethnicity.

19

That court, citing

Dubose,

noted both the sig-

nificance

of the

evidence to the

state's

case and

the

state's

failure

to

show

that a legitimate

interest would

be jeopardized

by

an

independ-

ent

examination

of

the

data.

2

0

Recently,

however,

the Indiana

Supreme

Court

resisted this

trend

and

held

that

access

to an

independent

DNA

expert

is

not

required.

2 1

It

regarded

the private

laboratory

as neutral

and

held

that

the

DNA

tests involved

precise measurements

insufficiently

disputed

to warrant

an

additional

expert.

2 2

Other state

courts that

have

denied

indigent

defendants

access to a state-funded

DNA expert

have

not been hostile

in principle

to such

access,

but have

complained

that defense

attorneys

have failed

to make

sufficiently particularized

demonstrations

of

the

need

for

an

expert.

2

3

2

Access to

Laboratory Records

and Samples. Effective

re-

buttal

of

inculpatory

DNA evidence

may require

access not

only to an

independent expert,

but

also to laboratory

records

and

physical

sam-

ples

for retesting.

Many

scientific experts believe

that results from

a

single round

of testing

should

be

confirmed

through

blind

retesting

in

order

to

ensure accuracy.

24

Retesting

and

access

to records

may

be

particularly

important

because

many states

rely on

private labs

that

are

not subject

to strict

regulatory

oversight

to guarantee

adherence

to

secure

testing procedures

and scientific

guidelines.

Significantly,

such

labs depend

on the state

for revenue

and,

in particular,

depend on

the

satisfaction

of

police

and

state

prosecutors.

25

Reliability

problems

may

plague

state

laboratory

testing

as

well.

2

6

19

See

Husske

v. Commonwealth,

448 S.E.2d

331,

332, 340

(Va.

Ct.

App.

1994). Similarly,

in

Polk

v. State, 612

So. 2d 381

(Miss. 1992),

the Mississippi

Supreme

Court

found

analogies be-

tween

the

complexity

of

psychiatric

and DNA evidence compelling

and declared that

due process

considerations

require

that

a

defendant

have

access

to

an independent

expert to

analyze

the

State's evidence.

Id.

at 394.

20

See Husske,

448

S.E.2d

at

335.

21 See

Harrison

v.

State,

644

N.E.2d 1243

1252-54

(Ind.

i995).

22 See id. at X254 (noting,

however, that the

DNA evidence

was not necessary

for the

conviction).

23

See,

e.g., Cade

v.

State,

No. 92-142,

1994

WL

115289,

at

*4 (Fla.

Dist.

CL App. Apr.

8,

1994);

State

v. Edwards, 868 S.W.2d

682, 698 (Tenn. Crim. App.

i993). In State

v.

Mills, 420

S.E.2d

114

(N.C.

1992),

the

North

Carolina

Supreme

Court denied

a

state-funded expert

because

the

request

was

too vague

but

did

not

set

a

per

se rule

against

granting

DNA expert

access.

See

id.

at

xig; see

also State

v. Moseley,

449 S.E.2d 412,

425

(N.C.

1994)

( Defendant

was

provided

with a DNA

expert to

reevaluate and

challenge [the

state expert's]

conclusion. ).

24

See

Jonakait,

supra note

8, at 327-28; Scheck,

supra note 2,

at

I969-7o.

25 Some legislatures

are

paying

more

attention to the

problem

of inadequate

laboratory

over-

sight

New

York recently passed

a

statute that, in addition

to

establishing

a

database

of

criminals' DNA

profiles, sets

minimum standards

for lab

accreditation. See

N.Y. ExEc.

LAW

§ 995-a to

995-f (McKinney

Supp. 1994).

26

One

disturbing example involved a

state technician, Fred Zain,

who misrepresented his

scientific

credentials and

frequently perjured

himself by

falsifying and

exaggerating results

about

blood

and hair samples to

make

them

appear inculpatory.

See In re

Investigation

of

the W. Va.

State

Police Crime

Lab., Serology

Div., 438 S.E.2d

501,

503-08

(W.

Va. 1993); Tuffiash

v.

State,

1995)

1561



7/27

HARVARD LAW

REVIEW

Courts have

generally,

although not uniformly,

been

amenable to

defense requests for

access

to samples for testing as well as to the

records of

the

laboratories and

lab

technicians,

27

but

they

have been

unwilling

to

enforce such

requests broadly. Some

state

courts, in inau-

gurating the

admissibility

of DNA

evidence,

have stressed

the impor-

tance both of defense retesting and of defense oversight

of

lab

procedure. For instance,

when the Minnesota

Supreme Court first

ruled

DNA

evidence admissible, it held that state discovery

rules

should be interpreted to require

access

to lab reports.

28

The court also

noted

that, although

ideally defendants should have access to

samples

to

check

the

state's results through

independent testing,

2 9

evidence

may be

consumed in

the initial

round

of testing, a possibility that

un-

derscored the importance of providing defendants with access to labo-

ratory

data

and

methodology.

30

Although courts

have respected

the

right

of

access,

they

have been

unwilling

to extend the reach

of

that

right.

No state court has yet required

that the state preserve samples

to permit

retesting, or

that

state

officials

forbear from

testing

or

intro-

ducing

test results

when the available

sample size

would

not

permit

duplicative testing.

31

In Jenkins v. State,

3 2

a state

court

dismissed an

appellant's

complaint

that his Sixth Amendment

right

to confrontation

was

abridged by

the

state's failure to call the

lab

technician to testify.

The court found the technician's absence

non-prejudicial

because his

878

S.W.2d

197,

200

(Tex. Crim.

