A National Effort to Improve State Post-Conviction DNA Testing Laws for the Innocent

By Michelle Feldman, state policy advocate

When DNA technology first emerged, it provided little help to the wrongfully convicted who often had exhausted all of their appeals and lacked statutory access to the DNA testing that could prove their innocence. Over the past two decades, all 50 states have adopted laws aimed at providing a clear legal avenue for the wrongfully convicted to access this crime-solving technology. However, despite the fact that DNA testing has exonerated 330 people and identified 142 real perpetrators, some of these laws contain more barriers than pathways to justice.  The Innocence Project recently embarked upon a campaign to improve post-conviction DNA testing laws to ensure fair and meaningful access for the innocent.

In some states, such as Oregon and Montana, defendants must meet a high standard of proof that essentially requires them to demonstrate innocence


before


a court can grant testing. This is a Catch-22 because the entire point of testing is to determine innocence


after


the results are in. The high standard has made it nearly impossible to access testing in both states. In Oregon, only one person has obtained testing since the law was enacted in 2001, and in Montana not a single request has been granted under the 2003 statute. Working with our local partners—the Oregon Innocence Project and Montana Innocence Project—we successfully lobbied lawmakers to fix the laws and create a more reasonable standard of review for a court to grant DNA testing.

Another limitation is that some state laws prohibit testing if DNA technology was available, but not conducted, at the time of the defendant’s original trial. In Nebraska, exoneree Ted Bradford made a compelling case at a legislative hearing for why the law should be changed. Ted spent 10 years in a Washington state prison for a rape he did not commit and was exonerated after testing on a mask worn by the perpetrator excluded him. He explained that under Nebraska’s law, a court might not have granted the testing that helped clear his name because the mask and DNA technology were both available at his trial, although the evidence was not tested. Thanks to his testimony and the work of the Nebraska Innocence Project the law was changed to remove this restriction.

Some state laws restrict the categories of people who are eligible for testing. As of last year, 14 states had an “incarceration requirement,” meaning that a defendant had to be behind bars to qualify for testing. While leaving prison may end one nightmare for an innocent person, he or she will likely continue to suffer the collateral consequences of a wrongful conviction including barriers to housing and employment, sex offender registration and social stigma. This year Montana, Oregon and Rhode Island passed laws removing the “incarceration requirement.” In New Jersey, a bill that would eliminate this restriction has passed the legislature and is awaiting action by Governor Christie.

In other states, testing is only accessible to defendants who committed certain types of crimes. In Maryland, eligibility was restricted to people convicted of murder, manslaughter and sexual assault. With the help of our partners at the University of Baltimore Innocence Project Clinic and the Mid-Atlantic Innocence Project, the law was expanded to permit testing for other violent felonies, such as robbery or kidnapping.

Another shortcoming in some state laws is the burden of proof required to test certain kinds of evidence. In 2014, the Texas Court of Criminal Appeals ruled in


State v. Swearingen


that defendants must prove the existence of microscopic material, such as skin cells or saliva, on evidence before testing may be granted—which is nearly impossible because it is invisible to the naked eye. However, two months later in


State v. Holberg


, the court noted an uncertainty in the law. To provide the guidance requested by the court, the Innocence Project worked with Senator Rodney Ellis to revise the law so that it clarifies that testing may be granted on key crime scene evidence “that has a reasonable likelihood of containing biological material.”

Thanks to the work of our network partners, committed lawmakers and Innocence Project supporters who reached out to their state representatives, wrongfully convicted people in these states will have a better chance of accessing DNA testing. We will continue working to strengthen laws across the country to ensure that post-conviction DNA testing is accessible to the innocent. It’s a matter of justice and public safety.