Developments in The Law-DNA Evidence and The Criminal Defense (1995) - Libre

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Citation: 108 Harv. L. Rev 1557 1994-1995

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DEVELOPMENTS -
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SCIENTIFIC EVIDENCE
1557
guide to applying scientific principles. Similarly, Daubert left unanswered the question whether a study's statistical significance level goes
to admissibility or to the burden of proof.
This Part has attempted to familiarize judges and practitioners
with the fundamental tools that courts will need to carry out Daubert
admissibility determinations. These tools should apply not only to the
Daubert prongs of admissibility, but also to the determination of how
statistical significance relates to the desired legal apportionment of
risk. Although courts should predicate admissibility on the parties'
presentation of their scientific evidence with an associated level of significance, courts should address both the magnitude of the results and
the level of statistical significance as burden of proof issues. Only
under this interpretation of Daubert can courts effectively assimilate
the scientific method into, rather than impose the scientific method
upon, the legal process.
V.
DNA EVIDENCE AND THE CRnhNAL DEFENSE
Technological advances in forensic science have introduced new

kinds of evidence into the legal system that bear more promise than
traditional forms of evidence but also interject greater risks of prejudice.' In theory, sophisticated laboratory analyses of physical evidence
can provide pinpoint precision in criminal identification as well as
conclusive exclusion of the wrongly accused. In practice, however, the
shortcomings of inculpatory tests and the significance of exculpatory
results may be underappreciated. 2 Using the experience with DNA evidence as a fulcrum for discussion, this Part examines some of the
challenges and benefits that new forms of forensic evidence present to
the criminal defense bar.
Although some challenges to the admissibility of inculpatory DNA
test results have been successful, 3 the inexorable trend of both state
I This Part will discuss DNA evidence specifically, but many of the arguments it advances
are applicable to other areas in which further progress in forensic science is anticipated. See, e.g.,
i PAUL C. GIANNELLI & EDWARD J. IMWINKELRIED, SCIENTIFIC EVIDENCE 317-I8, 357-59,
529-90 (2d ed. 1993) (discussing neutron activation analysis, bite mark and dental impression
identification, and genetic markers other than DNA).
2 See, e.g., Paul C. Giannelli, Criminal Discovery, Scientific Evidence, and DNA, 44 VAD.
L. REV. 791, 794 & n.xS, 796-97 (i99I) (discussing shortcomings in the DNA testing process);
Randolph N. Jonakait, Real Science and Forensic Science, I SHEPARD'S EXPERT & SCI. EviDENCE Q. 435, 441 (1994) (discussing the lack of peer review in forensic science publications and
the absence of oversight of laboratories); Barry C. Scheck, DNA and Daubert, I5 CARDozo L.
REV. 1959, 1982 (i994) ("[L]aboratory error rates are substantially higher than DNA profile estimates, no matter what population genetics method is used."). The use of DNA testing by the
defense for exculpatory purposes is relatively unexplored in the legal literature.
3 See, e.g., 2 GLANNILLI & IMWINKELRiED, supra note 1, at 30-31; COMIuITTEE ON DNA
TECHNOLOGY IN FORENSIC SCIENCE, NATIONAL RESEARCH COUNCIL, DNA TECHNOLOGY IN
FORENSIC SCIENCE 139-41 (1992); William C. Thompson, Evaluating the Admissibility of New
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court rulings 4 and state legislations favors a general policy of admitting DNA evidence, yet allowing defense attorneys to challenge and
undermine confidence in the particular results. Defense efforts will
have to refocus on exposing the still significant inaccuracies associated
with inculpatory DNA test results. Section A of this Part identifies
defendants' rights that pertain to DNA evidence before and during
trial, proceeding on the assumption that such evidence is deemed generally admissible. This section discusses whether the defense enjoys a
right to obtain state-funded expert witnesses in the DNA context, to
obtain lab reports and to examine lab technicians, and to order testing,
either to verify inculpatory results or to elicit exculpatory results. The
section then argues that the challenges associated with DNA evidence
raise larger questions about the practices governing preservation of evidence and that the current law is predicated upon assumptions more
fitting to traditional forms of evidence.
Section B of this Part considers the recent phenomenon of postconviction use of DNA evidence by defendants in collateral attacks on
their convictions. Forensic advances do not just enhance prosecutorial
resources to the detriment of the accused; they may also exculpate the
wrongly accused or convicted with an unprecedented degree of certainty. Most of the reliability problems attendant to inculpatory tests
do not plague exculpatory ones.6 This section examines postconviction access to testing, post-conviction preservation of samples,
and remedies available to prisoners who obtain exonerating results. It
argues that current legal approaches to exculpation are overly tailored
to more traditional, less reliable forms of evidence and recommends
responses to the emergence of more reliable exculpatory evidence.
Genetic Identification Tests: Lessons from the "DNA War," 84 J. CRIM. L. & CRIMINOLOGY 22,
30-32 (x993).
4 For a partial list, see 2 GLANNELU & IMWINKELRIED, cited above in note I, at 6 (Supp.
1994) (listing court decisions directing DNA admissibility when National Academy of Sciences
recommendations are followed) and Judith A. McKenna, Joe S. Cecil & Pamela Coukos, Reference
Guide on Forensic DNA Evidence, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 273, 285
nn.i9 & 22-24, 286 n.25 (994) (listing court decisions finding DNA testing generally admissible).
s For a partial list, see McKenna, Cecil & Coukos, cited above in note 4, at 277 n.3.
6 See COMMITTEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE, supra note 3, at 75; Richard Lempert, Some Caveats Concerning DNA as Criminal Identification Evidence: With Thanks
to the Reverend Bayes, 13 CAnozo L. REv. 303, 36 (i99i) (arguing that "in the case of a DNA
exclusion . . . the odds that the defendant was the source of the evidence DNA is [sic] zero
regardless of how likely it appeared beforehand that the defendant was the source" and that
"[h]ence acquittals based on DNA evidence alone are justified," but warning that contamination
and lab error present some risk of false exclusion); Scheck, supra note 2, at 1966-67 ("There has
never been much serious dispute about RFLP testing [a DNA testing method] being scientifically
valid for the purpose of proving an exclusion.").
X995]
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A. Defense Testing and Authentication

Inculpatory DNA evidence presents formidable difficulties for defense attorneys. Claims of "genetic fingerprinting" may exert tremendous persuasive power, even when the reality of the testing procedures
falls short of what is advertised. 7 Such appearances may be difficult
to overcome merely through cross-examination and verbal rehearsal of
the possible hazards and disputable interpretations encountered in the
process. Defense attorneys may need to hire experts to examine testing
procedures, to interpret results, and to explain contentious interpretations of data. Defendants may also need to submit samples for confirmatory retesting at an independent laboratory.
i. State-Funded Access to Experts. - The use of independent
experts to scrutinize and testify about state-obtained DNA tests is vital
to a strong defense. Although positive DNA results have an aura of
high scientific reliability, DNA tests involve a number of complicated
steps, many of which call for lab workers to eyeball results and to
make close judgment calls that may frequently be inaccurate and go
unverified.8 Moreover, so-called "fingerprinting matches" are really
only instances of high statistical probability, the reliability of which
depends upon the development of comprehensive, well-researched statistical pools to track the incidence of linked characteristics within various sub-populations. 9 The sufficiency of the background research for
many groupings is contested. 10 Thus, declarations of a "match" may
not be reliable. Having an independent expert, with the cachet of scientific credentials, to explain these intricacies to a jury may be essential to mounting a defense to a "genetic match."
Defendants have had increasing success using due process arguments to secure state-funded experts to scrutinize and rebut inculpatory DNA test results." State prosecutors have resisted the provision
7 See, e.g., COMMITrEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE, supra note 3, at 22,
25 (discussing the risk that inculpatory DNA evidence creates inappropriate expectations of scientific infallibility in identification); Joseph L. Peterson, John P. Ryan, Pauline J. Houlden & Steven
Mihajlovic, The Uses and Effects of Forensic Science in the Adjudication of Felony Cases, 32 J.
FORENSIC SCI. 1730, 1748 (987).
8 See, e.g., Giannelli, supra note 2, at 795 ('Proficiency test results of many common laboratory examinations are alarming."); Scheck, supra note 2, at i981-85; Thompson, supra note 3, at
38, 40, 53. Furthermore, assessing the sample may be difficult if the sample is impure. See, e.g.,
Albert T. Finch MI,Note, "Oops! We Forgot to Put It in the Refiigerator": DNA Identification
and the State's Duty to Preserve Evidence, 25 J. MARSHALL L. REV. 8o9, 817-I8 (1992); Ran-
dolph Jonakait, Stories, Forensic Science, and Improved Verdicts, 13 CARDozo L. REV. 343, 349
& n.17 (iggi); Anthony Pearsall, DNA Printing: The Unexamined "Witness" in Criminal Trials, 77
CAL. L. REv. 665, 67o-71 (1989).
9 See Lempert, supra note 6, at 305-14; Thompson, supra note 3, at 6I-89.
10 See, e.g., Scheck, supra note 2, at 1971.
11 The leading Supreme Court case on provision of experts generally, Ake v. Oklahoma, 470
U.S. 68 (1985), provides that indigents have a constitutional due process right to a state-funded
psychiatric expert in capital cases. The Court attempted to assess whether access to an expert
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of state-funded DNA experts,12 on two grounds: that attorney preparation and cross-examination should suffice to expose any flaws in the
testing process, and that an independent expert was unnecessary because the DNA testing was performed by a private laboratory, rather
than a presumably partisan state official. These arguments have met
with increasing disfavor. 1 3 For example, in Dubose v. State,' 4 an Alabama appellate court ruled that an indigent defendant in a capital
case had the right to have a state-funded DNA expert to examine the
evidence and to testify as to its weaknesses.' 5 The court noted that
the presentation of DNA evidence has tremendous persuasive power
and, hence, that the judicial consideration of such evidence requires
supervision and caution; cross-examination, it warned, might not be
sufficient to counter the aura of precision generated by the statistical
probabilities cited by a scientific expert.' 6 The court further noted
that, although the experts testifying for the state were employed by an
independent laboratory, they "had a vested interest in the success of
their company" and in getting their results into court.17 The court
pointed to the constructive role that independent defense experts had
played in other cases, in which they had forced the state's expert witnesses to alter their testimony in response to criticisms and to adjust
their laboratory methods and statistical databases.' Likewise, a Virginia appellate court ruled that a defendant in a non-capital rape trial
was wrongly denied the services of a DNA expert when the state's
only evidence aside from a DNA test was a victim's statement about
figured among the "basic tools" necessary for an adequate defense. Id. at 77 (citing Britt v. North
Carolina, 404 U.S. 226, 227 (1971)). Subsequent applications of this test by lower courts have
expanded the range of types of cases and experts to which this guarantee applies, acknowledging
that other experts may be as essential as psychiatric experts. For instance, the Eighth Circuit
extended the Ake privilege to encompass access to a hypnosis expert to counter the state's hypnosis-elicited eyewitness testimony. See Little v. Arinontrout, 835 F.2d 2240, 1243 (8th Cir. 1987),
cert. denied, 487 U.S. 120 (1988); see also Moore v. Kemp, 809 F.2d 702, 712 (iith Cir.) (concluding that an expert must be provided if there is a reasonable probability that the expert would
be of assistance and if denial would be fundamentally unfair), cert. denied, 481 U.S. 1054 (2987).
12 See, e.g.,
Dubose v. State, No. CR-89-359, 2993 WL 382482, at *io, *32, *34 (Ala. Crim.
App. Sept. 30, 1993),affid,
No. 293o827, 1995 ,VL224653 (Ala. Mar. 24, 1995); Cade v. State, No.
92-142, 1994 WL 225289, at *5 (Fla. Dist. CL App. Apr. 8, 1994); State v. Edwards, 868 S.W.2d
682, 698 (1993). The issue of a right to DNA experts has not been confronted in any reported
federal case.
13 See Dubose v. State, No. CR-89-359, 2993 WL 381482 (Ala. Crim. App. Sept. 30, 1993);
Husske v. Commonwealth, 448 S.E.2d 331, 339 (Va. CL App. 1994). But see State v. Derr, 451
S.E.2d 732, 749 & n.23 (W. Va. 1994) (dismissing without discussion defendant's claim of error in
the trial court's denial of a motion for a continuance to obtain a DNA expert).
14 No. CR-89-359, 2993 WL 381482 (Ala. Crim. App. Sept. 30, 1993).
15 See id. at *37.
16 See id.at *33-*35.
17 Id. at *33.
.
18 See id.at *36-*37
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the rapist's ethnicity. 19 That court, citing Dubose, noted both the significance of the evidence to the state's case and the state's failure to
show that a legitimate interest would be jeopardized by an independ20
ent examination of the data.
Recently, however, the Indiana Supreme Court resisted this trend
21
and held that access to an independent DNA expert is not required.
It regarded the private laboratory as neutral and held that the DNA
tests involved precise measurements insufficiently disputed to warrant
an additional expert.2 2 Other state courts that have denied indigent
defendants access to a state-funded DNA expert have not been hostile
in principle to such access, but have complained that defense attorneys

