Have you ever wondered what it takes to obtain DNA testing in a post-conviction case? Krystal R. Capasso, a former active duty Marine Corps Judge Advocate, wrote a law review paper detailing many of the issues surrounding DNA testing for the wrongfully convicted (the complete paper can be found here). Below is a brief summary.
The Fox Guards the Hen-house: Arbitrary and Inadequate State Statutes Governing Access to DNA Testing for the Wrongfully Convicted
Deoxyribonucleic acid (DNA) has been at the forefront of exonerations of the wrongfully convicted for decades now. However, current state created arbitrary and inadequate procedures for requesting DNA testing for post-conviction prisoners lead to factually innocent persons spending significantly more time confined or time spent outside of confinement as wrongfully convicted persons. These procedures include: not permitting access to DNA testing if the wrongfully convicted pled guilty or confessed to the crime; time limits imposed regarding how long the convicted have to request testing based on a claim of innocence; a lack of adequate safeguards for DNA preservation to include unnecessary timelines for destruction of evidence; no avenues to appeal denied DNA testing requests; denial of DNA testing to persons no longer in prison; denial of DNA testing for persons whose trial defense attorneys did not request testing; and denial of DNA testing for anyone not sentenced to death. Aside from their illogical and arbitrary nature, these statutes work to ensure the wrongfully convicted can never prove their innocence by blocking access to the evidence which could serve as the heart to a claim of actual innocence, new evidence, false evidence, or ineffective assistance of counsel in a writ of habeas corpus.
Regarding a solution, the easy answer is for all states to halt the common practices described, but without any real incentive outside of altruism, this will not happen. Therefore, the only practical solution is federal regulation. If a federal statute is passed which standardizes DNA testing access throughout the states and prohibits all of these practices then real change in wrongful convictions may occur.