App. 1994)

(ordering

consideration

of

a motion for a

new trial

in

light of Zain's potentially fabricated testimony concerning defendant's blood); State

v.

Derr,

451

S.E.2d 731,

748-49 (W. Va. 1994) (permitting criminal defendant to seek post-conviction habeas

corpus

relief because

evidence in the

trial

had been tested by Zain);

cf.

Miller v.

Pate,

386

U.S. x,

6-7 (1967) (reversing

conviction

because

retesting

of bloody shorts revealed

that they were

stained only with

paint

and showed

that

the

state's

lab

lied about

the

evidence).

At

least two

people have been freed in light

of

the revelation of

Zain's

perjury, and hundreds of convictions

are now

under review

in

West Virginia and Texas. See Sau Chan,

Scores

of Convictions Re-

viewed as Chemist Faces

Perjury

Accusations,

LA.

TImEs,

Aug.

21,

1994,

at

32A.

27

See, e.g.,

United

States

v.

Yee,

129 F.R.D.

629,

63o, 636

(N.D.

Ohio i9go) (allowing

discov-

ery of FBI lab reports on DNA

tests);

Giannelli,

supra note 2, at 8x-x6; Thompson, supra note

3,

at

96-ioo.

28 See

State

v. Schwartz, 447 N.W.2d 422, 427

(Minn.

1989).

29

Strangely, such requests are rare.

See

Rockne

P.

Harmon, Legal Criticisms

of DNA 7ping:

Where's

the Beef?,

84 J.

CRim. L.

CRIMNOLOGY

175,

176

n.7

(1993); Jonakait,

supra note

8, at

348;

Peter J.

Neufeld, Have

You

No Sense of Decency?, 84 J. CRiM. L. & CRIMNOLOGY x89,

1go

(1993)

(estimating

that

defense counsel

seek

independent

assessment

in

fewer than five

percent of

cases involving inculpatory

tests).

30 See Schwartz, 447 N.W.2d at 427.

3 See,

e.g.,

People

v.

Griffin,

761

P.2d

103, 107-09

(Cal.

1988)

(finding no

due

process

viola-

tion when

a sample is fully consumed

in the testing

process); Commonwealth v.

Francis, 648

A.2d

49, 52

(Pa. Super.

Ct.

1994) (finding no due process violation when a.sample was unanticipatedly

fully consumed

in testing). Ironically,

one court has required that post-conviction testing by

the

defense

not

consume the

full sample. See

Hinton v. Commissioner

of

Correction,

Nos.

CV-88-588

& 86-167, x99o WL 269448, at *4

(Conn. Super. Ct.

June 22,

i99o).

32

627

N.E.2d

789 (Ind. 1993), cert.

denied, iis

S. Ct.

64

(1994).

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8/27


9/27

HARVARD LAW REVIEW

argument that a

failure

to perform tests implicated

his

constitutional

rights to discovery

of exculpatory

evidence

stemming from

Brady v.

Maryland.

38

It

held

that the failure to

perform tests did not

violate

the Brady

rule because

yet-untested

evidence

was only

of

potential

and

purely

speculative

exculpatory value.

39

There are

strong

legal grounds, however,

for

requiring testing

to

be

performed at

the

request of

the defense. In civil suits,

an indigent

man facing

a

paternity claim

has a

due process right to

state-funded

blood testing.

4 0

Such

a right in the civil context

lends

itself

naturally

to

extension

to the

criminal arena. Further, in

light

of

the FBI's

re-

search showing that DNA

testing yields

fully exculpatory results in

over thirty

percent

of

tests

of

samples

from people the

police

consider

principal suspects,

4 1

it is

arguable

that the exculpatory value

of

such

tests

is

not

purely

speculative. Dictating

that

some

indication

of

the

exculpatory

value of the

particulartest be

present

in

order

to activate

Brady

requirements

is problematic because

such

proof

could

never

emerge for

evidence that

required

further

investigation before it re-

vealed

its

nature. Such evidence, however, may be the

most

important

for the

defense to

have

access to

and for

the judicial

system to con-

sider.

If

the defense is

willing

to run

the risk of

inconclusive or

incul-

patory

results, requests for

testing should be accommodated.

4.

Preservation. The qualified consensus that defendants

should enjoy

rights to DNA experts,

to access to

lab reports,

and to

their

own

tests raises

questions

about

what duties

of

preservation of

samples

attach

to the state

and

whether these

duties will have to

be

expanded

to accommodate the

justice system's

growing

reliance on

fo-

request

for

state-funded independent testing might

have been

successful

if

it

had not

asked

that

the

state's investigation

take

a particular

form. See id.

38

373 U.S. 83, 86-88 (1963) (holding that the prosecution must disclose

material

evidence

upon request); see also United States

v.

Agurs,

427 U.S. 97, 110 (1976) (holding that the prosecu-

tion

must disclose exculpatory evidence, even without a

defense request).

39 See

People v.

Buxton, 593

N.Y.S.2d

87,

89 (App.

Div.

1993).

But

see Dabbs v.

Vergari,

570

N.Y.S.2d

765,

767-69

(Sup.

Ct. 19go) (holding

that

a defendant was

entitled

to post-convic-

tion testing

on the grounds that his Brady

rights to disclosure of

evidence

of

exculpatory

value

would

have

granted

him

a right

to

have testing performed at trial and

that, because such tests

were unavailable at

the

time

of trial, he should enjoy

such a right

after conviction); Prince v.

Superior Court, xo Cal.

Rptr. 2d

855, 858 (CL App. 1992)

(holding that, because enough material

existed

for independent

testing,

the

defense

would

be

permitted to conduct

its

own non-discovera-

ble testing).

40 See

Little

v.

Streater, 452

U.S.

1, 17 (I98x).