have failed to make sufficiently particularized demonstrations of the
23
need for an expert.
2.
Access to Laboratory Records and Samples. -
Effective re-
buttal of inculpatory DNA evidence may require access not only to an

independent expert, but also to laboratory records and physical samples for retesting. Many scientific experts believe that results from a
single round of testing should be confirmed through blind retesting in
order to ensure accuracy. 24 Retesting and access to records may be
particularly important because many states rely on private labs that
are not subject to strict regulatory oversight to guarantee adherence to
secure testing procedures and scientific guidelines. Significantly, such

labs depend on the state for revenue and, in particular, depend on the
25
Reliability problems may
satisfaction of police and state prosecutors.
26
well.
as
testing
laboratory
state
plague
19 See Husske v. Commonwealth, 448 S.E.2d 331, 332, 340 (Va. Ct. App. 1994). Similarly, in
Polk v. State, 612 So. 2d 381 (Miss. 1992), the Mississippi Supreme Court found analogies between the complexity of psychiatric and DNA evidence compelling and declared that "due process
considerations require that a defendant have access to an independent expert" to analyze the
State's evidence. Id. at 394.
20 See Husske, 448 S.E.2d at 335.
21 See Harrison v. State, 644 N.E.2d 1243, 1252-54 (Ind. i995).
22 See id. at X254 (noting, however, that the DNA evidence was not necessary for the
conviction).
23 See, e.g., Cade v. State, No. 92-142, 1994 WL 115289, at *4 (Fla. Dist. CL App. Apr. 8,
1994); State v. Edwards, 868 S.W.2d 682, 698 (Tenn. Crim. App. i993). In State v. Mills, 420
S.E.2d 114 (N.C. 1992), the North Carolina Supreme Court denied a state-funded expert because
the request was too vague but did not set a per se rule against granting DNA expert access. See
id. at xig; see also State v. Moseley, 449 S.E.2d 412, 425 (N.C. 1994) ("Defendant was provided
with a DNA expert to reevaluate and challenge [the state expert's] conclusion.").
24 See Jonakait, supra note 8, at 327-28; Scheck, supra note 2, at I969-7o.
25 Some legislatures are paying more attention to the problem of inadequate laboratory oversight New York recently passed a statute that, in addition to establishing a database of
criminals' DNA profiles, sets minimum standards for lab accreditation. See N.Y. ExEc. LAW
995-a to 995-f (McKinney Supp. 1994).
26 One disturbing example involved a state technician, Fred Zain, who misrepresented his
scientific credentials and frequently perjured himself by falsifying and exaggerating results about
blood and hair samples to make them appear inculpatory. See In re Investigation of the W. Va.
State Police Crime Lab., Serology Div., 438 S.E.2d 501, 503-08 (W. Va. 1993); Tuffiash v. State,
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Courts have generally, although not uniformly, been amenable to

defense requests for access to samples for testing as well as to the
records of the laboratories and lab technicians, 2 7 but they have been
unwilling to enforce such requests broadly. Some state courts, in inaugurating the admissibility of DNA evidence, have stressed the importance both of defense retesting and of defense oversight of lab
procedure. For instance, when the Minnesota Supreme Court first
ruled DNA evidence admissible, it held that state discovery rules
should be interpreted to require access to lab reports.2 8 The court also
noted that, although ideally defendants should have access to samples
to check the state's results through independent testing,2 9 evidence
may be consumed in the initial round of testing, a possibility that underscored the importance of providing defendants with access to laboratory data and methodology. 30 Although courts have respected the
right of access, they have been unwilling to extend the reach of that
right. No state court has yet required that the state preserve samples
to permit retesting, or that state officials forbear from testing or introducing test results when the available sample size would not permit
duplicative testing.3 1 In Jenkins v. State,3 2 a state court dismissed an
appellant's complaint that his Sixth Amendment right to confrontation
was abridged by the state's failure to call the lab technician to testify.
The court found the technician's absence non-prejudicial because his
878 S.W.2d 197, 200 (Tex. Crim. App. 1994) (ordering consideration of a motion for a new trial in
light of Zain's potentially fabricated testimony concerning defendant's blood); State v. Derr, 451
S.E.2d 731, 748-49 (W. Va. 1994) (permitting criminal defendant to seek post-conviction habeas
corpus relief because evidence in the trial had been tested by Zain); cf. Miller v. Pate, 386 U.S. x,
6-7 (1967) (reversing conviction because retesting of "bloody" shorts revealed that they were
stained only with paint and showed that the state's lab lied about the evidence). At least two
people have been freed in light of the revelation of Zain's perjury, and hundreds of convictions
are now under review in West Virginia and Texas. See Sau Chan, Scores of Convictions Reviewed as Chemist Faces Perjury Accusations, LA. TImEs, Aug. 21, 1994, at 32A.
27 See, e.g., United States v. Yee, 129 F.R.D. 629, 63o, 636 (N.D. Ohio i9go) (allowing discovery of FBI lab reports on DNA tests); Giannelli, supra note 2, at 8x-x6; Thompson, supra note
3, at 96-ioo.
28 See State v. Schwartz, 447 N.W.2d 422, 427 (Minn. 1989).
29 Strangely, such requests are rare. See Rockne P. Harmon, Legal Criticisms of DNA 7ping:
Where's the Beef?, 84 J. CRim. L. & CRIMNOLOGY 175, 176 n.7 (1993); Jonakait, supra note 8, at
348; Peter J. Neufeld, Have You No Sense of Decency?, 84 J. CRiM. L. & CRIMNOLOGY x89, 1go
(1993) (estimating that defense counsel seek independent assessment in fewer than five percent of
cases involving inculpatory tests).
30 See Schwartz, 447 N.W.2d at 427.
3 See, e.g., People v. Griffin, 761 P.2d 103, 107-09 (Cal. 1988) (finding no due process violation when a sample is fully consumed in the testing process); Commonwealth v. Francis, 648 A.2d
49, 52 (Pa. Super. Ct. 1994) (finding no due process violation when a.sample was unanticipatedly
fully consumed in testing). Ironically, one court has required that post-conviction testing by the
defense not consume the full sample. See Hinton v. Commissioner of Correction, Nos. CV-88-588
& 86-167, x99o WL 269448, at *4 (Conn. Super. Ct. June 22, i99o).
32 627 N.E.2d 789 (Ind. 1993), cert. denied, iis S. Ct. 64 (1994).
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DEVELOPMENTS -
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supervisor testified and the technician's lab notes were introduced at

trial.33
Any asymmetry between the treatment of requests for defense experts and the enforcement of scientific safeguards, such as doubleblind testing and defense oversight of lab procedures, is perplexing. If
courts recognize that the DNA testing procedure is sufficiently complex to warrant the services of a counter-expert to evaluate the reliability of the results, then it is strange that they are not more willing
to enforce other measures to ensure the reliability of the process. Failure to enforce defendants' rights of access to and oversight of lab procedure and technician behavior may reduce the effectiveness of the
state-provided defense expert, for much of what needs to be checked
and called into question are the methods34 and judgment calls made by
particular people in the testing process.
3. Duties to Test. - While state courts are moving toward modest protections for defendants facing inculpatory DNA evidence, they
have refrained from requiring that tests be performed. Courts have
rejected claims of inadequate counsel based on the grounds that defense attorneys failed to request testing, even though this failure may
permanently bar defendants from access to such evidence. 35 Such
courts have considered the failure to have tests performed to be a strategic choice on the part of defense counsel. Because tests may work
against the defense should the results be inconclusive or inculpatory,
defense counsel may reasonably forbear from taking such a risk on
36
behalf of their clients and may pursue a safer strategy.
Many courts have also rejected the notion of a state obligation to
test. The Arkansas Supreme Court reversed a lower court's order that
the prosecuting attorney perform DNA tests on the defendant's samples. The court ruled that the lower court lacked the authority to dictate the prosecution's investigation technique and noted that no due
process violation obtains when the state fails to use a particular investigatory technique. 37 In New York, a court rejected the defendant's
33 See id. at 794.
34 Access to a technician's notes and not to the technician himself precludes defense crossexamination to probe the reliability of particular technicians; such probing might make a difference in cases that involve perjurious technicians like Fred Zain. See supra note 26.
3S See infra pp. 1571-74.
36 See, e.g., Thompson v. State, 492 N.W.2d 410, 413-14 (Iowa 1992); State v. Williams, 861
S.W.2d 670, 678 (Mo. CL App. 1993); see also Schrier v. State, 347 N.W.2d 657, 66i, 663 (Iowa
1984) (holding that failure to challenge the state's scientific evidence and to submit blood type
tests for retesting did not constitute ineffective assistance). Similarly, failure to present independent expert witnesses has not been found to amount to ineffective assistance of counsel. See State
v. Montalbo, 828 P.2d 1274, 1283 (Haw. 1992); People v. Mehlberg, 618 N.E.2d x68, 1200 (Ill.
App. CL), appeal denied, 624 N.E.2d 813 ill. 1993); People v. MIles, 577 N.E.2d 477, 485 ll.
App. CL), appeal denied, 584 N.E.2d 136 (fil. i99I).

