Postconviction DNA Testing
The DNA testing law does not address potential remedies if exculpatory evidence
is revealed
By Michael Chamberlain
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Chamberlain |
California’s postconviction DNA testing law is set forth in Penal Code § 1405.
It was enacted in 2000 and amended in 2001. (Also in 2000, the California legislature
enacted Penal Code § 1417.9 as companion legislation, providing for the preservation
of biological evidence following felony convictions.) Section 1405 provides
currently incarcerated convicted felons the opportunity to seek DNA testing.
It does not, however, address potential remedies for the convicted person should
testing reveal exculpatory evidence. In that sense, it is simply a vehicle
for specialized discovery following conviction. Section 1405 includes the following
major components:
Appointment of counsel
Section 1405 provides for appointment of counsel to assist indigent inmates
prior to filing the actual testing motion. (§ 1405, subd. (b).) If the request
is properly made and counsel has not been previously appointed, the trial court “shall” appoint
counsel “to investigate and, if appropriate, to file a motion for DNA
testing . . . ”
(§ 1405, subd. (b)(3)(B).) A proper request for attorney assistance contains
(1) a statement by the inmate that he was not the perpetrator of the crime,
(2) a statement by the inmate that DNA testing is relevant to his assertion
of innocence, and (3) a statement by the inmate concerning previous appointment
of counsel under section 1405. (§ 1405, subd. (b)(1).)
The California Court of Appeal criticized this provision in In re Kinnamon (2005)
133 Cal.App.4th 316. It stated that “[t]he required information [in the
motion for appointment of counsel] does not include a theoretical or factual
showing of the relevance of DNA testing. A statement that DNA testing is relevant
suffices. The appointment of counsel is discretionary only if counsel has been
previously appointed under section 1405.” (133 Cal.App.4th at p. 321.)
According to the Kinnamon court, this is an overindulgent statutory
allowance: “The lax statutory standard will result in a wasteful expenditure
of time and money where appointed counsel does not file a motion because it
is not ‘appropriate.’ . . . In light of the deference owed
to final judgments, at the very least prisoners should be required to make
some showing that DNA evidence would raise a reasonable probability of more
favorable treatment in the trial court before counsel is appointed.” (Id.
at pp. 324, 325.)
Nonetheless, the Kinnamon court refused to interpret § 1405, subd.
(b), as permitting anything other than the mandatory appointment of counsel
where the basic criteria are met.
The DNA testing motion
The motion for DNA testing must be filed in the trial court that entered judgment
in the case. (§ 1405, subds. (a), (e).) This is the appropriate forum because
the factual orientation of the issue will require the judge to be as familiar
as possible with the underlying facts of the case. Subdivision (c) of § 1405
sets forth five substantive requirements for the testing motion. These showings
must be verified under penalty of perjury by the applicant. The motion must:
(1) “Explain why the identity of the perpetrator was, or should have
been, a significant issue in the case.”
(2) “Explain, in light of all the evidence, how the requested DNA testing
would raise a reasonable probability that the convicted person’s verdict
or sentence would be more favorable if the results of DNA testing had been
available at the time of conviction.”
(3) “Make every reasonable attempt to identify both the evidence that
should be tested and the specific type of DNA testing sought.”
(4) “Reveal the results of any DNA or other biological testing that
was conducted previously by either the prosecution or defense, if known.”
(5) “State whether any motion for testing under this section previously
has been filed and the results of that motion, if known.” (§ 1405, subd.
(c)(1)(A)-(E).)
Notice of the motion must be served on the county district attorney, the attorney
general, and the court, crime laboratory or police agency in possession of
the biological evidence. (§ 1405, subd. (c)(2).) Any party objecting to the
motion for testing has 60 days in which to file a responsive pleading.
Requirements for successful motion
Finally, subdivision (f) of § 1405 enumerates eight factually based criteria
that must be “established” for the motion to be granted. These
criteria generally echo the required content of the motion as discussed above,
but include the following elements that often fuel contention and merit further
discussion.
Subdivision (f)(2) requires the applicant to establish that “[t]he evidence
to be tested has been subject to a chain of custody sufficient to establish
it has not been substituted, tampered with, replaced or altered in any material
aspect.” For example, if in the course of a pre-DNA technology investigation
and trial the probative biological evidence could have been (or was) casually
handled by investigators, lab technicians, attorneys, court clerks or even
jurors, the resulting possibility of contamination may very well negate the
value of postconviction testing.
In other words, if a DNA profile other than the defendant’s on the crime
scene evidence is not necessarily inconsistent with his guilt, then there may
be reason not to have the evidence tested. This provision might also prevent
the applicant from submitting for testing biological evidence or “reference” samples
from third parties that were not originally collected and preserved in such
a way as to ensure their origin and authenticity.
Subdivision (f)(3) requires that the “identity of the perpetrator of
the crime was, or should have been, a significant issue in the case.” In
most cases, this would preclude successful DNA testing motions where the applicant
pleaded guilty or offered a consent defense to a sexual assault charge. The
court hearing the postconviction DNA testing motion would also have to consider
the totality of identification evidence available at trial in evaluating whether
identity was a significant issue. The court could weigh, for example, fingerprint
evidence, eyewitness testimony, party admissions, modus operandi evidence,
videotape evidence or even other DNA evidence.