41

See COMMTTEE ON DNA TECHNOLOGY

IN

FoRENsIc SCIENCE, supra

note

3,

at 88, 156;

DNA Exclusions: New Grounds

or Attacking Old Convictions

7

Crim. Prac. Man. (BNA) No. I

at

6,

8 (Jan.

6, 1993)

[hereinafter DNA

Exclusions]; Colman McCarthy, DNA Testing

and

Judicial

System's Flaws, WASH. PosT, Mar.

x6,

1993, at Cxo.

1564

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DEVELOPMENTS

SCIENTIFIC

EVIDENCE

rensic evidence.

Federal

and

state

approaches to

the

preservation of

evidence

vary

considerably,

42

and much

evidence

is

discarded

or

lost.

4 3

Although

the Brady line of

cases

introduced

the

constitutional

re-

quirement

that the

prosecution alert

the

defense to all exculpatory evi-

dence

and make material

evidence

favorable

to

the defendant available

upon request, the Supreme

Court

has twice

declined to interpret the

Brady

protection to

encompass

duties

of preservation.

In

California

v.

Trombetta,

4

breathalyzer

testing

consumed the samples,

and

the police

took no additional

samples

to allow for defense verification.

45

A

unan-

imous

Court

declined

to

find a constitutional

error

in

the

state's

fail-

ure to take and preserve samples.

46

The opinion emphasized

the

reliability and the regulatory oversight of the breath-analysis machin-

ery, the

fact

that the

test was

performed

twice at the scene, and the

good

faith conduct of

the

police

in

following

their

settled procedures.

47

A

constitutional violation would occur only when the

police

discarded

material evidence

of

apparent exculpatory

value

and

of

such a na-

ture

that

the

defendant

would be

unable

to

obtain

comparable

evi-

dence by other reasonably

available means.

48

Trombetta's

emphasis on the high reliability of the machinery

and

on the

virtual

superfluity

of

further tests

left

open

the

possibility that,

if

there is a

higher

chance

that retesting would exonerate, the

state

might labor under a stronger duty to preserve samples for

later

testing.

The

Court's

decision

in

Arizona

v.

Youngblood

49

cast

some

doubt

on

this

reading, but did

not

entirely foreclose it. In Youngblood,

defense

counsel sought

access

to an assault kit

and

clothing to perform blood-

group tests

that

might

exonerate

the defendant

of charges of

sexual

assault.,

o

Such tests proved impossible because

the police

had

failed

to

store the

samples properly.,

5

The trial

court nonetheless

proceeded,

but

instructed the jury

that if it found that

the state had destroyed

or

lost evidence,

it should

infer

that the

evidence

would have

been

42 See Finch, supra

note 8, at 820-28. The duty to

preserve

in

civil cases is,

strangely, much

higher

than

the

state's duty

to

preserve

in

criminal cases. See

David

R. Reed & L.

Anthony

Lehr, Preservationof

Evidence and

Its Role in Product

Liability Litigation,

FOR THE DEF., Jan.

1991, at

II, 11-14 (discussing

the

duty to preserve

evidence

in

the

products liability context).

43

See

Giannelli,

supra

note

2,

at 81g.

44

467 U.S. 479 (1984).

4S

See

id.

at

482-83.

46 See id. at 491.

47

See

id.

at

481

&

n.x, 483,

488-89.

48 Id. at 489. The Court deemed the likelihood

small that

retesting would be

exculpatory,

and

reasoned that the

ability

to expose

the few opportunities

for

mechanical failure constituted

sufficient due process protection. See id. at

489-go.

49 488

U.S.

51

(1988).

50 See id. at 54.

S1

See id.

at 53.

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11/27

HARVARD

LAW REVIEW

favorable to

the defendant.

5 2

The Supreme

Court rejected

Young-

blood's argument

that

the mishandling of the samples deprived

him

of

his due process rights. The Court

acknowledged that the likelihood of

exoneration

was greater than in

Trombetta, but distinguished

Trombetta by

observing

that

the

state's

case

in

Youngblood

did

not

rely upon results

derived from absent evidence.,

53

It

found that

the

apparent

exculpatory

value

standard

was

not

satisfied,

because

no

tests had

yet

been

performed,

5 4

and held

that failure to preserve po-

tentially useful

evidence does

not constitute a

due process

violation

unless there

is

evidence of

bad

faith.,

5

Youngblood

and Trombetta, taken together,

signal the

Court's re-

luctance to

assign

strong

duties of

preservation

to the

state. Neverthe-

less,

scenarios likely

to arise in the

context

of DNA evidence point

to

important,

as

yet unresolved

issues

in the federal preservation context.

First, Youngblood's holding

may

have

depended upon

the

trial

court's

instruction directing a negative

inference against the

state regarding

the lost evidence.

56

Youngblood may

be

read to suggest that instruc-

tions

of this

sort are

necessary

to

avoid

a

due

process violation

when

potentially

useful evidence,

such

as blood

that

could be

tested for

DNA

identification,

has been destroyed. Such instructions

could be

exploited by defense

counsel to compensate for the absence

of evidence

for

testing.

Second, Youngblood leaves

unclear

what constitutes bad

faith

on

the part of the state.

This

lacuna

is significant,

not

just for

the

diffi-

culties it presents

in evaluating police conduct in particular

cases, but

also for its failure to provide

guidance regarding the systematic treat-

ment

of forensic

evidence.

The facts in Youngblood

are murky in this

regard, but in Trombetta,

the

Court may

have been appeased

by

the

fact

that systematic rules and practices were in place and

were gener-

52 See

id. at 54.

Youngblood

was

nevertheless

convicted on

the

basis

of

a

photographic

lineup

identification.

See id. at 53--S4.