37 See State v. Pulaski County Circuit Court, 872 S.W.2d 414, 415 (Ark. 1994). The court's
hostility may have been directed at the attempt to dictate the prosecution's activities; a defense
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argument that a failure to perform tests implicated his constitutional

rights to discovery of exculpatory evidence stemming from Brady v.
Maryland.38 It held that the failure to perform tests did not violate
the Brady rule because yet-untested evidence was only of potential
39
and purely speculative exculpatory value.
There are strong legal grounds, however, for requiring testing to be
performed at the request of the defense. In civil suits, an indigent
man facing a paternity claim has a due process right to state-funded
blood testing.4 0 Such a right in the civil context lends itself naturally
to extension to the criminal arena. Further, in light of the FBI's research showing that DNA testing yields fully exculpatory results in
over thirty percent of tests of samples from people the police consider
principal suspects, 4 1 it is arguable that the exculpatory value of such
tests is not purely speculative. Dictating that some indication of the
exculpatory value of the particulartest be present in order to activate
Brady requirements is problematic because such proof could never
emerge for evidence that required further investigation before it revealed its nature. Such evidence, however, may be the most important
for the defense to have access to and for the judicial system to consider. If the defense is willing to run the risk of inconclusive or inculpatory results, requests for testing should be accommodated.
4. Preservation. The qualified consensus that defendants
should enjoy rights to DNA experts, to access to lab reports, and to
their own tests raises questions about what duties of preservation of
samples attach to the state and whether these duties will have to be
expanded to accommodate the justice system's growing reliance on fo-
request for state-funded independent testing might have been successful if it had not asked that
the state's investigation take a particular form. See id.
38 373 U.S. 83, 86-88 (1963) (holding that the prosecution must disclose material evidence
upon request); see also United States v. Agurs, 427 U.S. 97, 110 (1976) (holding that the prosecution must disclose exculpatory evidence, even without a defense request).
39 See People v. Buxton, 593 N.Y.S.2d 87, 89 (App. Div. 1993). But see Dabbs v. Vergari,
570 N.Y.S.2d 765, 767-69 (Sup. Ct. 19go) (holding that a defendant was entitled to post-conviction testing on the grounds that his Brady rights to disclosure of evidence of exculpatory value
would have granted him a right to have testing performed at trial and that, because such tests
were unavailable at the time of trial, he should enjoy such a right after conviction); Prince v.
Superior Court, xo Cal. Rptr. 2d 855, 858 (CL App. 1992) (holding that, because enough material
existed for independent testing, the defense would be permitted to conduct its own non-discoverable testing).
40 See Little v. Streater, 452 U.S. 1, 17 (I98x).
41 See COMMTTEE ON DNA TECHNOLOGY IN FoRENsIc SCIENCE, supra note 3, at 88, 156;
DNA Exclusions: New Groundsfor Attacking Old Convictions 7 Crim. Prac. Man. (BNA) No. I,
at 6, 8 (Jan. 6, 1993) [hereinafter DNA Exclusions]; Colman McCarthy, DNA Testing and Judicial
System's Flaws, WASH. PosT, Mar. x6, 1993, at Cxo.
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DEVELOPMENTS -
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rensic evidence. Federal and state approaches to the preservation of

evidence vary considerably, 4 2 and much evidence is discarded or lost.4 3
Although the Brady line of cases introduced the constitutional requirement that the prosecution alert the defense to all exculpatory evidence and make material evidence favorable to the defendant available
upon request, the Supreme Court has twice declined to interpret the
Brady protection to encompass duties of preservation. In Californiav.
Trombetta,"4 breathalyzer testing consumed the samples, and the police
took no additional samples to allow for defense verification. 45 A unanimous Court declined to find a constitutional error in the state's failure to take and preserve samples. 46 The opinion emphasized the
reliability and the regulatory oversight of the breath-analysis machinery, the fact that the test was performed twice at the scene, and the
47
good faith conduct of the police in following their settled procedures.
A constitutional violation would occur only when the police discarded
material evidence of "apparent" exculpatory value and "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." 48
Trombetta's emphasis on the high reliability of the machinery and
on the virtual superfluity of further tests left open the possibility that,
if there is a higher chance that retesting would exonerate, the state
might labor under a stronger duty to preserve samples for later testing.
The Court's decision in Arizona v. Youngblood 49 cast some doubt on
this reading, but did not entirely foreclose it. In Youngblood, defense
counsel sought access to an assault kit and clothing to perform bloodgroup tests that might exonerate the defendant of charges of sexual
assault., o Such tests proved impossible because the police had failed
to store the samples properly.,5 The trial court nonetheless proceeded,
but instructed the jury that if it found that the state had destroyed or
lost evidence, it should infer that the evidence would have been
42 See Finch, supra note 8, at 820-28. The duty to preserve in civil cases is, strangely, much
higher than the state's duty to preserve in criminal cases. See David R. Reed & L. Anthony
DEF., Jan.
1991, at II, 11-14 (discussing the duty to preserve evidence in the products liability context).
43 See Giannelli, supra note 2, at 81g.
Lehr, Preservationof Evidence and Its Role in Product Liability Litigation, FOR THE
44 467 U.S. 479 (1984).
4S See id. at 482-83.
46 See id. at 491.
47 See id. at 481 & n.x, 483, 488-89.
48 Id. at 489. The Court deemed the likelihood small that retesting would be exculpatory,
and reasoned that the ability to expose the few opportunities for mechanical failure constituted
sufficient due process protection. See id. at 489-go.
49 488 U.S. 51 (1988).
50 See id. at 54.
S1 See id. at 53.
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favorable to the defendant.5 2 The Supreme Court rejected Youngblood's argument that the mishandling of the samples deprived him of
his due process rights. The Court acknowledged that the likelihood of
exoneration was greater than in Trombetta, but distinguished
Trombetta by observing that the state's case in Youngblood did not
rely upon results derived from absent evidence.,5 3 It found that the
"apparent exculpatory value" standard was not satisfied, because no
tests had yet been performed,5 4 and held that failure to preserve "potentially useful evidence" does not constitute a due process violation
unless there is evidence of bad faith.,5
Youngblood and Trombetta, taken together, signal the Court's reluctance to assign strong duties of preservation to the state. Nevertheless, scenarios likely to arise in the context of DNA evidence point to
important, as yet unresolved issues in the federal preservation context.
First, Youngblood's holding may have depended upon the trial court's
instruction directing a negative inference against the state regarding
the lost evidence.5 6 Youngblood may be read to suggest that instructions of this sort are necessary to avoid a due process violation when
potentially useful evidence, such as blood that could be tested for
DNA identification, has been destroyed. Such instructions could be
exploited by defense counsel to compensate for the absence of evidence
for testing.
Second, Youngblood leaves unclear what constitutes "bad faith" on
the part of the state. This lacuna is significant, not just for the difficulties it presents in evaluating police conduct in particular cases, but
also for its failure to provide guidance regarding the systematic treatment of forensic evidence. The facts in Youngblood are murky in this
regard, but in Trombetta, the Court may have been appeased by the
fact that systematic rules and practices were in place and were gener-
52 See id. at 54. Youngblood was nevertheless convicted on the basis of a photographic lineup
identification. See id. at 53--S4.
53 See id. at 56.
54 The Court was unwilling to speculate about the possible significance of the destroyed
materials and expressed reluctance to "impos[e] . . . an undifferentiated and absolute duty to
retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Id. at 56 & n.*, 58.
SS Id. Justice Stevens departed from the majority holding and acknowledged that "there may
well be cases in which the defendant is unable to prove that the State acted in bad faith but In
which the loss or destruction of evidence is nonetheless so critical to the defense as to make a
criminal trial fundamentally unfair." Id. at 61 (Stevens, J., concurring). Justice Stevens's concurrence has been influential in state decisions on preservation. Examples include Ex parte Gingo,
6o5 So. 2d 1237, 1241 (Ala. 1992), cert. denied, 113 S. Ct. 967 (x993); Thorne v. Department of
Public Safety, 774 P.2d 1326, 133o n.9 (Alaska x989); State v. Matafeo, 787 P.2d 671, 673 (Haw.
i9go); and Commonwealth v. Henderson, 582 N.E.2d 496, 497 (Mass. 1991).
56 Justice Stevens's concurrence cited this factor as essential. See Youngblood, 488 U.S. at
59-6o (Stevens, J., concurring).
,9951
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ally followed, although the police erred in the particular case.5 7 The
background assumption here matters a great deal. Although many jurisdictions habitually follow some set of preservation practices, such
practices vary widely from locality to locality and are not uniformly
regulated by federal or state governments.58 Some jurisdictions retain
evidence until appeals are exhausted, while others simply store the evi-
dence until more storage space is needed. 9 The Constitution may not
guarantee a remedy when evidence has been inadvertently destroyed
in a particular case contrary to sound common practice, but it does