Subdivision (f)(4) requires the applicant to make a “prima facie . .
. showing that the evidence sought to be tested is material to [his] . . .
identity as the perpetrator of . . . the crime.” As a general matter,
a prima facie showing may not be founded upon speculation (People v. Gonzalez (1990)
51 Cal.3d 1179, 1241, fn. 38) or conclusory allegations. (People v. Duvall (1995)
9 Cal.4th 464, 474.) Material evidence must “tend to establish
guilt” or be “‘directly probative of the crimes charged.’” (People
v. Bunyard (1988) 45 Cal.3d 1189, 1212, quoting People v. Thompson (1980)
27 Cal.3d 303, 330-332.) Applying these principles to postconviction DNA testing,
if the test results could only be inconclusive or inculpatory, the evidence
tested cannot be material within the meaning of subdivision (f)(4).
For example, if a homicide occurs near a picnic table in a public park, and
the convicted person requests that DNA testing be performed on two cigarette
butts found nearby, the court could very well conclude that the no prima facie
showing of materiality can be made. If the DNA on the cigarette butts does
not match the convicted person, that result is not necessarily inconsistent
with his guilt. Absent evidence supporting an alternative interpretation, the
cigarettes could have just as easily been smoked before the murder by innocent
picnickers. They would not be probative of the killer’s identity. On
the other hand, sperm collected on a rape kit swab may be very probative of
a rapist’s identity within the meaning of subdivision (f)(4), absent
evidence of consensual partners, multiple perpetrators or other complicating
factors.
Subdivision (f)(5) requires the applicant to demonstrate that “[t]he
requested DNA testing results would raise a reasonable probability that, in
light of all the evidence, the convicted person’s verdict or sentence
would have been more favorable if the results of DNA testing had been available
at the time of conviction.” This provision often represents the crux
of the argument in favor of, or in opposition to, postconviction testing. Its “reasonable
probability” standard mirrors the standard employed in evaluating whether
evidence is material under Brady v. Maryland (1963) 373 U.S. 83, such
that failure to disclose it to a defendant violates due process and fair trial
rights. In that context, favorable evidence is material “only where there
exists a ‘reasonable probability’ that had the evidence been disclosed
the result at trial would have been different.” (Wood v. Bartholomew (1995)
516 U.S. 1, 5, quoting Kyles v. Whitley (1995) 514 U.S. 419, 433-434.)
A reasonable “possibility,” in the Brady line of cases,
is insufficient to establish a “reasonable probability of a different
result.” (Strickler v. Greene (1999) 527 U.S. 263, 291, emphasis
in original; see also United States v. Agurs (1976) 427 U.S. 97, 109-110
[“The mere possibility that an item of undisclosed evidence might have
helped the defense, or might have affected the outcome of the trial, does not
establish ‘materiality’ in the constitutional sense.”].)
Instead, material “Brady evidence” would “put the whole case
in such a different light as to undermine confidence in the verdict.” (Kyles
v. Whitley, supra, 514 U.S. at p. 435.) Courts assessing whether the convicted
person can demonstrate a reasonable probability that the testing will be exculpatory
may consider other evidence of guilt, even if not introduced at trial. (§ 1405,
subd. (f)(5).)
Appellate remedy
An order granting or denying a postconviction DNA testing request is not appealable.
(§ 1405, subd. (j).) A party dissatisfied with the outcome may petition the
Court of Appeal for a writ of mandate or prohibition, however. The writ petition
must be filed within 20 days of the trial court’s order. (In capital
cases, the writ petition is filed in the California Supreme Court.)
The testing order
Once the parties stipulate to postconviction DNA testing, or once the testing
motion is granted over opposition, the court will issue an order setting forth
the parameters of the testing to be performed. An appropriate court order should
include the following details:
- An exact description of the evidence items to be tested. For example,
do all 20 hairs found in the victim’s hand require testing, or is a representative
sampling sufficient?
- The testing technology that will be used (e.g., STRs, Y-STRs, mtDNA).
- Which laboratory will do the testing, and how evidence will be transported
to that facility.
- Instructions regarding the order in which evidence items will be tested.
The items having the highest chance of containing probative and testable biological
evidence should be tested first, and the results may eliminate the need for
additional costly testing.
- A provision requiring the testing laboratory to assess the feasibility of
testing the evidence before actually proceeding.
- Acknowledgment that evidence may be consumed in the course of testing. In
the alternative, the testing laboratory could be instructed to notify all parties
if it appears that testing will consume the entirety of an evidence item.
- A requirement that the testing laboratory complete the testing of evidence
item(s), including dissemination of its report to all parties, before proceeding
with the analysis of any relevant reference samples from the defendant, victim
or third parties.
- All underlying data and laboratory notes will be made available to all parties
upon request.
- Agreement that the defendant will provide new known reference samples upon
request for comparative analysis.
- Permission for the testing laboratory to retest any evidence items it deems
necessary.