53

See

id.

at

56.

54

The

Court was

unwilling

to

speculate about

the

possible significance

of

the

destroyed

materials

and

expressed

reluctance

to impos[e]

an

undifferentiated and absolute duty to

retain and to preserve all material

that

might be

of conceivable evidentiary

significance

in a

par-

ticular prosecution.

Id. at 56 n.*, 58.

SS Id. Justice Stevens departed from

the majority

holding and acknowledged that

there

may

well be

cases

in

which the defendant

is

unable to prove

that

the State

acted in

bad

faith but In

which the

loss

or destruction of

evidence

is

nonetheless

so

critical to the defense as to make

a

criminal trial fundamentally

unfair.

Id. at

61

(Stevens,

J.,

concurring).

Justice Stevens's

concur-

rence

has

been influential

in state

decisions

on preservation.

Examples include Ex parte

Gingo,

6o5 So.

2d 1237, 1241

(Ala.

1992), cert.

denied,

113 S. Ct.

967 (x993); Thorne v. Department of

Public Safety,

774 P.2d 1326,

133o

n.9

(Alaska

x989); State

v.

Matafeo, 787

P.2d

671, 673 (Haw.

i9go); and Commonwealth

v. Henderson,

582

N.E.2d 496, 497 (Mass.

1991).

56 Justice Stevens's

concurrence cited this factor as essential.

See

Youngblood,

488 U.S. at

59-6o (Stevens, J., concurring).

1566

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DEVELOPMENTS

SCIENTIFIC

EVIDENCE

ally

followed,

although the police erred

in

the

particular case.

5 7

The

background assumption

here

matters

a

great deal.

Although

many ju-

risdictions

habitually

follow some set

of preservation

practices, such

practices vary

widely from

locality to locality

and

are not uniformly

regulated

by federal

or state

governments.

58

Some

jurisdictions retain

evidence

until

appeals

are

exhausted,

while

others simply store

the evi-

dence

until

more storage space is

needed.

9

The

Constitution may

not

guarantee

a remedy when evidence

has

been

inadvertently destroyed

in a particular

case contrary to sound

common

practice,

but it does

not

follow that

failure

to establish

defensible systematic approaches

to

preservation also

passes constitutional

scrutiny.

60

In the late ig8os,

the

full

and

growing potential of

physical

testing was

not

entirely ap-

preciated.

More recently,

as techniques have vastly

improved

and

as

physical

evidence and analysis

have

gained prominence,

both the tre-

mendous

exculpatory

and

inculpatory

power

of

forensic testing

have

become apparent.

In the

contemporary

evidentiary

context,

failure to

develop express

guidelines

for routine preservation and

storage

of

physical

evidence

should now

be taken

to

indicate

bad faith

on the

part of the

state in an attempt to manipulate

the

pool of available

evidence.

6

1

Third,

Trombetta and Youngblood

did

not issue clear

directives for

cases

in which the state

seeks to introduce incriminating

results from

tests,

but has discarded the

samples.

Defendants

who

complain that

their

inability to

retest the

samples

violates

due process

may

have

a

more

colorable

claim

than a superficial

reading of

these

cases

would

suggest.

The majority opinion in

Youngblood

downplayed the preju-

S7 Cf

State

v.

Steffes,

5oo N.W.2d

6o8, 613

n.5

(N.D.

1993)

( The

haphazard

handling

and

destruction

of

evidence, which actions

are potentially prejudicial

to

the accused, may warrant

different

rules if

destruction of evidence is

commonplace. ).

S8 See Telephone

Interview with

Jon

Oberman,

Attorney, Innocence Project

(Oct. i9, 1994);

Telephone Interview with

Mark

Stolorow,

Director of Operations, Cellmarks

Diagnostic

Labora-

tory,

formerly

of the

Illinois Forensic

Science

Laboratory (Jan.

i3,

x995).

59

See

DNA

Exclusions,

supra

note 41, at 8.

60

An analogy

may be helpful here. One

author

has

compared Youngblood with United States

v.

Leon, 468 U.S.

897

(1984),

which allowed

the admission

of

evidence obtained

from an

invalid

search warrant

when

police

acted

in good-faith

reliance on its

validity.

The

author notes that

both

cases

find

constitutional

violations in

police

conduct only when

there has been bad faith.

See

Matthew

H.

Lembke, Note,

The

Role

of

Police Culpability

in

Leon and Youngblood, 76 VA.

L.

REv.

1213,

1230-35

(iggo). Although

Lembke pursues the comparison

in order to

attack

the

bad-faith requirement

in

both cases, even more

may be harvested

from

the comparison. In Leon,

the

Court

sought to

ensure

that

the

state's

efforts would

not

be frustrated

in

cases

involving good-

faith

detours from search and

seizure rules. But that

holding did

not, it seems,

imply that back-

ground

rules

governing

search

and

seizure were

not

required.

In

the preservation

context

as

well,

the Court seems

to

have assumed

that

background

rules governing

preservation exist,

and that

the Youngblood snafu is just that an isolated departure

from reasoned regulations governing

preservation practices. The Court's opinion

should

not

be taken to

countenance

arbitrary treat-

ment

of

samples.

61

For

another

argument

supporting this

proposal, see

Finch, cited

above

in

note

8, at 827,

834 (rejecting

the

bad

faith

test

and arguing

for a

potential

exculpatory

value test).

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HARVARD

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REVIEW

dice

to

the defendant

because

the

lost

evidence

was not

used by

the

prosecution.

