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                            LexisNexisª Academic

               Copyright (c) 2001 William Mitchell Law Review
                        William Mitchell Law Review

                                    2001

                        27 Wm. Mitchell L. Rev. 1971

LENGTH: 14838 words

STUDENT ARTICLES: OTHER RISING LEGAL ISSUES: IN THE INTEREST OF JUSTICE:
GRANTING POST-CONVICTION DEOXYRIBONUCLEIC ACID (DNA) TESTING TO INMATES

Jennifer Boemer+


+ B.A., University of St. Thomas 1996; J.D., William Mitchell College of Law
expected January 2003.

SUMMARY:
  ... It will go on to explore post-conviction testing in Minnesota. ... In
Minnesota, for example, a defendant must bring a motion for new trial based
on newly discovered evidence within fifteen days of the verdict. ... In
1980, Minnesota established an additional factor incorporating the Frye
standard to determine the admissibility of scientific evidence. ... Because
Minnesota is not a death penalty state, the issue of post-conviction DNA
testing is not as prevalent in Minnesota as it is in such states as Illinois
and New York. ... Historically, the Minnesota Supreme Court has allowed
post-conviction relief in cases where there is newly discovered evidence
that was not available at trial. ... Additionally, the Minnesota Supreme
Court has granted new trials based on newly discovered evidence when the
petitioner makes a showing that the evidence could not have been discovered
through the exercise of due diligence prior to trial; that at the time of
trial the petitioner and his counsel had no knowledge of such evidence; the
evidence cannot be doubtful, cumulative, or impeaching and that it would
probably produce a result different from or more favorable than that which
actually occurred. ...

TEXT:
 [*1972]

I. Introduction

James Watson and Francis Crick "unraveled" the structure of DNA in 1953. n2
Since then, DNA typing (profiling, fingerprinting, testing) has overcome
controversy and criticism and revolutionized the criminal justice system. n3
In the process, DNA testing has freed at least sixty-three innocent men
originally convicted of murder or rape. n4

When DNA analysis was first introduced, prosecutors sought to use the
testing to confirm they had the right man and ultimately introduce the
results at trial to increase the chances of securing a guilty verdict. Since
first being used by prosecutors, the technology has significantly advanced,
and more sophisticated DNA testing is now available. As a result, there are
numerous inmates across the country that did not have this testing available
to them at the time of their convictions and are now attempting to gain
access to DNA profiling to prove their innocence. Allowing an inmate access
to post-conviction DNA testing has drawn criticism from some in the legal
community, support from some against the death penalty and raised numerous
legal issues. This comment will first explore the history of DNA
analysis/testing and its introduction into the courtroom. n5 Then it will
discuss the legal issues surrounding a defendant's request for
post-conviction DNA testing. n6 It will go on to explore post-conviction
testing in Minnesota. n7 Finally, this comment will discuss various steps
being taken to provide a defendant with the right to post-conviction DNA
testing. n8

 [*1973]

II. The History Of DNA Analysis And Its Introduction In The Courtroom

Early forms of biological identification techniques were often referred to
as unreliable. n9 For example, one method of testing used in the 1960's was
called "genetic marker analysis." n10 This form of analysis was effective
only on certain blood types, which did not make genetic marker analysis a
valuable form of testing in most circumstances. n11 Additionally, the
testing was unsuccessful in most cases due to deterioration of the sample.
n12 Furthermore, it was possible the genetic marker analysis would result in
a false conclusion. n13 Another early form of scientific analysis was the
electrophoretic method of testing that typed polymorphic proteins. n14
Again, this method resulted in inconsistent results. n15

DNA analysis of hair, saliva, blood, skin tissue and semen is the most
significant advance in the history of scientific evidence. n16
Deoxyribonucleic acid ("DNA") "codes genetic information for the
transmission of inherited traits." n17 The function of DNA is to store all
information necessary to create a human being along with all traits unique
to that human being. n18 The two most common types of DNA tests are
Restriction Fragment Length Polymorphism Analysis ("RFLP") and Polymerase
Chain Reaction Amplification  [*1974]  Analysis ("PCR"). n19 Additionally,
the newest form of DNA testing used is referred to as STR testing ("short
tandem repeat" polymorphisms). n20

Use of DNA testing to obtain a criminal conviction first occurred in Great
Britain in 1986 where Colin Pitchfork became the first person convicted on
DNA evidence. n21 The first conviction in the United States based on DNA
evidence occurred in 1988 in Andrews v. State. n22 However, it was not easy
for DNA to make its way into the courtroom. From the beginning, DNA analysis
and its use in the courtroom struggled to gain acceptance. Reluctance to
accept the testing and allow DNA in the courtroom resulted mainly from the
lack of reliability in the early form of tests. n23

The first significant obstacle DNA analysis had to overcome was the
admissibility of such scientific evidence in a criminal proceeding. n24
Beginning in 1923, the federal courts followed the standard  [*1975]  set in
Frye v. United States. n25 The Frye standard, which applies to all
scientific evidence, stated that in order for scientific evidence to be
admissible, the evidence had to be generally accepted by the scientific
community in which it was relevant. n26 Even though Frye was a federal
holding, the standard was adopted by most jurisdictions, including
Minnesota. n27 In 1993 the Supreme Court abandoned Frye and adopted the
Daubert standard. n28 Daubert moved to a standard that required the evidence
to be relevant and reliable. n29

Since the development of the Frye and Daubert standards, most jurisdictions
have addressed the issue of admissibility of DNA tests on one level or
another. n30 The West Virginia Supreme Court was the first state supreme
court to rule on the admissibility of DNA analysis. n31 Additionally, one of
the first courts to challenge the admissibility of DNA was the New York
Supreme Court in People v. Castro. n32 Since its inception, scientists have
made significant advances in DNA analysis, which have resulted in its
increased acceptance in the criminal justice system. n33 "The state of the
profiling  [*1976]  technology and the methods for estimating frequencies
and related statistics have progressed to the point where the admissibility
of properly collected and analyzed DNA data should not be in doubt." n34 To
date, DNA test results are admissible in all jurisdictions. n35

When DNA testing was introduced to the criminal justice scene, prosecutors
saw it as a powerful tool to assist in the conviction and incarceration of
the guilty. Over the last few years, DNA analysis has become a powerful tool
to the defense to exonerate those who have already been convicted. Using DNA
testing at the post-conviction stage is a controversial issue that raises
both procedural and substantive questions.

III. Post-Conviction Testing To The Forefront

Post-conviction DNA testing moved to the forefront and became a prominent
legal issue in 1996. It was in 1996 that the U.S. Department of Justice
published a report that detailed the stories of twenty-eight men who had
been exonerated through post-conviction DNA testing. n36 These twenty-eight
men served a total of  [*1977]  197 years in prison for crimes they did not
commit. n37 Three of the twenty-eight men were sentenced to die, including
Kirk Bloodsworth who became the first death row inmate in the United States
to be released based on post-conviction DNA testing. n38 Bloodsworth and the
other twenty-seven men owe their releases to the technological advancements
of DNA analysis and to the willingness of the courts to create a procedural
process by which the convict was allowed to pursue post-conviction testing
in the first place.

The findings in the U.S. Department of Justice report alarmed both the
scientific community and the criminal justice system. n39 Further, it caused
Attorney General Janet Reno to establish the National Commission on the
Future of DNA Evidence. n40 The early requests for post-conviction testing
left jurisdictions scrambling to develop a procedure for handling
post-conviction DNA testing requests. While some jurisdictions are in the
process of developing statutes to handle requests, Arizona, Illinois,
Minnesota, New York, Oklahoma and Washington currently have statutes in
place that specifically address post-conviction DNA testing. n41

 [*1978]

IV. The Legal Issues Raised When An Inmate Makes A Request For
Post-Conviction DNA Testing

A. How Does A Request Fit Into The Procedural Process?

Despite the numerous requests by inmates for post-conviction DNA testing,
courts are still struggling with how to classify such a request. One of the
first courts to wrestle with the issue was in New York in Dabbs v. Vergari.
n42 Since then, other jurisdictions have struggled with requests for
post-conviction DNA testing. n43 Whether the request is viewed as an
exculpatory evidence issue or a newly discovered evidence issue, certain
standards need to be adopted for use by trial courts in determining when, or
if, a defendant should be allowed to obtain the post-conviction testing. n44

Due to the lack of precedent courts have to follow, requests for
post-conviction DNA testing have generally been handled on a case-by-case
basis. n45 Procedurally, requests for post-conviction testing  [*1979]  have
been treated in one of three ways by the court. n46 First, the defendant can
bring a motion for a new trial based on newly discovered evidence. n47
Second, the defendant can bring a habeas petition. n48 A third possibility
is that a defendant can claim that he has a right to exculpatory evidence.
Each potential procedure for handling post-conviction DNA testing requests
presents its own set of legal issues and procedural roadblocks.