not follow that failure to establish defensible systematic approaches to
preservation also passes constitutional scrutiny.60 In the late ig8os,

the full and growing potential of physical testing was not entirely ap-
preciated. More recently, as techniques have vastly improved and as

physical evidence and analysis have gained prominence, both the tre-
mendous exculpatory and inculpatory power of forensic testing have

become apparent. In the contemporary evidentiary context, failure to
develop express guidelines for routine preservation and storage of

physical evidence should now be taken to indicate bad faith on the
part of the state in an attempt to manipulate the pool of available
61
evidence.
Third, Trombetta and Youngblood did not issue clear directives for
cases in which the state seeks to introduce incriminating results from
tests, but has discarded the samples. Defendants who complain that
their inability to retest the samples violates due process may have a
more colorable claim than a superficial reading of these cases would
suggest. The majority opinion in Youngblood downplayed the prejuS7 Cf State v. Steffes, 5oo N.W.2d 6o8, 613 n.5 (N.D. 1993) ("The haphazard handling and
destruction of evidence, which actions are potentially prejudicial to the accused, may warrant
different rules if destruction of evidence is commonplace.").
S8 See Telephone Interview with Jon Oberman, Attorney, Innocence Project (Oct. i9, 1994);
Telephone Interview with Mark Stolorow, Director of Operations, Cellmarks Diagnostic Laboratory, formerly of the Illinois Forensic Science Laboratory (Jan. i3, x995).
59 See DNA Exclusions, supra note 41, at 8.
60 An analogy may be helpful here. One author has compared Youngblood with United States
v. Leon, 468 U.S. 897 (1984), which allowed the admission of evidence obtained from an invalid
search warrant when police acted in good-faith reliance on its validity. The author notes that
both cases find constitutional violations in police conduct only when there has been bad faith.
See Matthew H. Lembke, Note, The Role of Police Culpability in Leon and Youngblood, 76 VA.
L. REv. 1213, 1230-35 (iggo). Although Lembke pursues the comparison in order to attack the
bad-faith requirement in both cases, even more may be harvested from the comparison. In Leon,
the Court sought to ensure that the state's efforts would not be frustrated in cases involving goodfaith detours from search and seizure rules. But that holding did not, it seems, imply that background rules governing search and seizure were not required. In the preservation context as well,
the Court seems to have assumed that background rules governing preservation exist, and that
the Youngblood snafu is just that - an isolated departure from reasoned regulations governing
preservation practices. The Court's opinion should not be taken to countenance arbitrary treatment of samples.
61 For another argument supporting this proposal, see Finch, cited above in note 8, at 827,
834 (rejecting the bad faith test and arguing for a potential exculpatory value test).
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dice to the defendant because the lost evidence was not used by the
prosecution. 62 Whether or not the state's use of the evidence should
be determinative of the level of prejudice to the defendant, the burden
on the defense is much higher when the state uses powerful scientific
evidence that the defense may not examine and verify. Asymmetrical
access to evidence is particularly problematic in the DNA context,
given the overpowering rhetorical force of putative genetic matches,
the enhanced risk of inaccuracy, and the fact that DNA evidence is
typically presented in prosecutions for crimes such as rape or murder,
the
in which the stakes are very high. 63 These factors justify limiting
64
holding of Trombetta to simpler, more reliable forms of testing.
The DNA example also poses a challenge to the standard interpretations of the apparent exculpatory value requirement advanced in
Trombetta and echoed in Youngblood. Two possible interpretations of
this standard are available. On the first, traditional view, untested evidence such as blood or semen may seem, as it did to the Court, to
lack both apparent and exculpatory value. Such evidence may have
exculpatory value, but this value is not apparent: it only reveals itself
upon testing. On the other hand, the evidence may well have no exculpatory value at all, and may even be inculpatory. As the DNA
example demonstrates, this interpretation of the apparent exculpatory
value standard seems forced and arbitrary. Why should the law favor
the preservation of evidence whose nature is transparent over the preservation of more opaque evidence that only reveals itself upon testing,
especially if the opaque evidence may be more informative and may
62 See Youngblood, 488 U.S. at 56.
63 Cf. rombetta, 467 U.S. at 48r (analyzing preservation standards for a breathalyzer test in a
drunk driving case).

64 The ability of the defense to introduce doubt, through commentary and cross-examination,
is insufficient in the DNA context to constitute the "comparable evidence" envisioned in
Trombetta. Without access to the DNA evidence, either as it is being tested or later, the disadvantage to the defense may be so great that it precludes a fair trial. Trombetta and Youngblood
seem to suggest that the defendant may have a right to demand that the DNA evidence be excluded because any minimally sufficient avenues for rebuttal have been foreclosed.
When initial testing has been performed, it is less clear that the defendant should be constitutionally entitled to a jury instruction directing the inference that defense testing would have undermined the state's conclusions. In Youngblood, this instruction made more sense because no
testing had yet been performed and there were no empirical indications of the defendant's guilt.
See Youngblood, 488 U.S. at 53. When inculpatory results are inconclusive without retesting,
requiring an inference for the defense would unfairly penalize the prosecution. If the evidence Is
expected to be consumed in the first round of testing, the defense should be notified in advance
and should have the right to observe the testing to ensure that proper procedures are followed;
the jury should also be instructed about the importance and desirability of a second round of
testing. A similar issue may soon be confronted with respect to the identification of criminals by
means of searches of databases of previously compiled DNA profiles. These databases contain the
results of DNA tests, but the compilers do not save the original samples from which these results
are derived. Courts should permit such results to be used in police investigations, but these
matches should not be admitted at trial because defense oversight of the lab procedures will not
be possible.
,9951
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1569
provide more conclusive results than the transparently exculpatory,

but merely suggestive evidence?
A second, more plausible interpretation of the apparent exculpatory
value standard would acknowledge two distinct ways to meet this
standard. First, evidence may, on its face, suggest that the defendant
is innocent. Second, it may be apparent that a certain type of evidence has high exculpatory value - that is, it is the type of evidence
which contains information that could clearly exonerate. 65 Traditional
forms of evidence, such as third-party confession notes, fit the first
criterion. Evidence requiring scientific analysis, such as blood or semen, meets the second. Results from testing such evidence may often
surpass by far the value of evidence that meets the first criterion.
Given technological advances in forensic science, the value of this type
of evidence should be deemed to be widely known and hence
"apparent."
While federal courts have thus far refused to impose a duty to preserve evidence, some state constitutional courts have suggested the
existence of such a duty. At least two courts have affirmed that, when
the defense makes a request for the preservation of evidence, the state
has a duty to comply and may face sanctions for non-compliance irrespective of bad faith.6 6 In Deberry v. State,67 an opinion followed by
several other states, 68 the Delaware Supreme Court held that the
state's Brady duty to disclose evidence tending to exonerate encompasses a derivative duty of preservation. 69 The court then proceeded
to analyze what remedies should apply when this duty is breached,
directing courts to balance the state's culpability and the degree of
65 The evidence in Trombetta would have failed this disjunctive test. Its exculpatory value
was not apparent in the first sense, and the anticipated value of further tests was quite low,
because two rounds of tests had already been performed.
66 See, e.g., People v. Koutsakis, 627 N.E.2d 388, 392-93 (Il. App. CL 1993), appeal denied,
638 N.E.2d 1121 (Il. 1994) (holding additionally that defendant need not prove in advance that
the material is exculpatory); State v. Bush, 595 S.W.2d 386, 389 (Mo. Ct App. x98o) (holding'that
an arrestee's request to save breath samples conferred a duty of preservation on the state). On
remand, the state court in Youngblood ruled that judges must instruct juries to draw an inference
that evidence would have been unfavorable to the state if the state cannot adequately explain the
state's loss of, destruction of, or failure to preserve material evidence that might have aided the
defendant. See State v. Youngblood, 844 P.2d 1152, 1156 (Ariz. 1993). Harsher consequences
accrue when the state has acted in bad faith or when the defendant suffers prejudice-in-fact. See
id. at 1156-57.
67 457 A.2d 744 (Del. 1983).
68 See, e.g., Gurley v. State, 639 So. 2d 557, 567 (Ala. Crim. App. 1993); State v. Ware, 881
P.2d 679, 684-86 (N.M. 1994). The Washington court has been divided as to whether to adhere
to a Deberry standard or to adopt a Youngblood standard. See State v. Ortiz, 831 P.2d io6o,
xo64-68 (Wash. 1992) (applying the Youngblood standard); State v. Hanna, 871 P.2d 135, 140
(Wash. i994) (acknowledging the split), cert. denied, 115 S. Ct. 299 (1994).
69 See Debery, 457 A.2d at 751-52. The opinion went on to suggest that, "as a matter of
prudence," administrative agencies that create rules for evidence preservation should direct that
"any material that could be favorable to the defendant" be preserved. Id. at 752.
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prejudice to the accused. 70 The inquiry should include consideration

of the degree of negligence or bad faith on the part of the state, the
importance of the lost evidence, and the sufficiency of other evidence
supporting the conviction.7 1 Applying this test to the case at bar, a
sexual assault case in which the defendant's clothing was lost, the
court considered the potential exculpatory value of the evidence to be
relevant, undergirding the court's judgment that for crimes of sexual
assault, the police should reasonably anticipate that it is crucial to
72
save clothing.
Although the Delaware court suggested that individual agencies
should create guidelines that presume in favor of preservation, neither
it nor any other state court has mandated any systemic reform. Further,, many states simply follow the lead of Trombetta and Youngblood. 73 The argument for recognizing stronger duties of preservation
under state constitutions is further supported by the developing jurisprudence in states that extend Brady's penumbra to include due process rights of access to experts and to physical evidence. 74 Notably,
the Brady standard requires prosecutors proactively to disclose only
that which has exculpatory value. Some state courts risk hinging their
decisions on a contradiction: they deem physical evidence exculpatory
in light of what may be gleaned from testing, for the purpose of making testing and experts available; yet, they impose no duty to preserve
physical evidence because such evidence has no apparent exculpatory
value. It is nonsensical to posit a constitutional concern to ensure that
the defense be able to test evidence in the prosecution's possession because it might be exculpatory, but not to evince a concern to ensure
that the prosecution preserve such evidence in the first place. If it is
important that the state be able to decide which evidence to keep and
which to discard, even if such evidence has evident exculpatory value,
then it should be equally important for the state to be able to decide
which evidence in its possession to share and which to withhold from
70 See id. at 752.
71 See id. at 752-53 (citing United States v. Loud Hawk, 628 F.2d 1139, 1152 (gth Cir. 1976)
(Kennedy, J., concurring)).