62

Whether

or

not

the

state's

use

of the

evidence

should

be determinative

of

the level

of

prejudice

to

the defendant,

the burden

on the

defense

is

much

higher when

the state

uses

powerful

scientific

evidence

that

the

defense

may

not

examine

and

verify. Asymmetrical

access

to

evidence is particularly

problematic

in the

DNA context,

given

the overpowering

rhetorical

force

of

putative genetic

matches,

the

enhanced

risk

of

inaccuracy,

and

the

fact

that

DNA evidence

is

typically

presented

in prosecutions

for

crimes

such as rape

or

murder,

in which

the stakes

are

very high.

63

These

factors

justify limiting

the

holding

of

Trombetta

to

simpler,

more

reliable

forms

of

testing.

64

The DNA

example

also

poses a

challenge

to the

standard

interpre-

tations

of

the


value

requirement

advanced

in

Trombetta

and

echoed

in

Youngblood. Two

possible

interpretations

of

this

standard

are

available.

On

the first,

traditional

view,

untested

ev-

idence

such as blood

or

semen

may

seem,

as

it

did

to

the

Court,

to

lack

both

apparent

and

exculpatory

value.

Such evidence

may

have

exculpatory

value, but

this value

is not

apparent:

it only

reveals

itself

upon testing.

On the

other

hand, the

evidence

may

well have

no ex-

culpatory

value

at all,

and

may

even

be

inculpatory.

As

the DNA

example

demonstrates,

this

interpretation

of the

apparent

exculpatory

value

standard

seems

forced

and

arbitrary. Why

should

the law

favor

the preservation

of

evidence

whose

nature

is

transparent

over

the pres-

ervation

of

more

opaque

evidence that

only

reveals

itself

upon

testing,

especially

if the

opaque

evidence

may

be more

informative

and

may

62

See

Youngblood,

488

U.S.

at 56.

63 Cf. rombetta,

467 U.S.

at

48r

(analyzing

preservation

standards

for

a

breathalyzer

test in a

drunk

driving

case).

64

The ability

of the

defense to

introduce doubt,

through

commentary

and cross-examination,

is

insufficient

in the DNA

context to

constitute the

comparable evidence

envisioned

in

Trombetta.

Without

access

to the DNA evidence,

either as it

is

being

tested or later,

the

disad-

vantage to the

defense

may

be

so

great

that

it

precludes

a

fair trial. Trombetta

and

Youngblood

seem

to

suggest

that

the

defendant may

have a

right

to

demand

that the

DNA

evidence

be ex-

cluded

because

any

minimally sufficient

avenues

for rebuttal

have been

foreclosed.

When

initial

testing

has been

performed,

it is

less clear

that

the defendant

should be constitu-

tionally entitled

to a

jury instruction

directing

the inference

that defense

testing would

have

un-

dermined

the state's conclusions.

In Youngblood,

this

instruction

made more sense

because no

testing had

yet

been

performed

and

there

were no

empirical

indications of

the defendant's

guilt.

See

Youngblood,

488

U.S. at 53.

When

inculpatory

results are inconclusive

without

retesting,

requiring an inference

for

the

defense

would

unfairly

penalize

the prosecution.

If

the

evidence

Is

expected to

be

consumed in

the first round

of

testing,

the

defense

should

be

notified

in advance

and

should

have the

right

to observe

the

testing

to

ensure

that

proper

procedures

are followed;

the

jury

should

also

be

instructed

about

the importance

and

desirability

of

a

second

round

of

testing.

A

similar issue

may soon be

confronted with

respect

to

the identification

of criminals by

means of searches

of

databases of

previously compiled DNA

profiles.

These databases

contain

the

results of

DNA

tests, but the

compilers

do not save

the

original

samples

from

which these

results

are

derived.

Courts

should

permit such

results

to be used

in police

investigations, but

these

matches

should not

be

admitted at

trial because defense

oversight

of the lab

procedures will

not

be

possible.

1568

[Vol. io8:1481



14/27

DEVELOPMENTS

SCIENTIFIC

EVIDENCE

provide

more

conclusive

results than the

transparently exculpatory,

but

merely

suggestive

evidence?

A

second,

more

plausible interpretation

of the apparent

exculpatory

value

standard

would

acknowledge two

distinct ways

to meet

this

standard.

First,

evidence

may,

on

its

face,

suggest

that

the defendant

is innocent.

Second,

it may

be apparent that

a

certain

type

of

evi-

dence

has high

exculpatory

value

that

is, it is

the

type of

evidence

which

contains

information

that

could

clearly

exonerate.

65

Traditional

forms of

evidence,

such

as

third-party

confession

notes,

fit the

first

criterion.

Evidence requiring

scientific analysis,

such as

blood or

se-

men,

meets the

second. Results

from testing

such

evidence

may often

surpass by

far

the

value of

evidence that meets

the first

criterion.

Given

technological

advances

in forensic

science,

the

value of

this

type

of

evidence

should

be deemed to be

widely

known and

hence

apparent.

While

federal

courts

have thus

far refused

to impose a

duty to pre-

serve

evidence,

some state constitutional

courts have

suggested

the

existence

of such a

duty. At least

two courts have

affirmed

that, when

the

defense

makes

a request

for the preservation

of evidence,

the

state

has

a

duty to

comply and may

face sanctions

for non-compliance

irre-

spective of

bad

faith.

6 6

In Deberry

v. State,

67

an

opinion followed

by

several other

states,

68

the Delaware

Supreme

Court held

that the

state's

Brady

duty

to

disclose evidence

tending

to

exonerate

encom-

passes

a

derivative

duty of preservation.

69

The court

then

proceeded

to

analyze

what

remedies should

apply

when

this

duty

is

breached,

directing

courts

to

balance

the

state's

culpability

and

the

degree

of

65 The evidence

in

Trombetta

would

have failed

this disjunctive

test.