1. Newly Discovered Evidence

One procedural path some courts have followed is to classify post-conviction
DNA testing as "newly discovered evidence." n49 For example, in People v.
Callace, n50 the New York court reasoned post-conviction DNA testing should
be classified as newly discovered evidence because the type of DNA analysis
available at the post-conviction stage was not available at the time of the
trial, therefore making the evidence "new." n51 Similar reasoning followed
in Mebane v. State. n52 Furthermore, New York has taken the lead and has
written directly into their statute that post-conviction DNA test results
should be classified as newly discovered evidence. n53

Even in jurisdictions where courts have taken the first step and classified
post-conviction testing as "newly discovered evidence," the testing is not
easy to obtain. The application of "newly discovered evidence" to
post-conviction DNA testing is a very narrow one. The narrow application
makes it challenging for inmates to get the post-conviction DNA testing
based on the theory of newly discovered evidence. This is especially the
case in situations where some form of testing was available at trial and the
defense did not use it. For example, in Whitsel v. State n54 the court found
the post-conviction testing not to be newly discovered evidence because the
defendant  [*1980]  did not use the testing that was available at the time
of the trial. n55 Similarly, in People v. Kellar n56 the court was unwilling
to grant a new trial because it found the post-conviction request for
testing was not new evidence due to the fact that the defendant was fully
aware of the testing at trial. n57

According to the Iowa Supreme Court, newly discovered evidence must be
relevant and likely to change the outcome of the case. n58 Furthermore, the
court looks upon motions for new trials based on post-conviction DNA
evidence with disfavor and does not grant motions liberally. n59

A disadvantage to treating motions for post-conviction DNA testing as "newly
discovered" evidence is timing. In thirty-three states, inmates have six
months or less to file a motion based on new evidence. n60 In Minnesota, for
example, a defendant must bring a motion for new trial based on newly
discovered evidence within fifteen days of the verdict. n61 In most cases
involving a request for post-conviction DNA testing, years have passed since
their conviction, not months. Reasons for such short time periods in which
to file a motion include the strong presumption that the verdict is correct
due to the fact that the individual was convicted by a jury, the need for
finality, the recognition that memories fade, witnesses disappear, and
finally the need to conserve judicial resources by not opening the
floodgates to meritless and costly claims. n62 Therefore, in most
circumstances if the time limit has passed for filing a motion, it is beyond
the scope of the court's authority and the court will not have the authority
to order the testing. n63 One possible solution set forth in
"Recommendations for Handling Requests" is to waive the time limit to file a
motion based on new evidence in circumstances where the newly discovered
evidence is DNA. n64 Further, the commission encourages prosecutors and
judges to waive the time limit on a motion for a new trial based  [*1981]
on new evidence in certain circumstances. n65 The court should not waive the
time limit in all circumstances, but rather scrutinize each request
individually, especially if there have been significant advances in
technology since the conviction.

2. Does A Defendant Have A Constitutional Right To Demonstrate Actual
Innocence Through Habeas Corpus Review?

Essential to the discussion of habeas corpus petition and how it relates to
a motion for post-conviction DNA testing is the holding in Herrera v.
Collins. n66

The issue in Herrera was whether a freestanding claim of innocence could be
raised in a habeas corpus petition in view of either the Eighth Amendment
protection against cruel or unusual punishment or the Due Process Clause of
the Fourteenth Amendment. n67 Herrera claimed he could prove, through newly
discovered evidence that he was actually innocent. n68 The Herrera court
held that a claim of actual innocence absent a constitutional claim is not
cognizable under either the Eighth or Fourteenth Amendments. n69

The rule is that newly discovered evidence claims are not grounds for
federal habeas corpus relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding. n70 "The rule is
grounded in the principle that federal habeas courts sit to ensure that
individuals are not imprisoned in violation of the constitution - not to
correct errors of fact." n71

Herrera has provided guidance to courts faced with claims of actual
innocence grounded in post-conviction DNA testing. However, some courts have
departed from the holding in Herrera. In People v. Washington, n72 the court
addressed the issue of a constitutional  [*1982]  right implicated in a
freestanding claim of innocence based upon new evidence at the
post-conviction stage. n73 The court analyzed this issue under the federal
habeas corpus and the Illinois state constitution. The Illinois court
followed Herrera with respect to federal habeas corpus, but found that as a
matter of Illinois constitutional jurisprudence, newly discovered evidence
showing a defendant is actually innocent of the crime for which he was
convicted is cognizable as a matter of due process. n74

In Summerville v. Warden, n75 the Supreme Court of Connecticut held habeas
corpus permits granting of a new trial pursuant to a petitioner's claim of
actual innocence, notwithstanding a showing of a constitutional violation
that affected fairness of criminal trial. n76 When evidence is so strong
that innocence is highly likely and that evidence alone establishes
innocence that should form in itself, a basis for habeas review of
convictions and imprisonment. n77

In State v. El-Tabech, n78 the time had passed to bring a motion for a new
trial so the defendant tried to bring a habeas corpus petition, which was
denied. n79 El-Tabech alleged his constitutional right to due process would
be denied if he were unable to have DNA fingerprint testing conducted on the
evidence. n80 Contrary to the courts in Washington and Summerville, the
Supreme Court of Nebraska held the defendant could not bring a request under
the post-conviction statute for DNA testing that would allegedly show actual
innocence in absence of a showing of a constitutional violation. n81

 [*1983]  The case of Joseph O'Dell is yet another example of the
inconsistencies demonstrated throughout jurisdictions when it comes to
deciding whether a habeas petition should be granted solely on a claim of
innocence. n82 After various procedural steps, O'Dell petitioned for a writ
of habeas corpus to the Federal District Court of Virginia. n83 The court
granted his petition, which was based solely on a claim of actual innocence.
n84 However, the reasoning for the court accepting his claim of actual
innocence is misleading. It was not because the court believed such a claim
should be heard under a habeas corpus petition such as in Washington and
Summerville. Rather, it was a statement issued by three Supreme Court
justices that encouraged the court to hear his claims. n85 Then O'Dell
appealed to the Fourth Circuit Court of Appeals where the court stated a
claim of actual innocence was "not even colorable." n86 Furthermore, O'Dell
appealed to the Supreme Court and the court refused to hear his argument on
actual innocence. n87

In some respects, the system is working towards obtaining justice by
allowing post-conviction DNA testing in some circumstances. At the same time
the system is taking what little opportunity a convict may have for justice
away. Congress passed an anti-terrorism bill, which severely curtailed the
right to obtain post-conviction habeas corpus relief in the federal courts.
n88 Therefore,  [*1984]  the holding in Herrera and the anti-terrorism bill
work against a convict's chance of gaining the right to post-conviction DNA
testing through a habeas petition.

3. Is There A Constitutional Right Under Brady?

In Brady v. Maryland, n89 the Supreme Court held that a defendant had a
constitutional right to be informed of exculpatory evidence. n90 In Brady,
the court was referring to evidence the state had before or during trial,
not after trial. n91 However, a number of courts have attempted to make the
leap even though a request for post-conviction DNA testing is "potentially
exculpatory" rather than exculpatory and occurs after the trial rather than
prior to the trial. n92

In Sewell v. State, n93 the convict argued that principles of fundamental
fairness required the state to release evidence when the evidence's
exculpatory potential was discovered. n94 Relying on the analysis in Brady,
the court agreed that in situations where the state possesses exculpatory
evidence, the evidence is discoverable. n95 The court went on to say the
Brady theory should only be relevant in cases where conviction rests largely
on identification. n96 Similarly, the court in Commonwealth v. Brison n97
also cited to Brady and held the principles of justice required vacation of
conviction and remand to trial court for DNA tests when conviction rested
primarily on victim identification. n98

In Dabbs v. Vergari, n99 the court cited Brady, "Notwithstanding the absence
of a statutory right to post-conviction discovery, a defendant has a
constitutional right to be informed of exculpatory information known by the
state." n100 The New York courts are reaching  [*1985]  the same result
using different theories. n101 Later, in People v. Callace, n102 the court
rejected Brady, but allowed the testing under the theory of newly discovered
evidence. n103

Whether a defendant tries to obtain post-conviction testing through a motion
for a new trial based upon new evidence, a petition for habeas corpus, or
the Brady argument, procedural uncertainties and inconsistencies exist which
could ultimately bar a defendant's last chance to prove his innocence.

B. Under What Circumstances Should Post-Conviction DNA Testing Be Granted?

Once a court determines how to treat a request for post-conviction DNA
testing, the court's next step is to determine when a request should be
granted. Advocates for post-conviction DNA testing agree that testing should
not be used in all circumstances, rather only in extraordinary
circumstances. "It is only as powerful as it is relevant in a given
scenario...it is not a magic bullet in post-conviction cases." n104 For
example, if the evidence against a defendant is overwhelming and DNA
evidence did not play a large part in the overall conviction, then the
post-conviction testing should not be granted. However, if the prosecution
won the conviction on eyewitness identification alone, then post-conviction
testing should seriously be considered.