72 See id. at 753. Subsequent to Youngblood and Rombetta, the Delaware court declined to
adopt the Supreme Court's "good faith" standard, partly because the court found that defendants
could never make the requisite showing absent the unlikely occurrence of a police admission of
bad faith, and partly because the court regarded the balancing approach as one carefully tailored
to both the defendant's and the state's interests. See Lolly v. State, 611 A.2d 956, 959-60 (Del.
1992); Hammond v. State, 569 A.2d 81, 85-87 (Del. 1989) (reaffirming Deberry after Youngblood).
73 See, e.g., Wenzel v. State, 815 S.W.2d 938, 940-41 (Ark.
2991)
(citing Youngblood and
rombetta to support the holding that a failure to preserve enough evidence to permit defense
retesting did not deprive the defendant of a fair trial because the evidence's exculpatory value
was not apparent); see also State v. Steffes, 5oo N.W.2d 6o8, 614 (N.D. 1993) (holding that without bad faith, destruction of an audiotape that could establish innocence did not implicate state or
federal due process).
74 See supra pp. 1559-63.
DEVELOPMENTS -
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SCIENTIFIC EVIDENCE
1571
the defense. Brady and its progeny resolved the latter issue in favor of
the defense, and consistency requires that the former issue be resolved
on the same lines. A state constitutional rule that grants access to evidence only upon the happenstance of whether the state has endeavored to keep it would protect defendants' rights only haphazardly and
would create incentives for the state to destroy or avoid preserving
physical evidence.
B.
DNA Evidence in the Post-Conviction Context
Recent advances in technology have made it possible for some con-
victed people to vindicate themselves. DNA testing was not invented

until 1985; 7 5 more precise forms of testing, requiring significantly
smaller and less pure samples, have only much more recently been developed.7 6 Consequently, dramatic post-conviction uses of DNA evi-
dence have proliferated. Scores of convicted felons are petitioning

courts to allow tests to be performed on preserved samples, and more
exonerated by post-conviction DNA testing
than seventeen of those
77
have been released.
z. Access to Testing. - Petitions for access to physical samples
for post-conviction testing are relatively new. No clear statutory basis
for granting such requests exists in most states, 78 and requests are
often handled in a discretionary manner.7 9 Generally, when reported,8 0 these requests have met with a favorable response. Courts
7S See G. Larry Mays, Noreen Purcell & L. Thomas Winfree, Jr., Review Essay: DNA
(Deoxyribonucleic Acid) Evidence, CriminalLaw, and Felony Prosecutions:Issues and Prospects,
I6 JusT. Sys. J. III, 113 (1992).
76 See, e.g.; Harrison v. State, 644 N.E.2d 1243, 1250-5I (Ind. 1995).
77 See, e.g., Peter Baker, Wrongly Imprisoned Va. Man is Freed: Allen Grants Pardon in '84
Rape Case, WASH. PoST, Oct. 22 1994, at Bi (reporting on Edward Honaker, exonerated and
freed through executive clemency after serving ten years); James McCarty, DNA Test Lets Prisoner Go Home, PLAIN DEALER (Cleveland), Sept. 17, 1994, at iA (reporting on Brian Piszczek of
Ohio, freed because of DNA testing after serving four years in prison); Mary Neubauer, Imprisoned Ten Years, Man Freed by DNA Testing, PHIL. INQUIRER, Sept. 30, 1994, at A3i (reporting on
Frederick Daye); DNA Exclusions, supra note 41, at I (reporting on Kerry Kotler of New York,
exonerated and freed after serving over io years in prison); Sandra Skowron, After 9 Years in
Prison, Test Clears Man of Rape-Slaying, DETROIT FREE PRESS, June 29, 1994, at 5A (reporting
on Kirk Bloodsworth of Maryland, a death row inmate convicted in 1984 of rape and murder,
and exonerated and freed in 1993 as a result of DNA testing); Sharon Cohen, Dream Leads to a
Prison Term Until DNA Evidence Frees Him, LA. T"ImEs, Sept. I8, 1994, at Ax (reporting on
Steven Linscott of Illinois, whose DNA tests at retrial exonerated him from a conviction of murder); see also supra note 26.
78 See, e.g., People v. Callace, 573 N.Y.S.2d r37, 138 (Suffolk County Ct. r99I).
79 In granting such motions, judges have acknowledged that they lack significant direction
from precedent but have expressed concern that convictions based on mistaken identity may be
prevalent and that courts must be vigilant and flexible to remedy such errors. See, e.g., Dabbs v.
Vergari, 570 N.Y.S.2d 765 (Sup. Ct. I9go); Sewell v. State, 592 N.E.2d 705, 707-08 (Ind. Ct App.
1992).
80 Many such requests, given their unusual and extra-procedural nature, may not be reported.
See Telephone Interview with Jon Oberman, supra note 58.
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have fashioned two main theories for granting the requests. Some
courts treat such requests as pursuant to a possible motion for a new
trial based on newly discovered evidence or as pursuant to a possible
habeas petition. 8 ' Locating post-conviction testing rights in connection
with motions for new trials based on newly discovered evidence, however, may have limited application. Many jurisdictions only allow
such motions within a limited time period, ranging from twenty-one
days to two years.8 2 In many of the cases in which prisoners seek
post-conviction testing, the convictions occurred more than two years
earlier, and the forensic tests did not emerge within the statutory period. Under this theory of post-conviction testing rights, if the motion
for a new trial cannot be made, the court lacks the authority to order
the tests.
A second approach to post-conviction testing draws authority from
the Brady obligation to reveal exculpatory evidence to the defense.
Some state courts go beyond the strict reading of Brady that merely
requires prosecutors to hand over evidence of apparent exculpatory
value in their possession at or before trial. In Dabbs v. Vergari,83 for
instance, a New York court acknowledged that the petitioner had no
statutory right to post-conviction discovery, but held that he was still
84
entitled to be informed of material evidence of exculpatory value.
The court argued that if the defendant had been tried after the advent
of DNA testing, he would have been entitled to DNA testing and that
he should not be barred from post-conviction tests because they did
not exist at the time of trial. Cases subsequent to Dabbs have tended
to grant such motions when the conviction rested largely on dubious
identification evidence.8s
8' See, e.g., Callace, 573 N.Y.S.2d at 138-4o (ordering discovery of samples and testing pursuant to a statute that authorized the vacating of convictions on the basis of newly discovered
evidence); Jenkins v. Scully, No. CIV-9g-298E, 1992 WL 32342, at *1-*2 (W.D.N.Y. Feb. xi,
1992) (ordering the state to produce hair samples for DNA testing under Rule 6 of the Rules
Governing Habeas Corpus Cases); Cerisse Anderson, Convicted Rapist Wins Orderfor DNA Tests:
Judge Directs Use of 2 Separate Techniques, 211 N.Y. L.J. 1(994) (reporting the grant of a
motion of defendant Terry Leon Chalmers to have DNA tests performed on preserved samples).
Post-conviction discovery in preparation for a habeas petition is rare but is within the court's
discretion. See ERwIN CHEMERINSKY, FEDERAL JURISDICTION 15.3, at 792-93 (994); Harris v.
Nelson, 394 U.S. 286, 290, 298-300 (1969).
82 For a recent survey of jurisdictions, see Herrera v. Collins, 213 S. Ct. 853, 865-66 nn.8-il
(1993).
83 570 N.Y.S.2d 765 (Sup. Ct. 199o).

84 See id. at 768. But see Callace, 573 N.Y.S.2d at 139 (criticizing Dabbs for implying that
the state had a duty to preserve evidence indefinitely after prosecution).
8s See, e.g., Sewell v. State, 592 N.E.2d 705, 708 (Ind. Ct. App. 1992) (granting a request for
DNA testing to re-open the question of identity from a 1981 conviction, and citing Dabbs for
support); State v. Thomas, 586 A.2d 250, 253 (N.J. Super. Ct. App. Div. 2992) (holding that
"fundamental fairness" demands that testing be performed in a case in which the state's proof is
weak and the record supports reasonable doubt). A similar theme was sounded in Commonwealth v. Brison, 6x8 A.2d 420 (Pa. Super. Ct. 1992), which stressed that the evidence at trial
1995]
DEVELOPMENTS -
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Efforts of the more recently convicted have met with more opposition. Much of the Dabbs court's rationale related to the fact that
DNA tests were unavailable at trial. When such tests were available
at trial and the defense knew of samples that could have been tested,
motions for post-conviction discovery have not fared well. Courts
have held that the defense waived any right to testing by failing to
86
pursue this option at trial.
In 1994, after its courts had repeatedly faced the question, New
York became the first state to pass a statute that specifically addressed
post-conviction DNA testing. 7 Applying only to defendants convicted
before 1996, this law directs that a defendant's request for testing
shall be granted if evidence containing DNA materials was collected
in connection with the trial and if there is a reasonable probability
that the verdict would have been more favorable to the defendant if
88
DNA tests had been conducted at the time of the trial.
Other states should take note of New York's attempt to provide

