Post-Conviction DNA Testing

Despite the widespread acceptance of DNA testing as a powerful and reliable form of forensic evidence that can conclusively reveal guilt or innocence, many prisoners do not have the legal means to secure testing on evidence in their case.

Barriers to the truth

Forty-nine states have some form of law permitting inmates access to DNA testing. The other three states have no law granting such access. Oklahoma has no law granting such access.

Even in many of the states that grant access to DNA testing, the laws are limited in scope and substance. Motions for testing are often denied, even when a DNA test would undoubtedly confirm guilt or prove innocence and an inmate offers to pay for testing.

Federal incentives for granting access to DNA testing

Federal law, the 2004 Justice For All Act, grants access to DNA testing for federal inmates claiming innocence and also allocates various justice-related funding to any state that grants DNA testing access to inmates claiming innocence. To meet the requirements of the federal law, states should pass or strengthen laws granting access to DNA testing.

Clear and comprehensive laws can ensure justice

Some states have passed statutes that include barriers to testing that are insurmountable for most prisoners. These include restrictions against inmates who pled guilty or whose lawyers failed to request DNA testing at trial. In many cases, the questionable evidence used to convict a defendant at trial – like eyewitness identification or snitch testimony – is used by judges as grounds to deny a DNA test. These barriers keep innocent people from securing DNA tests that could prove their innocence.

An effective post-conviction DNA access statute must:

  • Allow testing in cases where DNA testing can establish innocence – including cases where the inmate pled guilty
  • Not include a “sunset provision” or expiration date for post-conviction DNA access
  • Require states to preserve and account for biological evidence
  • Eliminate procedural bars to DNA testing (allow people to appeal orders denying DNA testing; explicitly exempt DNA-related motions from the restrictions that govern other post-conviction cases; mandate full, fair and prompt proceedings once a motion seeking testing is filed)
  • Avoid creating an unfunded mandate, and instead provide the money to back up the new statute
  • Provide flexibility in where and how DNA testing is conducted

For more on this issue, view the Innocence Project’s DNA access fact sheet or review model legislation on post-conviction DNA access.

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