Its exculpatory

value

was not

apparent in the first

sense, and

the anticipated

value

of

further

tests was

quite low,

because two rounds

of

tests

had

already

been

performed.

66

See,

e.g.,

People

v.

Koutsakis,

627 N.E.2d

388,

392-93

Il.

App. CL 1993),

appeal

denied,

638

N.E.2d

1121

(Il.

1994) (holding additionally

that

defendant

need

not

prove in advance

that

the material

is exculpatory); State

v.

Bush, 595

S.W.2d

386, 389

(Mo. t App.

x98o) (holding'that

an arrestee's

request

to

save

breath

samples

conferred

a

duty

of

preservation

on the state).

On

remand, the

state court

in Youngblood

ruled

that

judges

must instruct

juries

to

draw an

inference

that

evidence

would have

been unfavorable

to the state

if

the state cannot

adequately

explain the

state's

loss

of, destruction

of, or

failure to preserve

material

evidence that

might

have

aided

the

defendant.

See

State

v. Youngblood,

844 P.2d

1152, 1156

(Ariz.

1993).

Harsher

consequences

accrue when

the state

has

acted

in

bad faith or when

the defendant

suffers prejudice-in-fact.

See

id.

at 1156-57.

67 457 A.2d

744 (Del.

1983).

68

See,

e.g.,

Gurley

v. State,

639

So.

2d 557,

567 (Ala.

Crim.

App. 1993); State

v. Ware,

881

P.2d

679,

684-86 (N.M.

1994).

The

Washington

court has

been

divided as

to

whether to adhere

to

a Deberry standard

or to

adopt

a Youngblood

standard.

See

State

v.

Ortiz, 831

P.2d io6o,

xo64-68

(Wash.

1992) (applying

the

Youngblood

standard); State

v.

Hanna,

871

P.2d

135, 140

(Wash. i994)

(acknowledging

the

split),

cert. denied,

5 S.

Ct. 299 1994).

69 See

Debery,

457

A.2d at

751-52. The opinion

went on

to suggest

that, as

a matter

of

prudence, administrative

agencies

that create rules

for evidence

preservation

should direct

that

any

material

that

could

be

favorable

to

the defendant

be

preserved.

Id.

at 752.

,9951

1569



15/27

HARVARD

LAW

REVIEW

prejudice to the accused.

70

The inquiry should include consideration

of

the

degree of

negligence or

bad faith on

the

part

of

the

state, the

importance of

the

lost

evidence,

and the sufficiency

of other

evidence

supporting

the

conviction.

71

Applying

this test

to

the

case

at

bar,

a

sexual

assault case

in which the defendant's

clothing

was lost,

the

court considered

the potential

exculpatory

value

of

the

evidence to

be

relevant, undergirding

the court's judgment

that

for crimes

of sexual

assault,

the police should

reasonably

anticipate that

it is crucial

to

save

clothing.

7

2

Although the Delaware

court

suggested

that

individual

agencies

should create guidelines

that

presume

in favor

of

preservation,

neither

it nor

any other

state

court

has mandated any

systemic reform.

Fur-

ther,, many

states

simply follow

the lead of Trombetta

and

Young-

blood.

73

The argument

for recognizing

stronger

duties

of

preservation

under

state constitutions

is further

supported

by

the developing juris-

prudence

in states

that

extend Brady's

penumbra

to include

due

pro-

cess

rights

of access to

experts and

to physical

evidence.

74

Notably,

the

Brady standard

requires

prosecutors

proactively

to disclose only

that

which has

exculpatory

value. Some

state courts

risk

hinging their

decisions

on a contradiction:

they

deem physical

evidence exculpatory

in

light

of what

may

be gleaned

from testing,

for the purpose

of

mak-

ing testing and experts

available; yet,

they impose

no duty to preserve

physical

evidence

because such

evidence

has

no


value.

It

is

nonsensical

to posit a

constitutional concern

to ensure that

the defense

be able to

test evidence in

the

prosecution's

possession

be-

cause it might

be exculpatory,

but

not

to evince a concern

to

ensure

that

the

prosecution

preserve such

evidence

in

the

first place. If

it is

important

that the state

be able to decide

which evidence

to keep

and

which to discard,

even if

such

evidence

has evident

exculpatory

value,

then it should

be equally

important

for the

state

to be

able to

decide

which evidence

in

its

possession

to

share and which to

withhold from

70

See

id.

at

752.

71

See id. at 752-53 (citing

United

States

v. Loud

Hawk,

628

F.2d

1139, 1152 (gth

Cir.

1976)

(Kennedy,

J., concurring)).

72 See id.

at

753.

Subsequent

to Youngblood and Rombetta, the Delaware

court

declined

to

adopt

the Supreme

Court's good faith

standard,

partly because

the

court

found that

defendants

could never

make the requisite showing

absent the

unlikely occurrence

of

a

police

admission

of

bad faith,

and partly because the

court

regarded

the

balancing approach

as one carefully tailored

to

both

the

defendant's and

the

state's interests. See

Lolly v. State, 611

A.2d 956, 959-60

(Del.

1992); Hammond v. State,

569 A.2d

81, 85-87

(Del. 1989)

(reaffirming

Deberry after

Youngblood).

73 See,

e.g.,

Wenzel

v. State,

815

S.W.2d

938,

940-41

(Ark.

2991)

(citing

Youngblood

and

rombetta to

support the

holding

that

a failure to

preserve

enough

evidence to permit defense

retesting did not

deprive the defendant

of a

fair

trial

because the evidence's

exculpatory

value

was

not

apparent);

see also

State

v. Steffes,

5oo

N.W.2d

6o8,

614 (N.D.