needed legislative direction in this area. As the successes of defendants
like Charles Dabbs become known, attempts to obtain post-conviction
testing are likely to increase. In drafting such statutes, however, states
should consider some of the limitations of New York's approach.
rested only on the victim's dubious identification. The trend appears to be that courts will review
the trial transcript and will grant such motions if the evidence, although possibly strong enough
to convict, was of a kind that the court regards as less reliable, such as identification by a victim
or eyewitness. For these courts, the fact that testing was not available at the time of trial is not
alone sufficient to necessitate post-conviction testing.
86 See, e.g., People v. Brown, 618 N.Y.S.ad z88, I89-9o (Cayuga County Ct. 1994); People v.
Kellar, 605 N.Y.S.2d 486, 486 (App. Div. 1993) (finding that a request for DNA testing of a
sperm sample did not seek "newly discovered evidence" because the defendant was aware of the
possibility of testing before trial).
Two notable exceptions appear in State v. Thomas, 586 A.2d 250 (N.J. Super. Ct. App. Div.
iggi), and State v. Hammond, 6o4 A.2d 793 (Conn. 1992). In Thomas, the court noted that
testing procedures were available, though less advanced, at trial, but observed that defense counsel may have reasonably believed that his client would be acquitted without testing. The court
held that, while defendants are usually bound by the strategic choices of counsel, this rule should
not be strictly applied where it would "cut mortally into the substantive rights of the defendant."
Thomas, 586 A.2d at 252 (quoting State v. Harper, 319 A.2d 771, 775 (N.J. Super. Ct. App. Div.
1974)) (internal quotation marks omitted). In Hammond, the Connecticut Supreme Court remanded a motion for post-conviction testing for reconsideration. See Hammond, 6o4 A.2d at 808.
Hammond was an atypical case, in that the defendant had presented exculpatory DNA evidence
at trial but was nevertheless convicted because the state argued that these results must have been
the product of contamination. See id. at 805. After trial, the defendant sought further testing to
disprove the contamination theory. The prosecutor argued that the failure to test additional samples at trial was the defense's strategic choice. The court rejected the strategic choice argument
and reasoned that if the samples were testable at trial - as they must have been if failure to test
were a strategic choice - then the prosecution would have breached its duty to pursue relevant
evidence by not testing the samples. See id. at 807.
87 See N.Y. Caim. PRoc. LAw 440.30 (McKinney Supp. 1995).
88 See id. Notably, this test does not require a court to determine that it is likely that tests
would exonerate the defendant. Such tests might, for instance, indicate that other persons were
more centrally involved in the crime.
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First, such statutes should not be confined solely to DNA testing, but
should cover advances in forensic technology relevant to fixing identity
more generally. Second, New York's statute does not direct what action courts are to take if the testing does yield exonerative results.8 9
Statutes that place time limits on motions for newly discovered evidence should permit an exception when the evidence is highly reliable,
and is available because of technological advances that developed after
the statutory period. Third, New York's statute does not address what
action, if any, should be taken if samples from the crime scene have
not been preserved, nor does it direct that extant samples be preserved. Finally, New York's cut-off date for testing may be too rigid.
The cut-off date matches the date upon which state and local laboratories are expected to meet accreditation standards,90 but compliance
with such standards is not the only relevant consideration. Scientific
advances since the advent of DNA testing have made testing possible
on samples that were previously unsuitable for accurate testing, and
there may be further important advances in accuracy and in the samples that may be tested. 91 To accommodate likely advances in other
areas of forensic science and in DNA testing itself, cut-off dates should
be based upon whether the requested form of testing existed at the
time of conviction, whether significant strides in accuracy have been
made since then, and whether the technology is sufficiently advanced
at present to justify a high degree of confidence in the results.
2. Post-Conviction Preservation. As with pre-conviction access and testing, the trend toward acknowledging defense rights of
post-conviction access to evidence and testing begs the question about
the system of preservation. The decisions granting defendants rights
of access to physical samples are contingent upon the continued existence of the physical samples; if the samples are lost or destroyed, the
convictions must stand.9 2 Such an approach makes some sense for individualized adjudication in cases where preservation or loss is a foregone conclusion. As a set of prospective rules governing state duties of
preservation, however, this approach does not withstand scrutiny. Af89 This omission is understandable in New York, because its rules on motions to set aside
verdicts based on newly discovered evidence are fairly permissive, see N.Y. CrIM. PROC. LAW
330.30(3) (McKinney i993), but would be problematic in the context of a stricter system of rules.
90 See N.Y. Crm. PRoc. LAw 440.30 supplementary practice commentaries (McKinney
Supp. '995).
91 See McKenna, Cecil & Coukos, supra note 4, at 277 & n.i (1994); see also Scheck, supra
note 2, at 1962 ('[Tlesting technology and methodology is changing rapidly. The range of samples
that can be subjected to some form of DNA analysis is also quickly expanding."); Peter Baker,
DNA Test to Free Man Imprisoned in Virginia Rape, WAsH. PosT, Oct. 21, 1994, at Ai, A2o
(reporting use of new tests to exonerate Edward Honaker).
92 See, e.g., Commonwealth v. Brison, 618 A.2d 420, 425 n.13 (Pa. Super. Ct. 1992); see also
Finch, supra note 8, at 8o9-ii (identifying a New York case contemporaneous with Dabbs v.
Vergari, 570 N.Y.S.2d 765 (Sup. Ct. 199o), in which relief was denied because the evidence was
discarded).
19951
DEVELOPMENTS -
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1575
fording defendants rights of access without taking steps to ensure the

continued existence of the physical evidence holds out an illusory
promise. But it is a promise worth fulfilling. The FBI reports that
over thirty percent of the police's initial prime suspects are eliminated
through DNA testing. 93 This raises the worrisome possibility that
many people who were convicted in cases in which DNA testing was
94
unavailable, infeasible, or simply not sought may also be innocent.
Nevertheless, post-conviction preservation remains largely a matter
of discretionary parochial practice and has gone unscrutinized by the
courts and by legal commentators. 95 Prosecutors and state officials
under political pressure to reduce crime, as well as those with a firm
belief in finality, may feel induced to destroy evidence as soon as the
appeals process is initially exhausted. 96 The supposed incentives that
generally provide the state with a reason to preserve opaque evidence,
if they exist prior to conviction, 97 would virtually disappear after conviction. Cost and finality considerations may well push aside concerns
about the convicted innocent, absent constitutional and legislative directions to the contrary.
Such destruction would be shortsighted. Further advances in forensic science are foreseeable in other areas that may permit more precise reconstruction of facts to establish the identities of criminals. Not
only does destruction of physical evidence deprive innocent convicts of
a means of exoneration, but it also deprives the justice system of extremely useful information about the accuracy rate of convictions and
the sufficiency of protections for defendants. 98 Making post-conviction
tests impossible may detract from the system's perceived legitimacy,
sources cited supra note 41.
The DNA Task Force of the National Association of Criminal Defense Lawyers estimates
that there are hundreds of incarcerated people who could prove their innocence if they had access
93 See
94
to DNA testing. See DNA Exclusions, supra note 41, at 6-7; Neufeld, supra note 29, at 198-99.
But see Lempert, supra note 6, at 316 n.34 (discussing the significance of the FBI exclusion rate
and noting some scenarios under which exonerative DNA testing will not prove a defendant
innocent).
9S See Telephone Interview with Mark Stolorow, supra note 58, (reporting Ceilmark's policy
to return samples to local agencies and reporting that agencies' preservation practices differ depending on the locality). Other articles discussing preservation issues do not mention this
problem.
96 Cf Joe Jackson & June Arney, Sentenced to Die Without Fair Trials, VIRGINIAN-PILOT,
June 26, 1994, at Ai (reporting that prosecutors shared raw data but not exonerative translation
of the data to defense lawyers at trial of Earl Washington); Gina Kolata, DNA Tests Provide Key
to Cell Doorsfor Some Wrongly Convicted Inmates, N.Y. TIMES, Aug. 5, 1994, at A2o (reporting
a senior district attorney's remark that he would not automatically provide evidence from old
cases to lawyers who wanted to test DNA after conviction because the "cruel and harsh reality" is
that guilt is assumed after trial).
97 Cf. Arizona v. Youngblood, 488 U.S. 5i, 59 (1988) (Stevens, J., concurring) (arguing that
prior to trial, the police have at least as strong an interest as the suspect in preserving evidence).
98 Cf. DONALD E. WILKES, JR., FEDERAL AND STATE POSTCONVICTION REMEDIES AND RELIEF 1-13, at 17-Ig (1992) (discussing the dearth of information about the false conviction
rate).
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[Vol. 108:1481
especially as cases of post-conviction exoneration attract the public's

attention.
The preservation of all physical evidence for every conviction for
an indefinite period of time could, of course, place a significant burden
on polities. One way to delineate preservation-worthy evidence would
be to preserve evidence only in cases in which identity was an issue at
trial and the convicted person maintains her innocence. This solution
may fail to protect all of the actually innocent. Countering inculpating
DNA evidence is a daunting task, and defense attorneys may prefer to
pursue other strategies, such as defenses of justification or excuse.
Thus, some actually innocent defendants' attorneys may decline to
pursue an identity defense for reasons of expense or strategy, or because they do not believe their clients' claims of mistaken identity.
Another approach would preserve such evidence both when identity
was an issue at trial and when the physical evidence played a material
role in the conviction. This alternative is especially appropriate in
cases in which the statistical likelihood of error associated with the
evidence may be high, or in which there were technical difficulties in
the testing or retesting of the evidence. However, cases of false confession99 highlight the shortcomings of this second option, for physical
evidence may not be introduced if a confession seems compelling
enough. If the aim is to protect against continued incarceration of the
actually innocent, then even broader selection standards may have to
be used. A third approach would save all evidence that contains information about a criminal's identity, whether presently retrievable or
not, for some set period of time to permit testing if the proper technology develops; after that period has elapsed, evidence would only be
retained if innocence were maintained. 1
In the alternative, costs could be controlled by shifting the expense
to the defense in some cases, subject to an indigency exception. Defense counsel should be permitted to make a post-trial motion for preservation of material evidence. If the motion is found to be made for
good cause, the state would have a duty to preserve the evidence.
Good cause might be established if retesting could not be performed
because of sample size or tainting problems, which could be overcome
through future scientific developments. 01 ' Good cause also might be
established if experts raise a colorable, although not ultimately dispositive, doubt about the error rate of the testing procedure or of the statistical sampling of the population subgroups used to calibrate the
99 Ironically, the first use of DNA evidence to inculpate a defendant also exculpated a person
in England who falsely confessed to two murders. See Mays, Purcell & Winfree, supra note 75, at
113.
100 Cf. Youngblood, 488 U.S. at 7, (Blackmun, J., dissenting) (advocating a similar approach
for pre-trial preservation).
101 See sources cited supra note 9i.
i9951
DEVELOPMENTS -
SCIENTIFIC EVIDENCE
1577
results. If the motion were not supported by good cause, the defense
could be given the option of paying for storage.
3. Remedies Upon Exonerative Post-Conviction Testing. - Convicted defendants encounter substantial barriers to relief even when
evidence has been preserved and access to it has been granted. Those
who have been exonerated by such test results still face the difficulty
of obtaining their freedom post-conviction.
State and federal laws permit motions for a new trial on the
grounds of newly discovered evidence. 10 2 Some courts may not consider DNA test results to be "newly discovered," however, because the
physical samples themselves are not newly discovered; but generally,
courts have not split hairs, and have characterized the test results as
newly discovered evidence.' 0 3 More worrisome is the fact that such
statutes often impose temporal limitations on new trial motions. Deadlines vary across jurisdictions, but generally will prove fatal for defendants seeking release on the basis of DNA testing that was
unavailable at the time of trial. Virginia, for instance, permits such
motions only if evidence is discovered within twenty-one days of
4
trial. 1
Such limitation periods serve understandable purposes. States have
a strong interest in ensuring the finality of judgments. Further, witness testimony from those who come forward long after conviction
makes accurate readjudication of the facts difficult. It may seem that
the small probability of wrongful conviction does not outweigh the finality interest. The new evidence may suggest innocence but may not
be definitive; this possibility, combined with evidence deterioration
problems, may be thought to weaken the appeal to "innocence" enough
that it does not merit disturbing the original judgment. Time limitations may also put moral pressure on those who know of yet-undiscovered evidence to come forward speedily. In addition, such rules create
important incentives for defendants to investigate vigorously while evidence is fresh and to introduce it as soon as practicable, rather than to
hold it back in order to provoke a new trial.
These rationales, however, have limited application to newer forms
of scientific evidence. Exonerative DNA testing promises to provide
102 See, e.g., FED. R. CRIM. P. 33; see generally WILKES, supra note 98, 1-13, at 20-21
(discussing state and federal newly discovered evidence statutes).
103 See, e.g., People v. Callace, 573 N.Y.S.2d 137, 139 (Suffolk County Ct. iggi). Later emergent evidence of falsified forensic lab reports has also been construed as newly discovered evidence. See In re Investigation of W. Va. State Police Crime Lab., Serology Div., 438 S.E.2d 5oi,
503 (W. Va. 1993).
104 See VA. Sup. CT. IL 3A:i5(b) (I992); see also Herrera v. Collins, 113 S. Ct. 853, 865-66
nn.8-ii (1993) (compiling a list of statutes). n 1994, Virginia considered amending its 21-day rule
to permit prisoners to petition for rehearing at any point if newly discovered evidence establishes
a "significant probability" of actual innocence, but the proposed legislation was defeated. See
Jackson & Arney, supra note 96, at Ai.
1578
HARVARD LAW REVIEW
[Vol. 1083x481
fairly conclusive proof, not mere suggestion of innocence. Thus,