Moreover, several jurisdictions that have addressed the issue of
post-conviction DNA testing agree that there are extraordinary circumstances
where the testing should be granted. For example, in Pennsylvania, in
Commonwealth v. Reese, n105 the court relied on their  [*1986]  earlier
decision in Brison and stated that where the conviction rested on
identification evidence, and where advanced technology could establish
conclusive evidence of innocence, the motion for post-conviction testing
should be granted. n106 Similarly, in Dabbs v. Vergari, n107 the court
recognized that the testing Dabbs was requesting was not available at the
time of trial. The court granted Dabbs the testing. n108 Additionally, in
Mebane v. State, n109 the court said, "It seems a matter of fundamental
fairness that, under certain circumstances, a defendant be able to obtain
post-conviction DNA testing." n110 However, the Mebane court also stated
that the defendant was not entitled to post-conviction DNA testing of
evidence as a matter of right and it should not be granted unless the trial
court determines after a hearing that the result of the test would be
potentially exculpatory. n111

Instead of constructing a statute to address when and under what
circumstances post-conviction DNA testing should be granted, South Dakota
developed a set of guidelines in Jenner v. Dooley. n112 The South Dakota
court became one of the few jurisdictions that established guidelines for
when post-conviction DNA testing should be authorized. The guidelines set
forth three elements that needed to be satisfied. First, the evidence and
test results must meet the Daubert standard. n113 Second, the inmate must
demonstrate that a favorable result using the latest scientific procedures
would most likely produce an acquittal in a new trial. n114 Third, testing
should not be allowed if it imposes an unreasonable burden on the state.
n115 Recently, the court asserted these same guidelines in Davi v.  [*1987]
Class. n116 A Nebraska court in State v. El-Tabech also recognized the
guidelines set in Jenner. n117

As shown by the cases discussed above, courts are all over the board when it
comes to deciding if a motion for post-conviction DNA testing should be
granted. Moreover, it's not only the courts that can procedurally bar a
defendant's right to post-conviction DNA testing, but prosecutors as well.
Prosecutors are still skeptical of allowing post-conviction DNA tests.
Prosecutors are encouraged to view requests with "great suspicion" for
several reasons. First, prosecutors are concerned about a statute allowing
any convict the right to post-conviction DNA testing - this would open the
floodgates and encourage any convicted criminal to seek DNA testing,
innocent or not. n118 Secondly, the principal of finality is important in
our criminal justice system. n119 If courts are inconsistently deciding if
post-conviction DNA testing should be granted and prosecutors are still
skeptical about allowing the testing in the first place, the chances a
convict will be granted the testing are once again not promising.

However, suggestions have been made to the courts on ways to evaluate each
situation to determine whether post-conviction testing should be granted.
First, when examining each request the court should consider whether the
requested form of testing was available at the time of the convict's trial,
whether significant strides in accuracy have been made since the judgment,
and whether the technology is sufficiently advanced at the present time to
justify a high degree of confidence in the results. n120 The suggestions, if
followed, could help to minimize the inconsistencies from jurisdiction to
jurisdiction and help to develop a precedent that can be followed in the
future.

With biological evidence such as DNA testing, the courts have found
post-conviction testing most suitable and beneficial to all  [*1988]
parties involved when the following elements are present: when the identity
of a single perpetrator is at issue; the prosecution's evidence against the
defendant is weak and therefore there is an element of real doubt of guilt;
scientific evidence, if any, used to obtain the conviction has been
impugned; and the nature of biological evidence make testing results on the
issue of identity virtually dispositive. n121

When courts are faced with the question of whether testing should be
granted, the definitive question is, "do the tests carry any potential for
showing exculpatory results?" n122 If the results are not likely to have an
impact on the verdict then the request for testing should be denied. n123
However, if the answer is yes, the courts should strongly consider granting
the request.

C. What Happens When Post-Conviction Testing Proves To Be Exculpatory?

The procedural uncertainties do not end once an inmate is granted
post-conviction DNA testing. Courts are unclear and inconsistent when it
comes to addressing post-conviction exculpatory DNA test results. n124 For
example, Ronald Cotton spent nearly eleven years in prison before being
exonerated based on post-conviction DNA testing. n125 He was cleared of all
charges, released and received $ 5,000 from the state. n126 In State v.
Thomas, n127 Thomas was granted post-conviction DNA testing. n128 The court
clearly stated that the next procedural step would depend on the outcome. If
the results confirmed guilt, the conviction would stand. n129 However, if
the results were exculpatory, the court could either conduct a motion
 [*1989]  in limine hearing on admissibility or order a new trial. n130 In
some cases, once the exculpatory results are known, the defense moves for a
new trial, the prosecutors decline to re-try the case, and the defendant is
released. n131 In other cases, prosecutors decide to pursue a second trial.
n132

In the interest of justice, once test results prove exculpatory, the inmate
should be released from prison. It should be that simple, but it is not.
Contrary to what seems right, release from prison is not always simultaneous
with exculpatory, post-conviction DNA test results. n133 For example, Ronald
Jones post-conviction testing showed he was innocent of the crime, but he
remained in prison on death row for some time following the exculpatory test
results. n134 Until recently, Earl Washington Jr. was still in prison. n135
In 1994 his death sentence was commuted to life in prison when another DNA
test strongly suggested, but did not prove his innocence. n136 Governor
James Gilmore ordered new DNA tests in June of this year. n137 This time the
DNA tests confirmed Washington's innocence and Gilmore granted Washington a
full pardon. n138 Yet another example is Roy Wayne Criner who was denied a
new trial after DNA tests showed he was not the source of semen found in the
victim. n139 Despite  [*1990]  the exculpatory results, the judge in the
case reasoned that he could have worn a condom. n140 Two years later more
DNA tests were conducted, and again showed Criner was innocent. n141 In
August, after ten years in prison, Governor George W. Bush pardoned Roy
Wayne Criner. n142

New York is one of the few states, if not the only state, that has a statute
addressing what a court can do when post-conviction DNA test results prove
exculpatory. n143 The statute provides the court with the authority to
vacate a judgment when the DNA evidence "is of such a character as to create
a probability that had such evidence been received at trial the verdict
would have been more favorable to the defendant." n144 The criminal justice
system is beginning to understand the importance and the urgency in
establishing procedures for granting the testing. Additionally, adopting a
standard procedure for handling exculpatory results is just as important.

V. Post-Conviction Testing In Minnesota

A. Admissibility Of DNA Evidence

As early as 1952, the Minnesota Supreme Court acknowledged the federal
standard set in Frye v. United States. n145 In 1980, Minnesota established
an additional factor incorporating the Frye standard to determine the
admissibility of scientific evidence. n146 The result was a two-part test.
The first part of the test concentrated on acceptance within the relevant
scientific community (the Frye standard). n147 The second part was developed
from the case State v. Mack and required additional proof of reliability.
n148 Because of the two-part test, the standard is often referred to as the
Frye/Mack standard in Minnesota.

In 1993, the Supreme Court abandoned Frye and moved to the  [*1991]  Daubert
standard. n149 Minnesota did not follow. Until recently, the Minnesota
Supreme Court had not ruled on what standard to apply, and this created
inconsistencies in the courts' decisions. n150 However, in Goeb v.
Tharaldson, the Minnesota Supreme Court held that the Frye/Mack standard,
not the Daubert standard, applies in determining whether new scientific
evidence is admissible. n151 Essential to this discussion is not whether the
court applies the Frye or Daubert standard, but that, as with all other
jurisdictions, Minnesota courts have accepted the admittance of DNA evidence
in criminal procedures. n152

In 1989 the Minnesota Supreme Court applied the Frye standard specifically
to the introduction of DNA evidence in a criminal trial. n153 The holding in
State v. Schwartz n154 is additionally significant for two reasons. First,
the court held that the admissibility of DNA evidence, even if it meets the
Frye/Mack standard, depends upon the testing laboratory's compliance with
standards and controls. n155 Second, the court affirmed the Kim limitation
regarding statistical probability evidence. n156

 [*1992]

B. Requests For Post-Conviction DNA Testing

Requests for post-conviction relief are not a new phenomenon to Minnesota
courts. n157 However, requests for post-conviction relief based on DNA
testing are new. In fact, Wayne v. State is one of the few cases, if not the
only case, where a defendant has even requested post-conviction DNA testing.
n158 It follows that there are no cases in Minnesota where a convict has
been exonerated based on post-conviction DNA testing. Because Minnesota is
not a death penalty state, the issue of post-conviction DNA testing is not
as prevalent in Minnesota as it is in such states as Illinois and New York.
Even so, the Minnesota legislature has already adopted a statute to
specifically address post-conviction DNA testing. n159 This statute puts
Minnesota ahead of many states in addressing post-conviction DNA testing.

Minnesota has not been faced with the requests that New York and Illinois
have, so the courts have not had to address the procedural implications
associated with such a request. However, Wayne may shed light on how the
court would classify a request for post-conviction DNA testing. In Wayne,
the post-conviction court allowed testing and in their opinion stated, "DNA
testing only constitutes  [*1993]  new evidence from the standpoint that it
further confirms appellant's guilt." n160 Because the court refers to the
post-conviction test results as "new evidence" it may suggest that that is
how the court intends to classify post-conviction DNA testing requests if
presented with such a request in the future.

Historically, the Minnesota Supreme Court has allowed post-conviction relief
in cases where there is newly discovered evidence that was not available at
trial. n161 Since the court referred to the post-conviction DNA test results
as "newly discovered evidence" the groundwork is there for future requests
to be classified in the same manner.

