Federal court issues major DNA opinion


The Second Circuit Court yesterday released an important opinion for defendants seeking post-conviction DNA testing. The federal appeals court ruled that a lower court must consider whether Frank McKithen, a New York inmate convicted of attempted murder, has a constitutional right to have evidence in his case DNA tested. The lower court, the U.S. District Court for the Eastern District of New York, had previously dismissed McKithen’s case on procedural grounds. The case will now go before the same court again.

The circuit court’s decision begins:

Eighty-four years ago, Judge Learned Hand observed that “[o]ur procedure has been always haunted by the ghost of the innocent man convicted,” but posited, optimistically, that “[i]t is an unreal dream.” (United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923).)

Today, with the advance of forensic DNA technology, our desire to join Learned Hand’s optimism has given way to the reality of wrongful convictions — a reality which challenges us to reaffirm our commitment to the principle that the innocent should be freed.


more on the opinion

on Appellate Law & Practice, an appellate law blog.

Read the full opinion


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