although other relevant evidence may be elusive or stale when such
scientific evidence is unearthed, this problem is of less concern given
the remarkably high degree of certainty provided by exculpatory DNA
tests. The familiar argument that the state may, in the face of a small
risk of innocence, refuse reconsideration after a fair trial for reasons of
efficiency and finality does not gain a strong foothold in this context.
Further, these kinds of test results were literally undiscoverable at the
time of trial and thus, the diligence of the defendants' investigation
cannot be questioned. If conclusive and reliable evidence of a person's
innocence exists - evidence which could not have been produced at
the time of trial - fundamental fairness demands that convicted innocents be afforded some avenue of relief. At a minimum, the law
dealing with newly discovered evidence clearly needs statutory reform.
The time limitations in place may have made sense given the kinds of
evidence typical at the time of their passage, but now seem arbitrary
and unjustifiable in the face of recent developments in forensic science.
Given that reliable evidence of a kind far superior to traditional evidence like eyewitness identification may become available after a
longer period, no persuasive rationale exists to enforce presumptive
time limitations that exclude such evidence. 03
If a motion for a new trial based on newly discovered evidence is
unavailable, defendants may petition the prosecutor to bring a motion
to vacate the sentence or a motion for a new trial. Appeals for clemency are another possibility.'0 6 Neither avenue is very reliable, given
that each requires the defendant to convince a partisan official who
may be politically and professionally invested in the conviction. 0 7
los An exception to the general time limits could be broadly framed to create a window for
highly reliable evidence; or an exception could be more narrowly framed to allow the admission
of highly reliable evidence subject to a balancing test that would weigh the amount of time that
has passed against the reliability of the newly available evidence.
For similar reasons, proposed temporal limitations on habeas petitions may be insufficiently
responsive to the nature of developing relevant forensic science research. See CHEMERINSKY,
supra note 81, z5.3, at 795.
106 Clemency has been granted in Virginia, a state with a 2x-day newly discovered evidence
rule, in three DNA cases. See Snyder v. City of Alexandria, 870 F. Supp. 672, 677 (E.D. Va.
1994) (noting Walter Snyder's pardon on the basis of DNA evidence); Peter Baker, Death-Row
Inmate Gets Clemency, WASH. PosT, Jan. 15, 1994, at Ai (reporting the commutation of Earl
Washington's death sentence to life imprisonment because of exonerative DNA evidence). Recently, Edward Honaker successfully appealed for clemency on the basis of exculpatory DNA
tests, after serving io years for a rape conviction. He, like some others freed using DNA testing,
may have been helped by the fact that there was physical evidence at trial demonstrating that he
could not have committed the crime. See Baker, supra note 77, at BI. Significantly, not all states
bestow clemency powers on their governors. See Herrera, 113 S. Ct. at 867.
107 In Frederick Daye's case, prosecutors refused to take action even after conclusive evidence
of his innocence was produced through DNA testing and retesting. Action was taken only after a
news program - investigating sidebar stories to complement coverage of the OJ. Simpson trial
heard of Daye's plight and began to ask embarrassing questions. It is unclear whether he
1995]
DEVELOPMENTS -
SCIENTIFIC EVIDENCE
1579
The shortcomings of the present mechanisms for relief might be

ameliorated by the availability of federal habeas corpus review. The
status of such review in these cases of post-conviction exoneration,
however, is unclear. The model posed by exonerating DNA evidence
may help to reduce some of the ambiguities in the current habeas jurisprudence because such evidence, unlike much of the evidence recently before the Court, can establish innocence more definitively.
The Supreme Court has grappled with, but has not clearly answered, the question whether newly discovered evidence of actual innocence may constitute a basis for habeas review.' 0 8 In Herrera v.
Collins, 0 9 the defendant filed a second habeas petition ten years after
his conviction for murder. He argued that his execution would be unconstitutional because newly discovered evidence, in the form of fresh
affidavits attesting that his brother was the killer, proved that he was
actually innocent. In denying his petition," 0 the Court assumed arguendo that it would be unconstitutional to execute a person if a "truly
persuasive demonstration of 'actual innocence'" were made,'" but declared that evidence of actual innocence alone is not a sufficient
ground for habeas review. Such evidence only creates a "gateway"
through which a petitioner's additional, independent constitutional
would have garnered release were it not for the media attention surrounding the Simpson trial
and DNA testing. See Neubauer, supra note 77, at A3z. The Daye example should give one
pause about resting institutional post-conviction safeguards in the hands of an advocate. Kerry
Kotler provides a similar example. The district attorney opposed Kotler's release, despite an exonerating DNA test, on the grounds that the testing method was relatively new, but changed his
position when the media reported that his office intended to use this same procedure to perform
inculpatory tests. See William B. Falk, DNA and TRuth: Genetic FingerprintCan Be Smudged by
Human Error, NEWSDAY, Dec. 7, 1992, at 7.
lo In previous cases, beginning with Townsend v. San, 372 U.S. 293, 317 (1963), the Court
ruled that newly discovered evidence that is merely relevant to a defendant's innocence is not a
sufficient ground for relief on federal habeas corpus review. Newly discovered evidence must also
bear upon the constitutionality of the conviction and detention. See id. at 317. Townsend, strictly
construed, only bore upon the power of newly discovered evidence relevant to innocence but it
did not deal with stronger evidence which plausibly purported to establish innocence on its own.
109 113 S. Ct. 853 (1993).
110 See id. at 870.
111 Id. at 869. The Court found that Herrera's claims did not meet this standard. See id. at
869-70. Justice White stated that a persuasive showing of actual innocence would render execution unconstitutional, so long as the newly discovered evidence and the extant record, construed in
the light most favorable to the state, would show that "no rational trier of fact could [find] proof
of guilt beyond a reasonable doubt." Id. at 875 (White, J., concurring in the judgment) (quoting
Jackson v. Virginia, 443 U.S. 307, 324 (1979)) (internal quotation marks omitted). Justices Blackmun, Stevens, and Souter expressed the view that it would be unconstitutional to execute an
actually innocent defendant and that a showing of probable actual innocence would suffice for
granting relief. See id. at 876, 882 (Blackmun, J., dissenting). Justices Scalia and Thomas joined
the majority but indicated separately that were the question directly presented, they would find
that the Constitution did not support such an assumption. They voiced doubt that the Court
would ever have to confront the question squarely, and then blithely asserted that were such a
strong case of innocence presented, a pardon would surely be granted. See id. at 875 (Scalia, J.,
concurring).
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(Vol. 108:1481
claim may pass on a second habeas petition."12 This Term, in Schiup

v. Delo,"13 the Court held that when it is probable that the defendant
is actually innocent and alleges to have suffered a constitutional violation at trial that led to the suppression of evidence of innocence, then
successive habeas review should be granted. 114 Despite passionate language to the effect that "[t]he quintessential miscarriage of justice is
the execution of a person who is entirely innocent,"" s the Court took
pains to distance Schlup-type "gateway" claims from Herrera-type
"bare innocence" claims. The Court called the latter claims "novel,"
and observed that Herrera-type claims "would have to fail unless the
federal habeas court is itself convinced that those new facts unques6
tionably establish . . .innocence.""
The Schiup opinion did not preclude the success of future Herreratype claims, but it raises the concern that the Court's language suggesting the unconstitutionality of executions of the actually innocent
who possess "truly persuasive" evidence that "unquestionably establish[es]" their innocence is just that - language."17 The Court did not
identify what sort of evidence could meet this standard but anticipated
that few cases would meet even the more liberal "probable innocence"
standard for Schlup-type "gateway" claims." 8 Further skepticism
about the success of future Herrera-type claims may be warranted by
the Court's inaction this Term in Jacobs v. Scott.119 The Court refused to grant certiorari to an application for a stay of execution of a
defendant who was convicted of committing a murder, even though
the prosecutor later asserted that the defendant did not directly commit the crime, and in fact convicted the defendant's sister for the same
20
act.'
Although such skepticism is tempting, the Court's seeming ambivalence could instead be explained by the nature of the evidence that it
has had before it. Both Schiup and Herrera are replete with concern
to ensure the finality of state trials, to avoid flooding federal courts
112 See Herrera, M13S. CL at 862.
113 Ix5 S. Ct 851 (1995).
114 See id. at 861-62.
115 Id. at 866.