Additionally, the Minnesota Supreme Court has granted new trials based on
newly discovered evidence when the petitioner makes a showing that the
evidence could not have been discovered through the exercise of due
diligence prior to trial; that at the time of trial the petitioner and his
counsel had no knowledge of such evidence; the evidence cannot be doubtful,
cumulative, or impeaching and that it would probably produce a result
different from or more favorable than that which actually occurred. n162
Evidence that is not cumulative or impeaching essentially means that the
newly discovered evidence must be material. n163 Material evidence can be
defined as evidence where there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different. n164 Reasonable probability is defined as probability
sufficient to undermine  [*1994]  confidence in the outcome. n165

It will be interesting to see how Minnesota courts address a request for
post-conviction DNA testing in the future, how the court will treat such a
request procedurally, and, further, what the court will do if the results
prove to be exculpatory.

VI. What Steps Are Being Taken To Prevent More Innocent People From Being
Wrongfully Convicted?

A. Post-Conviction DNA Testing: Recommendations For Handling Requests n166

After the release of the U.S. Department of Justice Report, the National
Commission on the Future of DNA Evidence was established. n167 This
commission was put together at the request of Attorney General Janet Reno to
"identify ways to maximize the value of DNA in our criminal justice system."
n168 The report outlines recommendations for prosecutors, defense counsel
and judges on how requests for post-conviction DNA testing should be
handled. n169 According to Peter Neufeld, "the biggest problem with the
report is that they are only recommendations...prosecutors don't have to
follow them if they don't want to." n170 However, it is a starting point for
those jurisdictions that do not have a statute mandating such a procedure.
The report also lays out each participant's role in the process. n171
Furthermore, the report discusses the legal and biological issues involved
in a request for post-conviction testing, some of which have been discussed
above. n172

 [*1995]

B. The Innocence Protection Act

Congress is also addressing the issue of post-conviction DNA testing,
specifically in situations involving the death penalty. Vermont Senator
Patrick Leahy introduced the Innocence Protection Act in Congress this year.
n173 The Innocence Protection Act would give death row inmates the right to
DNA tests. n174 Specifically, to tests that were not available at the time
they were convicted due to technology. n175 Additionally, the Act seeks to
apply DNA test results to capital cases prosecuted before 1994. n176 This
particular aspect of legislation is especially important given the finality
of sentencing an innocent person to death.

Since the United States reinstated the death penalty in 1976, n177 over
6,000 prisoners have been sentenced to death. n178 "DNA evidence is rising
in importance as a tool to exonerate innocent inmates facing execution."
n179 Moreover, DNA testing, along with growing concern that there are
innocent people on death row, has decreased the public's support of capital
punishment. n180 Those against the death penalty claim a reason most states
do not already have legislation in place to allow post-conviction testing is
because legislatures fear the time prisoners spend awaiting execution would
increase. n181

 [*1996]

C. Death Penalty Moratorium

Any time an innocent person is convicted and sentenced to prison, our
criminal justice system has failed. Any time an innocent person is sentenced
to die and executed, our criminal justice system has failed miserably. At
least the first situation allows an opportunity to correct the injustice.
DNA testing has not only increased awareness of its importance within the
criminal justice system, it has also raised questions about how these people
were wrongly convicted in the first place, especially those who received the
death penalty. Since the death penalty was reinstated, eighty-five inmates
have been proven innocent and released from death row, thirteen releases
occurred in Illinois alone. n182 DNA evidence played a key role in eight of
those releases. n183

In the beginning of 2000, Illinois governor, George Ryan, banned all
executions indefinitely. n184 Illinois was the first state to ban
executions, but not the last. n185 Since Governor Ryan declared a moratorium
in Illinois, thirty-eight states have declared moratoriums. n186 Early this
year, five Pennsylvania senators introduced Senate Bill 952, which would
halt executions in Pennsylvania for two years while a study is conducted.
n187

D. Enactment of Statutes Long Overdue

Several state legislatures are working to develop statutes to address
requests for post-conviction DNA testing. In addition to the moratorium in
Illinois, the Illinois legislature passed a bill that would require evidence
in sex cases to be preserved for twenty-five years and for seven years in
all other felonies. n188 Similarly, in June  [*1997]  of this year Senator
Rodney Ellis, of Texas, introduced a bill that would allow inmates to
petition the court for post-conviction DNA testing. n189

New York has been at the forefront of post-conviction DNA testing from the
beginning. The latest efforts from New York include the establishment of the
DNA Review Committee. n190 Governor Pataki commissioned the committee to
"investigate cases of inmates locked up for crimes they claim they didn't
commit." n191 The committee is expected to shape policies while maximizing
the use of DNA testing. n192

E. The Innocence Project

The Innocence Project is leading the crusade in the use of post-conviction
DNA testing to exonerate the innocent. n193 Barry Scheck and Peter Neufeld
founded the Innocence Project in 1992. n194 The Innocence Project is a
clinical program that provides pro bono legal assistance to inmates who are
challenging their convictions. n195 Specifically, the Innocence Project
focuses on using DNA evidence to assist inmates in proving their innocence.
n196

The Innocence Project is also involved in drafting legislation that would
make it easier for inmates to access post-conviction DNA testing. n197
Specific elements of the proposed legislation include allowing  [*1998]  DNA
testing in cases where the defendant will pay for the DNA test out of his
own pocket, doing away with the time limits on new trials when DNA evidence
has exculpatory potential, and preserving biological evidence for as long as
the inmate is in prison. n198 Preservation of biological evidence is
extremely important and a hard issue to sell. "Prosecutors and state
officials are 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." n199 The reality is that the
Innocence Project turns down about seventy percent of requests from inmates
due to the evidence being lost or destroyed. n200

The numbers presented by the Innocence Project are alarming because one
wrongly convicted person is one too many. However, the numbers also show
just how far the Innocence Project has come and what a difference they are
making. For example, in 1995 the Innocence Project claimed they had
exonerated eight prisoners based on DNA. n201 To date, the number of inmates
the Innocence Project has helped is substantially larger. Exactly how many
inmates the Innocence Project has helped exonerate to date varies, depending
on the source. The number of inmates varies anywhere from thirty-eight to
sixty-five inmates nationwide. n202 Most cases involved a situation where
the DNA technology available today was not available at the time of trial.
n203 Moreover, Neufeld and Scheck state that every year since 1989, DNA
results have excluded about twenty-five percent of the FBI's primary
suspects in sexual assault cases. n204 The  [*1999]  Innocence Project has
clearly demonstrated DNA testing is a powerful tool to exonerate those
already convicted.

F. Creation Of DNA Databanks

In 1994, Congress passed the DNA Identification Act. n205 This Act
authorizes the attorney general to grant money to states to develop DNA
databases. n206 In order for a state to obtain grant money, the state is
required to collect DNA from felony sexual offenders. n207 In addition to
the minimum requirement to collect DNA from felony sex offenders, states may
require additional criminals to submit to DNA testing to add to the
databank. n208 The crimes to be included and the specifics vary from state
to state. n209 The state of Minnesota has the broadest approach because it
does not state specifically what crimes should be included. n210 This leaves
the door wide open. It is possible that at some point in time Minnesota will
 [*2000]  require those convicted of any crime to submit DNA samples.
Although this is an extreme scenario, it demonstrates the potential for
state DNA databanks. As a result of the databases holding more and more DNA
samples, DNA databanks will grow to be a powerful a tool for law
enforcement.

In fact, examples already exist of how important the DNA databanks can be in
solving crimes and even in assisting to exonerate the innocent. Florida
claims to have made 200 "cold hits" and Virginia claims to have made
seventy-eight cold hits using their respective DNA databases. n211 Ronald
Cotton was freed after DNA tests proved he was not the right man. n212
Investigators found the right man when DNA from the crime scene matched that
of another convict's DNA in the state's DNA database. n213 Additionally,
Clyde Charles was released in December of 1999 after DNA tests showed he was
wrongly convicted. n214 As it turns out, his brother was guilty of the
crime. n215 Marlo Charles' DNA was in the Virginia databank from a crime he
committed in 1992. n216 Police were able to match his DNA stored in the
databank to the semen taken from the victim. n217

In Minnesota, database searches have yielded results. In State v. Bloom, the
BCA prepared a DNA profile from the crime scene and ran a search in the
sex-offender DNA database, which identified the defendant as a possible
suspect. n218 Bloom was convicted of first degree burglary, first degree
criminal sexual conduct and kidnapping. n219 In State v. Perez, searches of
the sex-offender DNA database isolated the defendant as a suspect. n220 As a
result, the defendant was convicted of murder and sentenced to life in
prison without parole. n221

 [*2001]  All of the state databases are in the process of being linked to a
national database called the National Combined DNA Identification System
("CODIS"). n222 Once this process is complete, the databases will be all the
more powerful to law enforcement.

VII. Conclusion

The criminal justice system has come a long way since allowing DNA evidence
in criminal proceedings. Scientific evidence has come a long way since the
genetic marker analysis of the 1960's. Together, a powerful tool has been
developed to incarcerate the guilty and exonerate the innocent. With the
number of innocent individuals who have been convicted in recent years,
there is no just reason why our system should not take advantage of the
scientific advances afforded to our society in order to ensure that the
right person is convicted.

