WRONGFUL CONVICTIONS CLASS  

Read NIJ, Postconviction DNA Testing: A Recommendation for Handling Requests (Executive Summary and chapters 1-6) and NIJ, What Every Law Enforcement Officer Should Know About DNA Testing

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1. In the April, 2001, issue of the American Bar Association Journal, see the article by Mark Hansen, "The Great Detective," at p. 37. The article’s subheading states, "DNA evidence, the best police investigative tool since the advent of fingerprinting, also helps free the innocent. As exonerations mount, more are questioning their faith in the criminal justice system."

2. Read the file titled titled "DNA Statistics Found Insufficient to Convict without Corroboration" at http://www.forensic-evidence.com/site/EVID/DNA_Watters.html. The file contains the opinion of the (British) Court of Criminal Appeals in the case of R. v. Watters, decided October 19, 2000.

3. An Interview With DNA Forensics Authority Dr. Bruce Weir can be found at

4. "Phenotype v. Genotype: Why Identical Twins Have Different Fingerprints," by Edward P. Richards, at

http://www.forensic-evidence.com/site/ID/ID_Twins.html

5. "Instructing Jury That DNA Testing Is ‘Reliable Scientific Technique’ Held Improper by Appeals Court," at http://www.forensic-evidence.com/site/EVID/EL_dna_instr_bad.html

6. For an in-depth discussion, see The Future of Forensic DNA Testing, published by The National Commission on the Future of DNA Evidence and NIJ.

Missouri adopted a statute allowing access to DNA evidence for post-conviction testing.  The Missouri Supreme Court had previously adopted a Court Rule providing access but vacated the Rule when the General Assembly adopted the statute.  See Mo. S. Ct. R. 29.17,  Post-Conviction Motion for Forensic DNA Testing not Available at Trial (adopted 2/20/01, vacated 8/21/01).  Read the rule carefully.  Under what circumstances is testing permitted?  Is this adequate?  What questions remain?

547.035. 1. A person in the custody of the department of corrections claiming that forensic DNA testing will demonstrate the person's innocence of the crime for which the person is in custody may file a post-conviction motion in the sentencing court seeking such testing. The procedure to be followed for such motions is governed by the rules of civil procedure insofar as applicable.

2. The motion must allege facts under oath demonstrating that:

(1) There is evidence upon which DNA testing can be conducted; and

(2) The evidence was secured in relation to the crime; and

(3) The evidence was not previously tested by the movant because:

(a) The technology for the testing was not reasonably available to the movant at the time of the trial;

(b) Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or

(c) The evidence was otherwise unavailable to both the movant and movant's trial counsel at the time of trial; and

(4) Identity was an issue in the trial; and

(5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing

3. Movant shall file the motion and two copies thereof with the clerk of the sentencing court. The clerk shall file the motion in the original criminal case and shall immediately deliver a copy of the motion to the prosecutor.

4. The court shall issue to the prosecutor an order to show cause why the motion should not be granted unless:

(1) It appears from the motion that the movant is not entitled to relief; or

(2) The court finds that the files and records of the case conclusively show that the movant is not entitled to relief.

5. Upon the issuance of the order to show cause, the clerk shall notify the court reporter to prepare and file the transcript of the trial or the movant's guilty plea and sentencing hearing if the transcript has not been prepared or filed.

6. If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held. If a hearing is ordered, counsel shall be appointed to represent the movant if the movant is indigent. The hearing shall be on the record. Movant need not be present at the hearing. The court may order that testimony of the movant shall be received by deposition. The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.

7. The court shall order appropriate testing if the court finds:

(1) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing; and

(2) That movant is entitled to relief.

Such testing shall be conducted by a facility mutually agreed upon by the movant and by the state and approved by the court. If the parties are unable to agree, the court shall designate the testing facility. The court shall impose reasonable conditions on the testing to protect the state's interests in the integrity of the evidence and the testing process.

8. The court shall issue findings of fact and conclusions of law whether or not a hearing is held.

547.037. 1. If testing ordered pursuant to section 547.035 demonstrates a person's innocence of the crime for which the person is in custody, a motion for release may be filed in the sentencing court.

2. The court shall issue to the prosecutor an order to show cause why the motion should not be granted. The prosecutor shall file a response consenting to or opposing the motion.

3. If the prosecutor consents to the motion and if the court finds that such testing demonstrates the movant's innocence of the crime for which he or she is in custody, the court shall order the movant's release from the sentence for the crime for which testing occurred.

4. If the prosecutor files a response opposing the movant's release, the court shall conduct a hearing. If a hearing is ordered, the public defender shall be appointed to represent the movant if the movant is indigent. The hearing shall be on the record. The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.

5. If the court finds that the testing ordered pursuant to section 547.035, demonstrates the movant's innocence of the crime for which he or she is in custody, the court shall order the movant's release from the sentence for the crime for which the testing occurred. Otherwise, relief shall be denied the movant.

6. The court shall issue findings of fact and conclusions of law whether or not a hearing is held. An appeal may be taken from the court's findings and conclusions as in other civil cases.