- Any DNA testing not contemplated by the order cannot occur without the mutual
consent of all parties or further court order. This may include testing the
same evidence items using different scientific methodologies.
- Instructions regarding disposition of the evidence following completion
of the DNA testing. Commonly evidence is retained by the testing laboratory
or returned to a law enforcement facility.
- Terms of payment for testing services. If the testing is performed by a
private laboratory, the Superior Court ordering the testing will be responsible
for payment. (Pen. Code, § 1405, subd. (i)(2).)
Conclusion
Some day, hopefully soon, every case prosecuted in which DNA evidence is available
and probative of identity will include the presentation of highly discriminatory
DNA evidence to the finder of fact. Following that milestone, postconviction
DNA testing will rarely, if ever, be required. Until then, however, the postconviction
DNA testing laws enacted by California and other jurisdictions are available
to those convicted offenders who can satisfy their criteria.
• Michael Chamberlain is a deputy attorney general in the California Department
of Justice’s DNA Legal Unit.
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- A person is convicted of misdemeanor sexual battery and sentenced to six
months in jail. While incarcerated, he makes a motion for postconviction DNA
testing pursuant to Penal Code § 1405. Section 1405, however, does not permit
the court to consider the merits of the defendant’s claim.
- California Penal Code § 1405 mandates the retention of biological evidence
in all felony cases for as long as the defendant remains incarcerated.
- A convicted felon who was imprisoned but has been released on parole may
make a motion for postconviction DNA testing because he is still subject to
government control and supervision.
- A prison inmate makes an unsuccessful motion for postconviction DNA testing
and is represented by counsel for that purpose. Three years later, he realizes
that other biological evidence may exist and requests counsel for purposes
of filing a second motion for DNA testing. He makes all the assertions required
by Penal Code § 1405(b)(1). The court has no discretion and must appoint counsel.
- A motion for postconviction DNA testing must be made to the trial court
that entered judgment in the case.
- A motion for postconviction DNA testing is researched, prepared and filed
by counsel on behalf of an incarcerated felon. In addition to her points and
authorities, the attorney drafts and signs a sworn declaration attesting to
her investigation of the case and addressing each of the five criteria listed
in § 1405(c)(1). No other documents are included. The motion should be denied
as procedurally deficient on its face.
- A prison inmate was convicted of murder in 1982. Before trial, the government’s
crime laboratory had conducted conventional serology (“ABO”) testing
to determine the blood type of certain bloodstains located at the crime scene.
That evidence was not introduced at trial. Twenty-five years later, in
making a motion for postconviction DNA testing, the convicted person must inform
the court of the 1982 serology testing and results.
- If the convicted person has appealed his conviction to the Court of Appeal,
notice of the motion for postconviction DNA testing must be served on the appellate
court as well as the trial court.
- An incarcerated felon files a motion for postconviction DNA testing on
May 4 and requests a June 4 hearing date. The motion is procedurally flawed.
- A person is convicted of second degree burglary. At trial, he took the
stand and admitted entering the store, but denied that he entered with the
intent to commit theft. Following conviction, he seeks DNA testing of the baseball
cap left by the burglar as he fled the store, arguing that it would show that
he did not wear the cap so was not the burglar. The trial court correctly denies
the motion for testing.
- A trial court hearing a motion for postconviction DNA testing may properly
consider whether the evidence sought to be tested has been contaminated through
contact with persons unrelated to the commission of the crime.
- To prevail on a postconviction DNA testing motion, the convicted person
must demonstrate a reasonable possibility that the verdict or sentence would
have been more favorable to the defense if the testing had been available at
the time of trial.
- A prison inmate was convicted of aiding and abetting a multiple-perpetrator
rape by restraining the victim. There was no evidence that he had sexual contact
with the victim. He requests postconviction DNA testing of the rape kit vaginal
swabs collected by medical personnel during the post-crime examination. His
request will likely be granted.
- In adjudicating a motion for postconviction DNA testing, the court considers
eyewitness’ hearsay statements in a police report. The statements had
not been received into evidence at trial. The court erred in doing so.
- Following the granting of an applicant’s motion for postconviction
testing, the District Attorney appeals the outcome, filing the notice of appeal
29 days after the trial court’s ruling. This was a timely request for
the appropriate appellate review.
- A court order that directs a laboratory to conduct “DNA testing” on
an item of evidence is improperly vague.
- A court should not order DNA testing when the testing itself may consume
the entirety of the evidence item.
- An inmate convicted of rape seeks postconviction DNA testing of (1) the
rape kit swabs, (2) his reference sample, and (3) the victim’s husband’s
reference sample. The court order for testing mandates simply that “all
items identified be subjected to DNA testing using PCR-STR technology” and
does not specify a testing sequence. This order is flawed.
- Following the issuance of an order for postconviction DNA testing pursuant
to § 1405, the Superior Court must bear all private laboratory testing costs
out of its own budget.
- A person convicted of rape makes a successful motion for postconviction
DNA testing. The test results exclude him as a source of the semen left by
the perpetrator. Section 1405 requires that the trial court grant his subsequent
petition for a writ of habeas corpus based on newly discovered evidence.
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