FOOTNOTES:
n2. Denise A. Filocoma, Comment, Unraveling the DNA Controversy: People v.
Wesley, A Step in the Right Direction, 3 J.L. & Pol'y 537, 540 (1995).

n3. Id.

n4. Robert Tanner, Death Row Releases Raise Issues of Justice, Detroit News,
Feb. 9, 2000, at A9, available at http://www.detnews.com/2000/nation/0002
/09/02090161.htm. Illinois is responsible for fourteen post-conviction DNA
exonerations and New York is responsible for seven. Alicia Montgomery,
Angels of Justice (Mar. 17, 2000), at
http://www.salon.com/news/feature/2000/03/17/ scheck/index.html.

n5. Infra Part II.

n6. Infra Part IV.

n7. Infra Part V.

n8. Infra Part VI.

n9. Infra notes 10-15.

n10. Nat. Inst. of Justice, U.S. Dep't of Justice, Pub. No. 161258,
Convicted By Juries, Exonerated By Science: Case Studies in the Use of DNA
Evidence to Establish Innocence After Trial xv (1996)[hereinafter U.S. Dep't
of Justice, Pub. No. 161258]. The names of the tests used were the Lattes
test, the absorption-elution test and the absorption-inhibition test. Id.

n11. Id. Only ABO blood group substances and ABO isoantibodies could be
detected. Id. ABO typing, which is a form of electrophoresis testing, was
used to obtain the conviction of Joseph O'Dell. Lori Urs, Commonwealth v.
Joseph O'Dell: Truth and Justice or Confuse the Courts? The DNA Controversy,
25 New Eng. J. on Crim. & Civ. Confinement 311, 315 (1999). O'Dell was
executed despite the controversy surrounding the reliability or lack thereof
of the testing used. Id. at 315.

n12. U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at xv.

n13. Id.

n14. Id.

n15. Id.; Urs, supra note 11, at 312-13.

n16. U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at xv, xix, 4.

n17. David Williams, DNA Evidence Presents Opportunities and Challenges for
Criminal Lawyers, at http://www.cnn.com/LAW/
trials.and.cases/case.files/0006/ deathpenalty/dnaincourt.html (last visited
Jan. 25, 2001). See also Deborah F. Barfield, Comment, DNA
Fingerprinting-Justifying the Special Need for the Fourth Amendment's
Intrusion Into the Zone of Privacy, 6 Rich. J.L. & Tech. 27, 8 (2000).

n18. Barfield, supra note 17, at 8.

n19. Nat. Inst. of Justice, U.S. Dep't of Justice, Pub. No. 177626,
Post-conviction DNA Testing: Recommendations for Handling Requests
26-27(1999)[hereinafter U.S. Dep't of Justice, Pub. No. 177626]. RFLP
testing was developed by Alec Jeffreys of Leicester University in 1985. Id.
at 26. PCR testing was developed by Dr. Kary Mullis in 1984. Id. at 27. PCR
testing can generate reliable results from very small amounts of DNA. Id.
Both forms of testing are widely used and accepted in the courts. Id.

n20. Ronald Bailey, Unlocking the Cells, Reason Online (Jan. 2000), at
http://www. reason.com/0001/fe.rb.unlocking.html.

n21. Filocoma, supra note 2, at 567 n.18; U.S. Dep't of Justice, Pub. No.
177626, supra note 19, at 1. Dr. Alec J. Jeffreys worked with police on this
case. Id. But see U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at
4 (stating Robert Melias was the first person convicted primarily on DNA
evidence in 1987).

n22. 533 So.2d 841 (Fla. Dist. Ct. App. 1988). The prosecutor presented DNA
fingerprint evidence at trial and the trial court admitted the evidence. Id.
at 842. At the time of Andrews' appeal, there were no prior appellate court
decisions regarding the admissibility of DNA. Id. at 843. The admissibility
of DNA was upheld. Id. at 850.

n23. See supra notes 9-15 and accompanying text.

n24. See generally United States v. Jakobetz, 955 F.2d 786, 786 (2nd Cir.
1992) (conducting eight days of pretrial hearings on the admissibility of
DNA profiling, the court allowed the results to be presented to the jury);
United States v. Gaines, 979 F. Supp. 1429, 1430 (S.D. Fla. 1997) (requiring
government to make showing under Daubert as precondition to the
admissibility of PCR DNA analysis); United States v. Young, 754 F. Supp 739,
741 (D.S.D. 1990) (determining the admissibility of DNA evidence includes
considering whether the evidence is generally accepted in the scientific
community, whether testing procedures used were generally accepted as
reliable, whether the tests were performed properly, whether evidence is
more prejudicial than probative, and whether the statistics used are more
probative than prejudicial); State v. Schwartz, 447 N.W.2d 422, 422 (Minn.
1989) (holding DNA test results are admissible if performed in accordance
with appropriate laboratory standards and controls); People v. Castro, 545
N.Y.S.2d 985, 985 (N.Y. Sup. Ct. 1989)(holding the admissibility of DNA is
dependent upon findings that the expert performed scientifically accepted
tests and used generally accepted techniques).

n25. 293 F. 1013 (D.C. 1923).

n26. Id. at 1014. "While courts will go a long way in admitting expert
testimony deducted from a well-recognized scientific principle or discovery,
the thing from which the deduction is made must be sufficiently established
to have gained general acceptance in the particular field in which it
belongs." Id.

n27. See infra notes 145-48 and accompanying text.

n28. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (overruling
the Frye standard, the court held "general acceptance" is not necessary).

n29. Id. at 597. The Federal Rules of Evidence preclude Frye; thus, the
Rules provide the standard for admitting expert scientific testimony in a
federal trial. Id. The standard is that the evidence must be both relevant
and reliable. Id.

n30. U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at 6-7.
Forty-six states admit DNA evidence in criminal proceedings; in three states
(Nevada, Oklahoma and Tennessee) statutes require admission; and forty-three
states have ruled on the technology. Id.

n31. State v. Woodall, 385 S.E.2d 253, 259 (W. Va. 1989). The court held DNA
typing analysis was reliable, generally acceptable and, therefore,
admissible. Id. at 260.

n32. 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989). The Castro court used a
three-prong test to determine admissibility: the proposed DNA testing must
be generally accepted in the scientific community; the laboratory techniques
must be generally accepted in the scientific community; and the laboratory
must have performed the tests in accordance with the accepted scientific
techniques. Id. at 987. The DNA tests were found inadmissible for failure to
satisfy the third prong. Id. at 997-98.

n33. U.S. Dep't of Justice, Pub. No. 177626, supra note 19, at 1.

n34. U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at 6.

n35. U.S. Dep't of Justice, Pub. No. 177626, supra note 19, at 1.

n36. U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at 2. The
twenty-eight cases were tried in fourteen states and the District of
Columbia. Most cases took place in the 1980's, the earliest in 1979 and the
most recent in 1991. All twenty-eight cases involved some form of sexual
assault; six also included murder. All alleged assailants were men and all
victims were women. All but one was tried before a jury. Police had
knowledge of fifteen defendants prior to their arrests. Id. at 12-14. Since
the publication of the report, more than forty similar cases have been
identified. U.S. Dep't of Justice, Pub. No. 177626, supra note 19, at iii.
Clyde Charles was set free December 17, 1999, after nineteen years behind
bars after DNA testing showed he was innocent of the rape he was convicted
of. Richard Zitrin, DNA Clears Man of Rape, Points to Brother, at
http://www. apbnews.com/
newscenter/breakingnews/20.../dna0411<uscore>01.html (n.d.). Neil J. Miller
served ten years behind bars for a rape and robbery that he was ultimately
cleared of after DNA testing proved his innocence. Susan Wessling, Man
Cleared After Decade in Prison, at
http://www.apbnews.com/newscenter/bre.../dnarelease 0511<uscore>01.html
(n.d.). DNA testing was not available at the time of his trial. Id. Kevin
Lee Green was released after spending seventeen years in prison for
murdering his wife and unborn child when DNA confirmed another man had
committed the crime. U.S. Dep't of Justice, Pub. No. 177626, supra note 19,
at 32. A.B. Butler spent sixteen years in a Texas prison before being
released this year after DNA tests confirmed his innocence. Sharon Cohen &
Paul Shepard, DNA Tests Clear Scores of Felons, Minneapolis Star Trib., Oct.
8, 2000, at A29. After sixteen years in prison, DNA tests recently proved
Carlos Lavernia's innocence. Lisa Falkenberg, Judge: DNA Clears Rape
Convict, Minneapolis Star Trib., Oct. 11, 2000. Carlos is still in prison
awaiting a final decision on whether or not he will be released from court.
Id.

n37. U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at 12. The
longest time served was eleven years and the shortest was nine months. Id.

n38. Id. at 13-14. The three men are Kirk Bloodsworth, Rolando Cruz and
Alejandro Hernandez. Id. When Kirk Bloodsworth was found innocent, the State
of Maryland paid him $ 300,000 for wrongful imprisonment. Raju Chebium, Kirk
Bloodsworth, Twice Convicted of Rape and Murder, Exonerated by DNA Evidence,
at http://www. cnn.com/2000/LAW/06/20/bloodsworth.profile/.