116 Id. at 862.
117 Doubts of this nature are expressed in The Supreme Court, z992 Term - Leading Cases,
107 HARV. L. REV. 144, 283 (1993).
118 See Schiup, xs5 S. Ct. at 865-66
119
15 S. Ct 71, (1995).
120 The execution proceeded two days later. See Texas Inmate Is Executed Despite Not Being
Triggerman, WASH. POST, Jan. 4, ggs, at A16. Although the state conceded that Jacobs did not
actually kill the victim, Jacobs did kidnap and deliver the victim to his sister, whom he had
promised to help "'deal with' the victim." See Jacobs v. Scott, 31 F.3d 1319, 1321 (5th Cir. 1994).
It seems that the Fifth Circuit did not regard Jacobs as actually innocent but thought that Ja-
cobs's true actions were still sufficient to constitute capital murder as a coconspirator under Texas
law. See id. at 1324, 1326.
1995]
DEVELOPMENTS -
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1581
with "actual innocence" claims, and to circumvent the difficulties inherent in attempts to determine the truth through a new trial conducted years after the original conviction. 12 1 Such concerns may make
more sense when the evidence is of the sort unearthed in Herrera and
Jacobs.122 Newly emergent witnesses who could have come forward
earlier, but chose not to, present two difficulties for the Court. First,
the delay in coming forward casts doubt upon the witnesses' veracity
and lends to the proceedings a certain gaming flavor. 12 3 Second, because of its perceived relative unreliability, newly emergent witness
testimony does not provide a compelling reason to break the Court's
resolve to respect state determinations about the appropriate time limits placed on discovery of new evidence. New statements by witnesses
are not by themselves considered "truly persuasive" by the Court.
Further, evaluating them would require a court to weigh them against
previous witness statements and physical evidence in the record, and
would thus activate concerns about stale evidence and unavailable
witnesses.
Newly discovered exculpatory DNA evidence and other types of
emerging, highly reliable exonerative scientific evidence, however, do
not raise these difficulties, and cases involving such evidence may provide the opportunity to call the Court's bluff.124 Unlike the affidavits
in Herrera, exculpatory DNA evidence could not have been provided
at the time of trial because the tests did not yet exist. Concerns to
deter strategic behavior by defense lawyers and to encourage timely
investigation are not apposite here. Moreover, evidence of this sort
Schiup, 115 S. Ct. at 864; Herrera v. Collins, 113 S. CL 853, 86o-63, 869-70 (1993).
Jacobs did not involve new testimony by witnesses, but rather the prosecutor's subsequent
recantation of the state's version of the events and adoption of the defendant's story. A rehearing
would require - as it would have in Herrera - the re-examination of old testimony and of the
weight assigned to it. In contrast to Herreraand Jacobs, Schiup presented the Court with videotape evidence to support the new testimony. See Schiup, 115 S. Ct. at 855. This fact, as well as
the fact that Schiup involved allegations of an additional constitutional error leading to suppression of evidence, see id. at 86o-6i, may explain in part the decision in Schiup.
123 In Herrera,one affiant noted that the brother of the accused, who purportedly was the true
murderer, had stayed silent because he was waiting to see whether the accused would be acquitted. See Herrera, 113 S. Ct. at 858 n.2.
124 Contrary to Justice Scalia's expressed hope that the Court would not have to confront
directly the "embarrassing question" whether execution or incarceration of the demonstrably actually innocent is unconstitutional, Herrera, 113 S.Ct. at 875 (Scalia, J.,
concurring), it is likely that
the question will recur as more identity-revealing scientific techniques are developed and used.
Such a question arose this year in Milone v. Camp, 22 F.3d 693, 700-01 (7th Cir. x994), cert.
denied, ii5S. Ct. 720 (1995), a case in which advances in forensic odontology (the study of dental
marks) revealed that Milone, convicted for the murder of a young girl, was not the killer and that
the dental marks on the decedent's body matched those of a known serial murderer, Richard
Macek, who confessed to the crime. Milone's certiorari petition appealing his denial of habeas
was denied, see Milone v. Camp, -i5S. Ct. 720 (1995), but should have been granted, because
this case - or one like it, involving advanced forensic evidence - presents a ripe opportunity for
the Court to demonstrate that Herrera'shypothetical "truly persuasive demonstration" represents
more than a mere logical possibility.
121See
122
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has an entirely different level of probity. In these cases, the new evidence is usually not competing evidence of the same type and weight
as that presented at trial. The degree of certainty of innocence is so
high that it is unlikely to be outweighed by any evidence in the record.
Evidence that goes beyond the mere suggestion of innocence and demonstrably establishes innocence should form, by itself, a basis for
habeas review of convictions and imprisonment. Where the evidence
palpably shows actual innocence, the legitimacy of the state is unequivocally and transparently at stake. Continued incarceration cannot be charitably construed as reflecting the difficulties of weighing
conflicting new and old evidence or as reflecting a systemic concern to
place the burden of timely complaint on the defendant. Blinking at
the evidence of innocence may have been understandable in Herrera,
1 25
but it should be unthinkable here.
As forensic testing gains in reliability and accuracy, the prosecution
will increasingly enjoy a powerful tool that may come to supplant reliance on more traditional, less reliable forms of evidence. As the judicial system increasingly accepts and relies upon this sort of evidence, it
must install adequate protections to ensure the soundness of this evidence and the aptness of the uses to which it is put. Furthermore, the
legal system should adjust to allow defendants as well as the state to
take advantage of this technological progress both at trial and in postconviction appeals. The advances in evidentiary accuracy achieved by
the continuing progress in forensic science should be used to benefit
the wrongly accused and the wrongly convicted, and to enhance our
knowledge of the accuracy of the system of criminal justice.
12SFocusing on the type of newly discovered evidence presented may also help to make sense
of the puzzling asymmetry between the differential burdens for Schlup-type gateway claims and
Herrera-type "bare innocence" claims. On its face, the distinction drawn between the "bare" innocent, and those innocent against whom another constitutional violation has taken place, seems
arbitrary in light of the Court's emphasis on avoiding subjecting individuals to a "fundamental
miscarriage of justice." See Schiup, 115 S. Ct. at 863-64. There may be some moral difference
between the two innocent individuals' experiences, in that the former has suffered a somewhat
greater indignity than the latter, but the shared injury is sufficient to render continued incarceration in both cases "a fundamental miscarriage of justice" for the individual. The individual interests that constitutional rights aim to protect are no more fundamental than the individual interest
of ensuring that the lives and liberty of the actually innocent are not taken or abridged by the
state.
Institutional concerns and the disparity in the nature of the evidence may better explain the
differences in treatment between Schlup-type claims and Herrera-type claims than do differences
in the nature of the individuals' interests at stake. Herrera'soutcome may be traced to the lesser
quality of the new evidence presented in that case and the system's procedural interest in containing the number of claims based on questionable evidence of innocence alone. The more relaxed
(although still relatively strict and hardy) standards permitted in gateway-type cases may reflect
the Court's stronger concern that, even if the damage done to the defendants are comparable,
cases involving conviction of the actually innocent because of constitutional error show fault on
the part of the state and thus merit more judicial effort to afford redress.

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Citation: 108 Harv. L. Rev 1557 1994-1995

DNA EVIDENCE AND THE CRnhNAL DEFENSE

Technological advances in forensic science have introduced new

HeinOnline -- 108 Harv. L. Rev 1557 1994-1995

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A. Defense Testing and Authentication

HeinOnline -- 108 Harv. L. Rev 1559 1994-1995

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HeinOnline -- 108 Harv. L. Rev 1560 1994-1995

in principle to such access, but have complained that defense attorneys

Access to Laboratory Records and Samples. -

buttal of inculpatory DNA evidence may require access not only to an

secure testing procedures and scientific guidelines. Significantly, such

HeinOnline -- 108 Harv. L. Rev 1561 1994-1995

HARVARD LAW REVIEW

Courts have generally, although not uniformly, been amenable to

HeinOnline -- 108 Harv. L. Rev 1562 1994-1995

supervisor testified and the technician's lab notes were introduced at

App. CL), appeal denied, 584 N.E.2d 136 (fil. i99I).

HeinOnline -- 108 Harv. L. Rev 1563 1994-1995

HARVARD LAW REVIEW

argument that a failure to perform tests implicated his constitutional

HeinOnline -- 108 Harv. L. Rev 1564 1994-1995

rensic evidence. Federal and state approaches to the preservation of

HeinOnline -- 108 Harv. L. Rev 1565 1994-1995

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HeinOnline -- 108 Harv. L. Rev 1566 1994-1995

in a particular case contrary to sound common practice, but it does

preservation also passes constitutional scrutiny.60 In the late ig8os,

preciated. More recently, as techniques have vastly improved and as

mendous exculpatory and inculpatory power of forensic testing have

develop express guidelines for routine preservation and storage of

HeinOnline -- 108 Harv. L. Rev 1567 1994-1995

HARVARD LAW REVIEW

drunk driving case).

HeinOnline -- 108 Harv. L. Rev 1568 1994-1995

provide more conclusive results than the transparently exculpatory,

HeinOnline -- 108 Harv. L. Rev 1569 1994-1995

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prejudice to the accused. 70 The inquiry should include consideration

(Kennedy, J., concurring)).

(citing Youngblood and

HeinOnline -- 108 Harv. L. Rev 1570 1994-1995

DNA Evidence in the Post-Conviction Context

Recent advances in technology have made it possible for some con-

victed people to vindicate themselves. DNA testing was not invented

dence have proliferated. Scores of convicted felons are petitioning

HeinOnline -- 108 Harv. L. Rev 1571 1994-1995

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83 570 N.Y.S.2d 765 (Sup. Ct. 199o).

HeinOnline -- 108 Harv. L. Rev 1572 1994-1995

Other states should take note of New York's attempt to provide

HeinOnline -- 108 Harv. L. Rev 1573 1994-1995

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HeinOnline -- 108 Harv. L. Rev 1574 1994-1995

fording defendants rights of access without taking steps to ensure the

HeinOnline -- 108 Harv. L. Rev 1575 1994-1995

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especially as cases of post-conviction exoneration attract the public's

HeinOnline -- 108 Harv. L. Rev 1576 1994-1995

503 (W. Va. 1993).