1993)

(holding

that

with-

out bad

faith, destruction of

an audiotape that

could establish innocence

did not implicate

state or

federal due process).

74

See

supra

pp.

1559-63.

1570

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16/27

DEVELOPMENTS SCIENTIFIC EVIDENCE

the

defense. Brady

and

its progeny resolved the latter issue in favor

of

the

defense, and consistency

requires that the

former issue

be resolved

on the same

lines. A state constitutional

rule that grants

access to evi-

dence

only

upon the happenstance

of whether

the state

has endeav-

ored

to keep

it

would protect

defendants' rights

only

haphazardly and

would create

incentives

for the

state

to

destroy

or

avoid

preserving

physical evidence.

B.

DNA Evidence

in the

Post-Conviction

Context

Recent

advances in

technology have

made it possible

for some con-

victed

people to vindicate themselves.

DNA

testing

was

not

invented

until

1985;

7

5

more

precise

forms

of testing,

requiring

significantly

smaller

and

less

pure

samples, have

only

much

more recently

been de-

veloped.

7 6

Consequently,

dramatic post-conviction

uses

of

DNA evi-

dence

have proliferated.

Scores of

convicted

felons

are petitioning

courts

to

allow

tests to be

performed on preserved

samples,

and

more

than

seventeen

of those exonerated

by post-conviction

DNA

testing

have

been

released.

7

7

z. Access

to

Testing.

Petitions

for access to

physical samples

for post-conviction

testing are

relatively

new.

No clear

statutory basis

for

granting

such requests exists

in most states,

78

and

requests

are

often

handled

in

a

discretionary

manner.

79

Generally,

when

re-

ported,

80

these

requests

have

met

with a

favorable

response.

Courts

7S

See G. Larry

Mays,

Noreen

Purcell

& L. Thomas

Winfree, Jr., Review

Essay: DNA

(Deoxyribonucleic

Acid) Evidence, Criminal

Law,

and Felony

Prosecutions:

ssues

and Prospects,

I6 JusT.

Sys. J. III 113 (1992).

76 See,

e.g.; Harrison

v.

State,

644

N.E.2d

1243, 1250-5I

Ind.

1995).

77 See,

e.g.,

Peter

Baker,

Wrongly

Imprisoned Va Man is

Freed:

Allen

Grants Pardon

in '84

Rape

Case, WASH.

PoST,

Oct. 22 1994,

at

Bi

(reporting

on

Edward

Honaker,

exonerated

and

freed through

executive

clemency after

serving

ten

years); James

McCarty,

DNA

Test

Lets Pris-

oner Go

Home, PLAIN

DEALER

(Cleveland),

Sept.

17, 1994,

at iA (reporting on

Brian

Piszczek of

Ohio, freed

because

of

DNA

testing

after

serving

four years in

prison); Mary

Neubauer,

Impris-

oned Ten

Years,

Man Freed

by

DNA Testing,

PHIL.

INQUIRER, Sept.

30, 1994,

at A3i (reporting

on

Frederick

Daye);

DNA Exclusions,

supra

note

41, at I (reporting on

Kerry Kotler

of New

York,

exonerated

and freed after

serving

over

io years

in

prison);

Sandra Skowron,

After

9

Years

in

Prison,

Test

Clears

Man of

Rape-Slaying,

DETROIT

FREE PRESS,

June 29, 1994,

at 5A

(reporting

on

Kirk Bloodsworth

of Maryland,

a

death row inmate

convicted

in 1984 of rape and

murder,

and exonerated

and freed

in

1993 as

a

result

of DNA

testing); Sharon

Cohen,

Dream Leads

to

a

Prison

Term Until

DNA

Evidence

Frees

Him, LA.

T ImEs, Sept.

I8, 1994,

at Ax (reporting

on

Steven

Linscott

of Illinois,

whose

DNA tests

at

retrial

exonerated him

from

a conviction of

mur-

der); see

also supra note 26.

78 See, e.g.,

People

v.

Callace,

573 N.Y.S.2d

r37,

138

(Suffolk County Ct.

r99I).

79

In

granting

such motions,

judges

have acknowledged

that

they lack

significant

direction

from precedent

but have expressed

concern

that

convictions

based on mistaken

identity

may be

prevalent

and

that

courts must

be vigilant and

flexible to remedy such

errors.

See,

e.g.,

Dabbs

v.

Vergari,

570 N.Y.S.2d

765

(Sup. Ct. I9go); Sewell

v. State, 592

N.E.2d

705, 707-08

(Ind.

Ct App.

1992).

80

Many

such requests, given

their unusual and

extra-procedural

nature, may

not

be

reported.

See

Telephone

Interview with Jon Oberman,

supra note

58.

1995]

1571



17/27

HARVARD LAW REVIEW

have fashioned two main theories

for granting the requests.

Some

courts

treat such requests as pursuant to a possible motion

for a new

trial

based

on

newly discovered evidence or

as pursuant to a

possible

habeas petition.

8

'

Locating

post-conviction testing rights

in

connection

with motions

for

new

trials based on newly

discovered

evidence, how-

ever,

may have limited application.

Many jurisdictions

only

allow

such motions within a limited

time

period,

ranging

from twenty-one

days

to two

years.

8 2

In many of the

cases

in which prisoners

seek

post-conviction testing, the convictions occurred more

than

two years

earlier,

and the forensic

tests

did not emerge within the statutory pe-

riod. Under

this theory of

post-conviction testing rights,

if

the

motion

for a new

trial

cannot

be

made, the court lacks the authority to order

the tests.

A

second

approach

to

post-conviction testing draws

authority

from

the

Brady obligation

to

reveal exculpatory

evidence to

the defense.