n39. The fact that twenty-eight real people were innocent, yet were
convicted, could not be ignored. The report clearly demonstrated that our
criminal justice system is less than perfect. Post-conviction DNA testing is
what is used to correct the injustices that occurred, but what flaws in the
system caused the wrongful convictions to happen in the first place?
Mistaken eyewitness identification, coerced confessions, unreliable forensic
laboratory work, law enforcement conduct and ineffective representation of
counsel all contribute to wrongful convictions. U.S. Dep't of Justice, Pub.
No. 161258, supra note 10, at xxx.

n40. U.S. Dep't of Justice, Pub. No. 177626, supra note 19, at iii.

n41. Ariz. Rev. Stat. Ann. 13-4240 (West 2000); 725 Ill. Comp. Stat.
5/116-3(a)(West 1992); Minn. Stat. 590.01 (1996); N.Y. Crim. Proc. Law
440.30(1-a)(McKinney Supp. 1995); Okla. Stat. Ann. tit. 22 1371.1 (West
2000); Wash. Rev. Code Ann. 10.73.170 (West 2000). In 1994, New York was the
first state to implement a law dealing directly with post-conviction DNA
testing. Development in Law-Confronting the New Challenges of Scientific
Evidence, 108 Harv. L. Rev. 1557, 1573 (1995)[hereinafter Development in
Law](referring to N.Y. Crim. Proc. Law 440.30(1-a)(McKinney Supp. 1995)).
New York's statute applies only to inmates convicted prior to 1996. Id.
Additionally, the statute does not allow any convict access to testing. Id.
The statute states that testing shall be granted if evidence containing DNA
was collected in connection with the conviction and there must be a
reasonable chance that the verdict would have been more favorable to the
defendant if DNA tests had been conducted at the time of the trial. Id.
Tennessee is another state that has passed a law allowing for some
post-conviction testing. Richard A. Oppel Jr., States Move Towards Easing
Obstacles to DNA Testing, N.Y. Times, June 10, 2000, at A8. California
allows inmates to seek testing if the DNA testing technology was not
available at trial and requires officals to preserve biological evidence.
Id. Texas recently introduced legislation similar to California. Id. In
Washington the statute allows testing only to those on death row or serving
life sentences without parole. Id. Further, it is left to the prosecutors
discretion whether to allow the testing in the first place. Id.

n42. 570 N.Y.S.2d 765 (N.Y. 1990). The court held Dabbs was allowed to
conduct post-conviction DNA testing. Id. at 769. The court treated such a
request as a post-conviction motion for discovery. Id. at 767. The DNA tests
confirmed Dabbs was not the right person. Id. at 769. The Supreme Court of
Westchester County, New York, decided on first impression that a
technological advance of DNA analysis nine years after trial that rendered
exculpatory results justified vacating Dabb's conviction. People v. Dabbs,
587 N.Y.S.2d 90, 91 (N.Y. 1991).

n43. See generally State v. Thomas, 586 A.2d 250, 252-53 (Super. Ct. App.
Div. 1991)(granting defendant opportunity to conduct post-trial DNA testing
based on scientific and judicial developments of the last several years);
Sewell v. State, 592 N.E.2d 705, 707 (Ind. Ct. App. 1992)(considering the
implications of Brady in holding defendant entitled to discover rape kit to
conduct post-conviction testing because the testing was not available at
trial); Commonwealth v. Brison, 618 A.2d 420, 425 (Pa. Super. Ct.
1992)(vacating conviction to allow defendant to conduct DNA analysis);
People v. Callace, 573 N.Y.S.2d 137, 139 (N.Y. 1991)(classifying the testing
as newly discovered evidence).

n44. Mebane v. State, 902 P.2d 494, 497 (Kan. Ct. App. 1995).

n45. Development in Law, supra note 41, at 1572.

n46. Id.

n47. Id.

n48. Id.

n49. Mebane, 902 P.2d at 497; People v. Callace, 573 N.Y.S.2d 137, 139 (N.Y.
1991).

n50. 573 N.Y.S.2d 137(N.Y. 1991).

n51. Id. at 139.

n52. 902 P.2d at 497.

n53. N.Y. Crim. Proc. Law 440.10 Subd. 1(g), 440.30 Subd. 1-a (McKinney
1995).

n54. 525 N.W.2d 860 (Iowa 1994).

n55. Id. at 863.

n56. 605 N.Y.S.2d 486 (N.Y. 1993).

n57. Id.

n58. Whitsel, 525 N.W.2d at 863.

n59. Id.

n60. Oppel, supra note 41.

n61. Minn. R. Crim. P. 26.04 (West 2000).

n62. U.S. Dep't of Justice, Pub. No. 177626, supra note 19, at 9.

n63. Development in Law, supra note 41, at 1572.

n64. U.S. Dep't of Justice, Pub. No. 177626, supra note 19, at 54; Bailey,
supra note 20.

n65. U.S. Dep't of Justice, Pub. No. 177626, supra note 19, at 54; Bailey,
supra note 20.

n66. 506 U.S. 390 (1993). Herrera was convicted of murdering police officer
Carrisalez and sentenced to death in 1982. Id. at 393. Ten years after his
conviction and after one habeas petition, Herrera filed another habeas
petition claiming actual innocence. Id.

n67. Id.

n68. Id. at 396.

n69. Id. at 400.

n70. Id.

n71. Id.

n72. 665 N.E.2d 1330 (Ill. 1996). Washington, who was convicted of murder,
filed a post-conviction motion under the Illinois Post-Conviction Hearing
Act, claiming newly discovered evidence. Id. at 1332.

n73. Id. at 1332-37.

n74. Id. at 1337.

n75. 641 A.2d 1356 (Conn. 1994). Defendant was convicted of manslaughter in
the first degree. Id. at 1358 n.1. The appellate court confirmed conviction.
Id. at 1362. Summerville brought a habeas corpus petition claiming he was
deprived of his rights to due process under the Fourteenth Amendment, and he
alleged ineffectiveness of counsel. Id. The habeas court rejected his claims
and he appealed. Id. at 1364. The appellate court affirmed in part, reversed
in part, and remanded in part. Id. at 1356.

n76. Id. at 1369.

n77. Development in Law, supra note 41, at 1582.

n78. 610 N.W.2d 737 (Neb. 2000). El-Tabech was convicted of first-degree
murder and use of a weapon to commit a felony. Id. at 742. El-Tabech filed a
post-conviction motion alleging ineffectiveness of counsel. The trial court
dismissed the motion, and the appellate court upheld the dismissal. Id.

n79. Id. at 745. A motion for a new trial based on newly discovered evidence
must be brought within three years from the date of the verdict. Neb. Rev.
Stat. 29-2101 (1995).

n80. El-Tabech, 610 N.W.2d at 743.

n81. Id. at 749.

n82. Urs, supra note 11, at 316.

n83. Id. O'Dell had previously filed a petition for a writ of habeas corpus
in the Circuit Court of Virginia Beach which was dismissed. Id. O'Dell then
appealed to Virginia Supreme Court, which dismissed his appeal. O'Dell's
writ of certiorari to the U.S. Supreme Court was also denied. Id.

n84. Id. Although the Supreme Court denied O'Dell's petition for writ of
certiorari, Justices Blackmun, Stevens and O'Connor did issue a statement
expressing concern for O'Dell's matter. Id.

n85. Id.

n86. Id. at 317.

n87. Id.

n88. The bill provides:


Strict time limits for filing a writ (1 year in non-death cases, 3 months in
death cases) have been set for filing the writ; state court factual findings
are "presumed to be correct"; state court misinterpretations of the United
States Constitution are not a basis for relief unless those
misinterpretations are "unreasonable"; and all petitioners must show, prior
to obtaining a hearing, facts sufficient to establish by clear and
convincing evidence that but for the constitutional error, no reasonable
fact finder would have found the petitioner guilty.

