State Legislatures Magazine: June 2001

Editor's Note: This article appeared in the June 2001 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Posted July 23, 2001

Making Amends

Preserving the Evidence

Making Amends

The scientific accuracy of DNA can free the innocent. But state lawmakers have to decide who gets a second chance.

By Molly Burton
Frank Lee Smith proclaimed his innocence until the very end. After two eyewitnesses testified at trial that Smith was near the victim's house moments before the murder, he was sentenced to death for the 1985 rape and murder of an 8-year-old Florida girl. Judges denied Smith's appeals, even after one eyewitness later recanted her story.

Hearing of DNA technology and its use to exonerate the innocent, Smith's attorneys asked to have the crime scene evidence tested. While attorneys on both sides battled over the testing conditions, Smith died in prison of cancer. After his death, and another battle over the destruction of the evidence, prosecutors agreed to DNA testing. It revealed that Smith was innocent of the atrocious crime for which he was convicted almost 15 years earlier.

In fact, the DNA sample was matched to another man, considered a suspect during the initial investigation. Smith's case was the 78th exoneration based on DNA evidence. To date there have been 88 such exonerations, 10 of which were offenders on death row.

These cases have prompted legislators in 16 states to pass laws (and introduce bills in at least 20 others) to allow DNA testing after conviction under certain conditions. "DNA is irrefutable, whether to identify and convict or to exonerate. We've provided policy avenues to either," says House Majority Whip Marilyn Jarrett of Arizona, which enacted a post-conviction law last year.

Laws vary as to which offenders are allowed post-conviction testing, the procedures for obtaining a DNA test and whether or not evidence susceptible to DNA testing must be stored and preserved.

Attorney Barry Scheck, who runs the Innocence Project at New York's Cardoza School of Law, said that DNA testing results in favorable outcomes in four out of 10 requests. While these numbers may cast doubt on the credibility of the criminal justice system, some see it as an opportunity to correct past errors. DNA tests shed light on the reliability of eyewitness testimony, but "no one expects any type of system to be perfect; these laws add credibility because mistakes made can be righted," says Judge Ronald Reinstein of Arizona, one of two judges who serves on the U.S. Department of Justice's National Commission on the Future of DNA Evidence.

Illinois, Delaware, Minnesota and New York allow those convicted of any crime to request DNA testing. Arizona limits tests to those convicted of felonies, as do Michigan, California and Oklahoma. Tennessee and Washington restrict the procedure to offenders on death row or to those sentenced to life without the possibility of parole, but legislation is pending in both states to expand it. In Illinois, Michigan and Minnesota, the defendant must show that evidence was not previously tested, that identity was at issue during the trial and that the evidence was subject to a clear chain of custody to rule out any chance of contamination. California additionally requires that the petition clarify whether or not DNA raises a reasonable probability that the verdict would have been different.

Oklahoma created a system to first investigate cases of indigent incarcerated felons for whom DNA has a very real possibility of proving their innocence. Convicted offenders serving lengthy sentences or under sentence of death are given priority.

Washington requires inmates to request testing from the prosecutor rather than the court. If denied, the offender may appeal to the state attorney general. A Connecticut measure passed last year allows DNA evidence as a basis for a new trial.

PRESERVING THE EVIDENCE
But these measures are only as good as the quality and availability of the evidence. So legislatures also are addressing preservation and storage of DNA evidence. Arizona and Illinois require that evidence be preserved during the criminal proceeding and retained after trial. California and Michigan require evidence be kept until the offender is released. Though not included in the post-conviction DNA testing measure passed last year, Oklahoma Representative Jari Askins was successful in getting a preservation requirement for the term of the incarceration passed this session.

While experts stress the need for preserving DNA evidence after trial, it has to be done carefully.

"There has to be a sense of reasonableness about this," says Chris Asplen, executive director of the U.S. Department of Justice's National Commission on the Future of DNA Evidence. "If a crime occurred in a car, is it the government's responsibility to keep the whole car, or only the carpet pieces believed to contain evidence relative to the crime?

"And what is the remedy if evidence required to be preserved is lost, not retained or stored improperly?" he asks.

Under a Virginia bill passed this year, evidence must be preserved under standards set by the Department of Criminal Justice Services. The measure also allows preserving samples of the evidence if storage of the entire amount is impractical and bans appeals when testing is denied.

Arizona's measure also permits representative samples and allows the court to impose criminal sanctions for deliberately destroying biological evidence. Other states allow destruction of evidence if the defendant has been notified beforehand.

States without post-conviction DNA measures may be affected if federal judges in those states agree with a recent Virginia U.S. District Court case holding that state inmates may sue in federal court for DNA testing if denied testing by state officials.

The power of DNA to exonerate has captured the attention of Congress, as well. An Innocence Protection Act has been introduced in both houses, and would require states, in order to receive federal money, to certify that DNA tests are available to individuals convicted of certain crimes and that evidence has been preserved. Supporting the individual approaches states have taken in addressing post-conviction DNA testing, some state lawmakers question the appropriateness of a federal solution.

"It's easy to impose a one-size-fits-all mandate," warns Connecticut Representative Mike Lawlor. "It must be drafted carefully."

Criminal Justice Program

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