Some

state

courts go

beyond the

strict

reading of Brady

that merely

requires prosecutors to hand over evidence of

apparent

exculpatory

value in their possession

at or before

trial.

In

Dabbs v. Vergari,

83

for

instance, a

New York court

acknowledged

that

the

petitioner

had

no

statutory right

to post-conviction discovery,

but

held

that

he was still

entitled

to

be

informed

of

material

evidence

of

exculpatory

value.

84

The court argued

that

if the defendant

had

been

tried after

the

advent

of DNA

testing,

he

would

have been

entitled

to DNA testing and

that

he should not be

barred

from post-conviction tests because they did

not

exist

at

the

time

of

trial. Cases

subsequent

to

Dabbs

have

tended

to grant

such

motions

when

the

conviction rested

largely on

dubious

identification

evidence.

8s

8'

See, e.g.,

Callace,

573

N.Y.S.2d

at 138-4o (ordering discovery of samples and testing pursu-

ant to a statute

that

authorized

the

vacating of

convictions on the basis of newly discovered

evidence); Jenkins

v.

Scully, No. CIV-9g-298E, 1992 WL

32342,

at *1-*2

(W.D.N.Y.

Feb.

xi,

1992)

(ordering the state

to

produce

hair

samples for

DNA

testing

under

Rule

6

of

the

Rules

Governing Habeas

Corpus

Cases); Cerisse

Anderson, Convicted

Rapist

Wins

Order or

DNA Tests:

Judge Directs Use of 2

Separate

Techniques, 211 N.Y. L.J.

1 994)

(reporting

the

grant

of a

motion of defendant Terry Leon Chalmers

to

have DNA tests performed on preserved samples).

Post-conviction discovery

in preparation

for a

habeas petition

is rare but is

within the

court's

discretion. See ERwIN CHEMERINSKY, FEDERAL JURISDICTION §

15.3,

at

792-93

(994); Harris v.

Nelson,

394

U.S.

286, 290, 298-300

(1969).

82 For

a

recent survey of jurisdictions, see

Herrera v. Collins,

213

S. Ct. 853, 865-66 nn.8-il

1993).

83

570

N.Y.S.2d 765 (Sup. Ct. 199o).

84 See id. at 768. But

see

Callace, 573 N.Y.S.2d at 139

(criticizing

Dabbs for implying that

the state had

a

duty

to

preserve

evidence indefinitely

after

prosecution).

8s See, e.g., Sewell

v.

State,

592

N.E.2d

705,

708 (Ind. Ct. App. 1992) (granting

a

request

for

DNA testing

to re-open the question of

identity

from a 1981 conviction, and citing

Dabbs for

support);

State

v.

Thomas,

586 A.2d 250, 253

(N.J. Super. Ct. App.

Div. 2992) (holding that

fundamental fairness

demands

that testing

be

performed

in

a

case in

which the

state's

proof

is

weak

and

the record supports reasonable doubt).

A

similar theme was sounded

in Common-

wealth

v.

Brison,

6x8 A.2d

420

(Pa. Super.

Ct. 1992), which stressed

that

the evidence at trial

1572

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DEVELOPMENTS

SCIENTIFIC

EVIDENCE

Efforts

of the

more

recently

convicted

have

met

with more opposi-

tion. Much

of the

Dabbs

court's rationale

related

to

the

fact that

DNA

tests were

unavailable

at

trial.

When

such

tests

were available

at

trial

and

the

defense

knew of

samples that

could

have

been

tested,

motions

for

post-conviction

discovery

have

not

fared

well.

Courts

have held

that

the

defense

waived

any

right

to

testing

by failing

to

pursue

this

option

at

trial.

8

6

In

1994,

after

its

courts

had repeatedly

faced

the

question,

New

York

became

the

first state

to

pass a

statute

that

specifically addressed

post-conviction

DNA testing.

7

Applying

only

to

defendants

convicted

before

1996

this

law

directs that

a defendant's

request

for testing

shall

be

granted

if

evidence containing

DNA

materials

was

collected

in

connection with

the

trial and

if there

is a reasonable

probability

that

the verdict would

have been more

favorable

to

the defendant

if

DNA

tests

had

been

conducted

at

the

time

of

the

trial.

8

8

Other

states

should

take

note

of

New

York's

attempt

to

provide

needed

legislative

direction

in

this

area.

As

the

successes of

defendants

like

Charles

Dabbs

become known,

attempts

to obtain

post-conviction

testing

are likely

to increase.

In drafting

such

statutes,

however,

states

should

consider

some of the

limitations

of

New

York's

approach.

rested

only

on

the victim's

dubious

identification.

The trend appears

to be that

courts

will review

the trial

transcript and

will

grant

such

motions

if

the

evidence,

although possibly

strong

enough

to convict,

was

of

a kind

that the court

regards

as

less reliable,

such as

identification

by

a

victim

or eyewitness.

For

these

courts, the

fact

that testing was

not

available

at the

time of

trial

is not

alone

sufficient

to

necessitate

post-conviction

testing.

8

See,

e.g.,

People

v.

Brown,

618

N.Y.S.ad

z88, I89-9o

(Cayuga

County

Ct. 1994 ;

People

v.

Kellar,

605

N.Y.S.2d

486, 486

(App.

Div. 1993)

(finding

that a request

for DNA

testing

of a

sperm

sample did

not

seek

newly

discovered

evidence

because

the defendant

was

aware

of

the

possibility of

testing before

trial).

Two notable

exceptions

appear

in State

v.

Thomas,

586

A.2d

250

N.J.

Super.

Ct.

App. Div.

iggi), and State

v.

Hammond,

6o4

A.2d

793 (Conn.

1992 .

In

Th

Developments in the Law-DNA Evidence and the Criminal Defense (1995)-Libre

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