U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at xxxi.

n89. 373 U.S. 83 (1963).

n90. Id. at 87.

n91. Id. at 84.

n92. U.S. Dep't of Justice, Pub. No. 171626, supra note 19, at 11.

n93. 592 N.E.2d 705 (Ind. App. 1992).

n94. Id. at 707. Sewell made two claims, the first of which was a claim
relying on the language in the Indiana Post-Conviction Rule 1 5 which
provides that pre-trial and discovery procedures are available in
post-conviction proceedings. Id.

n95. Id. at 708.

n96. Id.

n97. 618 A.2d 420 (Pa. Super. Ct. 1992).

n98. Id. at 449.

n99. 570 N.Y.S.2d 765 (N.Y. 1990).

n100. Id. at 767.

n101. See generally Vergari, 570 N.Y.S.2d at 765, 767, 769 (N.Y.
1998)(relying on Brady, court held evidence should be discoverable after
trial); People v. Callace, 573 N.Y.S.2d 137, 137 (N.Y. 1991)(holding
post-conviction DNA testing should be treated as newly discovered evidence).

n102. 573 N.Y.S.2d at 137 (N.Y. 1991).

n103. Id. at 139.

n104. Raju Chebium, DNA Provides New Hope for Wrongly Convicted Death Row
Inmates, at http://www.cnn.com/2000/LAW/06/16/death.penalty.dna.main/ (June
16, 2000) (quoting Chris Asplen, Executive Director of the National
Commission on the Future of DNA Evidence, a national group run by the
Department of Justice).

n105. 682 A.2d 831 (Pa. Super. Ct. 1996). Robinson was convicted of rape and
burglary in a bench trial. Id. at 833. Appellant appealed conviction and
conviction was upheld. Id. Following appeal, Robinson filed a PCRA petition
claiming ineffectiveness of counsel for failing to request DNA testing. Id.
His petition was denied and Robinson appealed to Superior Court. Id.

n106. Id. at 837.

n107. 570 N.Y.S.2d 765 (N.Y. 1990).

n108. Id. at 769.

n109. 902 P.2d 494 (Kan. Ct. App. 1995). A jury convicted Mebane of
burglary, rape, kidnapping and sodomy. Id. at 494-95. Mebane brought motion
to request post-conviction testing of rape kit-request was denied. Id. at
494. DNA testing was not available at time of trial. Id. at 495. Mebane is
the first case where the Kansas Appellate Court has addressed a defendant's
right to post-conviction DNA testing. Id. at 497.

n110. Id.

n111. Id. at 494.

n112. 590 N.W.2d 463, 472 (S.D. 1999).

n113. Id.

n114. Id.

n115. Id.

n116. 609 N.W.2d 107, 112-13 (S.D. 2000) (applying the guidelines set in
Jenner).

n117. Justice Gerrard stated:


[A] showing must be made that if the matter were presently tried, the
defendant would be entitled to the testing and the results would be
admissible ... and it must be shown that a favorable result using the latest
scientific procedures would most likely produce an acquittal in a new trial.


State v. El-Tabech, 610 N.W.2d at 750 (Neb. 2000).


n118. Oppel, supra note 41.

n119. Id.

n120. Development in Law, supra note 41, at 1574.

n121. Jenner v. Dooley, 590 N.W.2d 463, 472 (S.D. 1999).

n122. People v. Tookes, 639 N.Y.S.2d 913, 915 (N.Y. 1996).

n123. Id.

n124. See generally State v. Passino, 640 A.2d 547, 552 (Vt. 1994)(testing
of DNA concluded two bloodstains did not match victim and two were
inconclusive and as a result convict was granted new trial); Urs, supra note
11, at 322 (O'Dell did not receive a new trial despite testing that showed
bloodstains were not that of the victims and some were inconclusive).

n125. Barfield, supra note 17, at 11.

n126. Id. Ronald Cotton has since become friends with the woman who was so
sure he was her attacker. For more on this story see Helen O'Neill, Perfect
Witness, Minneapolis Star Trib., Sept. 24, 2000, at A29.

n127. 586 A.2d 250 (N.J. Super. Ct. App. Div. 1991).

n128. Id. at 254.

n129. Id.

n130. Id.

n131. U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at 35, 40, 42.

n132. Id. at 49. Prosecutors decided to pursue second trial against Gerald
Wayne Davis. Id.

n133. Infra notes 139-42 and accompanying text.

n134. Ky Henderson, How Many Innocent Inmates Are Executed?, 24 Hum. Rts. Q
10, 11 (1997). Since Henderson's report, Ronald Jones has been released from
prison. Sharon Cohen & Paul Shepard, DNA Test Clears Scores of Felons,
Minneapolis Star Trib., Oct. 8, 2000, at A29. Ronald Jones was the twelfth
inmate released from death row in the state of Illinois and the sixty-fourth
person in the United States to be exonerated by post-conviction DNA testing.
Judge Josephine Linker Hart & Guilford M. Dudley, Available Post-Trial
Relief After a State Criminal Conviction When Newly Discovered Evidence
Establishes "Actual Innocence," 22 U. Ark. Little Rock L. Rev. 629, 631
(2000).

n135. Frank Green, DNA Could Clear Rape, Murder Convict, at http://www.
apbnews.com/newscenter.../virginiatests 0418<uscore>01.html (n.d.). In
addition to serving time for a murder he did not commit, Earl Washington is
currently serving a thirty-year sentence for breaking and entering and the
beating of a seventy year old woman. Nick Goldberg, Wrongfully Convicted?,
at http://www. abcnews.go.com
/onair/Nig.../n1000814<uscore>Capital<uscore>Punishment&usc
ore;E<uscore>Washington<uscore>Update.htm (n.d.).

n136. Green, supra note 135.

n137. Goldberg, supra note 135.

n138. 38.Associated Press, Virginia Inmate Cleared by DNA Tests Gets Pardon
(October 2, 2000), at http://www.cnn.com/2000/LAW/10/02/dnatest.pardon.ap.

n139. Cohen & Shepard, supra note 134, at A29.

n140. Id.

n141. Id.

n142. Id.

n143. N.Y. Crim. Proc. L. 440.10(1)(g)(McKinney 1995).

n144. People v. Dabbs, 587 N.Y.S.2d 90, 92 (1991).

n145. 293 F. 1013 (D.C. 1923). See generally State v. Kolander, 52 N.W.2d
458, 465 (Minn. 1952)(determining whether or not lie detector test was
admissible, the court applied Frye).

n146. Steven Terry, Development, 22 Wm. Mitchell L. Rev. 237, 241 (1996).

n147. Id.

n148. 292 N.W.2d 764 (Minn. 1980); Terry, supra note 146, at 241.

n149. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

n150. Terry, supra note 146, at 241; Lorie Gildea, Sifting the Dross: Expert
Witness Testimony in Minnesota After the Daubert Trilogy, 26 Wm. Mitchell L.
Rev. 93, 100-01 (2000). See generally Wesley v. Alexander, No. C0-96-613,
1996 WL 722084 (Minn. Ct. App. Dec. 10, 1996)(avoiding the issue of Frye v.
Daubert altogether); Ross v. Schrantz, No. C8-94-1729, 1995 WL 254409, at 1
(Minn. Ct. App. May 2, 1995)(holding Frye standard still governed in
Minnesota).

n151. 615 N.W.2d 800, 814 (Minn. 2000). For further discussion on the
holding reached in Goeb and its effect on Minnesota see Peter Knapp, The
Other Shoe Drops: Minnesota Rejects Daubert, 27 Wm. Mitchell L. Rev. 997
(2000).

n152. U.S. Dep't of Justice, Pub. No. 177626, supra note 10, at 1. Minnesota
Statute section 634.25 provides that:


In a civil or criminal trial or hearing, the results of DNA analysis, as
defined in section 299C.155, are admissible in evidence without antecedent
expert testimony that DNA analysis provides a trustworthy and reliable
method of identifying characteristics in an individual's genetic material
upon a showing that the offered testimony meets the standards for
admissibility set forth in the Rules of Evidence.

Minn. Stat. 634.25 (1990).

n153. State v. Schwartz, 447 N.W.2d 422, 423 (Minn. 1989) (holding
admissibility of new scientific evidence is governed by Frye and DNA typing
has gained general acceptance). See also State v. Finney, 448 N.W.2d 54, 55
(Minn. 1989)(holding electrophoretic typing of dried blood stains is
admissible evidence under the Mack/Frye standard because the relevant
scientific community widely shares the view that results from such testing
are reliable and accurate).

n154. 447 N.W.2d 422, 423 (Minn. 1989).

n155. Id. at 428.

n156. Id. at 429. The Minnesota Supreme Court held in State v. Joon Kyu Kim
that "a limitation on the use of population frequency statistics is
necessary because of the danger that such evidence will have a "potentially
exaggerated impact on the trier of fact.'" 398 N.W.2d 544, 548 (Minn. 1987).

n157. E.g., State v. Rewitzer, 617 N.W.2d 407, 407 (Minn. 2000)(arguing in
post-conviction petition that fines and surcharges, imposed as part of the
sentence, were in violation of the excessive fines provisions of the federal
and state constitutions); King v. State, 562 N.W.2d 791, 794 (Minn.
1997)(filing petition for post-conviction relief did not entitle defendant
to evidentiary hearing where he failed to cite disputed facts); Miller v.
State, 531 N.W.2d 491, 492-3 (Minn. 1995)(filing of document titled "Ex
Parte Application for Financial Assistance of Testing DNA Evidence" was
treated as request for post-conviction relief); Santiago v. State, 617
N.W.2d 632, 634 (Minn. Ct. App. 2000)(bringing post-conviction motion
claiming trial court abused its discretion in various ways).

n158. Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999).

n159. Minn. Stat. 590.01 Subd. 1a (1996) provides that:


Motion or fingerprint or forensic testing not available at trial. (a) A
person convicted of a crime may make a motion for the performance of
fingerprint or forensic DNA testing to demonstrate the person's actual
innocence if: (1) the testing is to be performed on evidence secured in
relation to the trial which resulted in the conviction; and (2) the evidence
was not subject to the testing because either the technology for the testing
was not available at the time of the trial or the testing was not available
as evidence at the time of trial.

Minn. Stat. Ann. 590.01 subd. 1a (1996).

n160. Wayne, 601 N.W.2d at 441-42. The court was referring to the
post-conviction test results, which were consistent with the tests done
during trial and confirmed guilt. Id.

n161. See generally State v. Gisege, 582 N.W.2d 229, 230 (Minn. 1998)
(treating motion for post-conviction DNA testing as petition for
post-conviction relief under Minn. Stat. 590.01, subd. 1 (1996)); Miller v.
State, 531 N.W.2d 491, 493 (Minn. 1995) (denying request for post-conviction
relief because defendant's counsel had access to testing at trial); State v.
Caldwell, 322 N.W.2d 574, 588 (Minn. 1982) (stating new trial may be granted
based on newly discovered evidence if that evidence was not available at
trial).

n162. Sutherlin v. State, 574 N.W.2d 428, 434 (Minn. 1998); Hodgson v.
State, 540 N.W.2d 515, 517 (Minn. 1995); Dale v. State, 535 N.W.2d 619, 622
(Minn. 1995); State v. Rainer, 502 N.W.2d 784, 789 (Minn. 1993); Caldwell,
322 N.W.2d at 588. See also Whitsel v. State, 525 N.W.2d 860, 863 (Iowa
1994) (following a similar standard).

n163. Dale, 535 N.W.2d at 622.

n164. Dabbs v. Vergari, 570 N.Y.S.2d 765, 767 (N.Y. 1990).

n165. Id.

n166. U.S. Dep't of Justice, Pub. No. 177626, supra note 19.

n167. Id. at v. The Honorable Shirley S. Abrahamson, Chief Justice of the
Wisconsin State Supreme Court, chairs the commission. Id. The commission is
made up of prosecutors, defense attorneys, law enforcement, individuals from
the scientific community, individuals from the medical examiner community,
academic professionals and victims' rights organizations. Id.

n168. Id. at iii.

n169. Id.

n170. Bailey, supra note 20. Approximately one-half of the cases overturned
using DNA involve prosecutorial or police misconduct. Id.

n171. U.S. Dep't of Justice, Pub. No. 177626, supra note 19.

n172. U.S. Dep't of Justice, Pub. No. 177626, supra note 19, chapters 2, 3.

n173. Chebium, supra note 104. The Innocence Protection Act appears to be
dead in its present form. James D. Polley, Innocence Protection Act,
Prosecutor 16, 16 (Nov.-Dec. 2000). Senator Leahy is working to re-draft the
bill. Id.

n174. The Innocence Protection Act also includes provisions to increase
federal funds for state and local prosecutors involved in death penalty
cases, discretionary appellate and annual review processes and other
procedural items intended to ensure defendants are granted fair access to
the courts. Bipartisan Group of Senators Seek Changes in Death Penalty
Procedures, at http://www.cnn.com/ 2000/ ALLPOLITICS/stories/06
/07/death.penalty/index.html (June 7, 2000) [hereinafter Bipartisan Group of
Senators].

n175. Id.

n176. Id.

n177. Montgomery, supra note 4. Thirty-eight states have the death penalty;
the twelve states that do not are: Alaska, Hawaii, Iowa, Maine,
Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont,
West Virginia and Wisconsin. Raju Chebium, Reports of a Flawed Legal System
Push Death Penalty Debate Into High Gear, at
http://www.cnn.com/LAW/trials.and.cases/case.files/0006/death
penalty/overview.html. [hereinafter Chebium, Reports of a Flawed Legal
System].

n178. Montgomery, supra note 4.

n179. Chebium, supra note 104.

n180. Bipartisan Group of Senators, supra note 174.

n181. Chebium, supra note 104.

n182. Marcus Rediker, Public Forum to Examine Death Penalty and Proposed
Moratorium, 2 NO. 6 Law. J. 4, 4 (March 24, 2000). But see Chebium, supra
note 104 (stating that eighty-seven death row inmates have been exonerated);
Chebium, Reports of a Flawed Legal System, supra note 177 (stating
eighty-seven inmates have been released from death row).

n183. Chebium, supra note 104.

n184. Chebium, Reports of a Flawed Legal System, supra note 177.

n185. Id.

n186. Rediker, supra note 182, at 4.

n187. Id. The study would look at whether race plays a role in sentencing
one to death, whether death-row inmates have adequate representation and
whether the death penalty is applied fairly and uniformly state wide. Id.

n188. Amy Worden, Bill Would Preserve Murder Evidence Forever, at
http://www. apbnews.com/cjsystem/findingju.../evidence 0616<uscore>01.html
(June 16, 2000). Governor Ryan had until June 27, 2000, to sign the bill.
Id.

n189. Jim Yardley, Texas Lawmakers Seek Wide DNA Testing, N.Y. Times, June
9, 2000, at A18.

n190. Joe Mahoney, Government DNA Crime Panel To Review Convictions, at
http://www.nydailynews.com/2000-05-08/News<uscore>and&uscor
e;Views/Beyond<uscore>the<uscore>City/a-65933. asp (May 8, 2000).

n191. Id.

n192. Id.

n193. Chebium, supra note 104.

n194. Cardozo Law Innocence Project, at http://www.cardozo.yu.edu
/innocence<uscore>project/index.html. The Innocence Project is based at
Yeshiva University's Benjamin N. Cardozo School of Law in New York. Id.
Neufeld and Scheck are former public defenders from the South Bronx.
Montgomery, supra note 4. Additionally, Scheck and Neufeld co-chair the
National Association of Criminal and Defense Lawyers (NACDL) DNA Task Force.
Wessling, supra note 36. Barry Scheck is a former member of O.J. Simpson's
defense team. Montgomery, supra note 4.

n195. See supra note 194 and accompanying text.

n196. Bailey, supra note 20.

n197. Cardozo Law Innocence Project, supra note 194. Peter Neufeld and Barry
Scheck also propose that the government pay for the post-conviction testing.
Bailey, supra note 20.

n198. Bailey, supra note 20.

n199. Urs, supra note 11, at 316.

n200. ABA Network, at http://www.dna testing in/journal/ may00/03ldna.html

n201. Filocoma, supra note 2, at 567 n.20.

n202. Bailey, supra note 20. But see Barfield, supra note 17, at 35 (stating
DNA analysis has exonerated forty-eight prisoners, including twelve on death
row). Angels of Justice reports the Innocence Project has represented
thirty-eight individuals who have been exonerated based on DNA evidence.
Montgomery, supra note 4. An article by Joe Mahoney states the Innocence
Project has used DNA to free sixty-four inmates. Mahoney, supra note 190.
Yet another article addresses the number in general terms stating the
Innocence Project has helped free over three dozen wrongly convicted inmates
using DNA since 1992. Zitrin, supra note 36. The Innocence Project is
currently handling about 200 cases and has a backlog of 1,000 cases.
Chebium, supra note 104.

n203. Bailey, supra note 20.

n204. U.S. Dep't of Justice, Pub. No. 161258, supra note 10, at xxviii. For
more information, see Actual Innocence: Five Days to Execution, And Other
Dispatches From the Wrongly Convicted, by Barry Scheck, Peter Neufeld and
Jim Dwyer. Actual Innocence details the stories of ten men imprisoned after
being wrongfully convicted. See also Tanner, supra note 4.

n205. Barfield, supra note 17, at 7.

n206. Id.

n207. Id.

n208. Id. at 35.

n209. Id. For example, Arkansas requires repeat offenders to submit to
testing and Wisconsin requires samples from each person who is incarcerated,
on probation, paroled, or found not guilty by reason of mental disease. Id.
Louisiana, Mississippi and Kentucky require samples from those arrested for
sexual felony offenses, but not necessarily convicted. Id.

n210. Id. Minn. Stat. 299C.09 (1999) provides that:


The bureau shall install systems for identification of criminals, including
the fingerprint system, the modus operandi system, the conditional release
data system, and such others as the superintendent deems proper. The bureau
shall keep a complete record and index of all information received in
convenient form for consultation and comparison. The bureau shall obtain
from wherever procurable and file for record finger and thumb prints,
measurements, photographs, plates, outline pictures, descriptions, modus
operandi statements, conditional release information, or such other
information as the superintendent considers necessary, of persons who have
been or shall hereafter be convicted of a felony, gross misdemeanor, or an
attempt to commit a felony or gross misdemeanor, within the state, or who
are known to be habitual criminals. To the extent that the superintendent
may determine it to be necessary, the bureau shall obtain like information
concerning persons convicted of a crime under the laws of another state or
government, the central repository of this records system is the bureau of
criminal apprehension in St. Paul.

Minn. Stat. 299C.09 (1999).


n211. Bailey, supra note 20. A "cold hit" is when police have no leads and
they find a suspect by comparing the DNA profile found at the crime scene
with DNA profiles in the databases. Id.

n212. Barfield, supra note 17, at 11.

n213. Id.

n214. Zitrin, supra note 36.

n215. Id.

n216. Id.

n217. Id.

n218. State v. Bloom, 516 N.W.2d 159, 161 (Minn. 1994).

n219. State v. Bloom, No. C8-95-218, 1996 WL 33092, at 2 (Minn. Ct. App.
Jan. 30, 1996).

n220. State v. Perez, 516 N.W.2d 175, 176 (Minn. 1994).

n221. Id. at 176.

n222. Barfield, supra note 17, at 7.