Vol. 75, No. 5, May 2002

New Laws Reflect the Power and Potential of DNA

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Wisconsin's new DNA statutes update the definition of a DNA profile to reflect modern technology: require preservation of and access to biological evidence after conviction; and relax the statute of limitation in sexual assault cases in which a DNA profile of the perpetrator exists. These changes recognize the power of DNA to prove guilt or innocence.

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by Keith A. Findley

his past December, Larry Mayes, the 100th person exonerated by postconviction DNA testing in the United States, walked out of an Indiana prison, 21 years after he was locked up for a rape and robbery of a gas station attendant that he did not commit. Meanwhile, DNA continues to be used with increasing frequency as a tool to establish guilt, and notably is being used to clear up old sexual assault cases by matching crime scene DNA profiles with DNA profiles in state DNA databanks. The emergence of DNA as a force in the criminal justice system has been swift and dramatic, leaving courts, practitioners, and legislatures scrambling to keep up.

When the Wisconsin budget bill, 2001 Wis. Act 16, became law this past summer, Wisconsin law caught up for the time being with the rapidly evolving world of forensic DNA testing. Included in the budget bill were new forensic DNA provisions that: update the definition of a DNA profile to reflect modern technology; require the state to preserve biological evidence after conviction; provide access to that biological evidence for postconviction DNA testing that might prove innocence; and relax the statute of limitation in sexual assault cases in which the state has developed a DNA profile of the perpetrator.

These legislative initiatives reflect the power of DNA evidence to change attitudes and approaches to criminal cases. They recognize the power of DNA to prove guilt or innocence. And they reflect a shift in the balance between traditional notions of fairness and finality, and a new acknowledge-ment that exonerating the innocent and convicting only the truly guilty is a paramount concern, even if it comes at the expense of some loss of finality.

Standards for Postconviction DNA Testing Evolving DNA Profiling Technology

As dramatic as are some of these legislative initiatives, in the end they were remarkably noncontroversial. With active support of the State Bar of Wisconsin and its Criminal Law Section, the provisions enjoyed bipartisan support and passed both houses of the Legislature with virtually no opposition. Convicting the guilty and exonerating the innocent truly cuts across political and ideological lines.¹

This article briefly outlines some of the changes made by this new legislation. It first addresses general changes to DNA statutes, including the updated statutory definition of a DNA profile. It then outlines the new postconviction DNA preservation and testing provisions. Finally, it addresses the new statute of limitation in sexual assault cases in which the state has a DNA profile of the perpetrator.

General Provisions

In the early days of DNA testing, the dominant technique was Restriction Fragment Length Polymorphism (RFLP) analysis. RFLP testing produced excellent results under the right circumstances but had distinct limitations. Most significantly, it required relatively large quantities of nondegraded material to obtain results.

In recent years, a new technology has emerged as the dominant DNA profiling technique: Polymerase Chain Reaction (PCR) using Short Tandem Repeats (STRs). Because the new technique is both sensitive - it produces results from minute and even degraded samples - and discriminating - it produces highly distinctive identifying profiles, it has replaced RFLP in the forensic DNA profiling field.

Wisconsin's first DNA statutes, however, were written when RFLP ruled the field. The original provision, Wis. Stat. section 972.11(5), addressed admissibility but defined a DNA profile only as an analysis that uses the RFLP analysis; it did not recognize PCR/STR profiling or other techniques. 2001 Wis. Act 16 corrects this, repealing section 972.11 and replacing it with language that is more encompassing and should prove to be more enduring. The new law now defines a DNA profile as "an individual's patterned chemical structure of genetic information identified by analyzing biological material that contains the individual's deoxyribonucleic acid."² The law also addresses admissibility, providing that, before offering DNA profile evidence, a party must provide notice 45 days before trial and, upon request, provide the other party with the DNA expert's reports and findings.³

Postconviction Preservation

More dramatically, the new legislation recognizes the power of DNA to exonerate the wrongly convicted and the overwhelming importance of correcting such miscarriages of justice, regardless of when they are discovered. Although more than 100 DNA exonerations in the last decade is a remarkable number, especially given that in most crimes the perpetrator doesn't leave behind any biological evidence that can be tested, the number could be much higher if more care was taken to preserve biological evidence where it does exist. The experience of Innocence Projects⁴ nationally is that in cases in which postconviction DNA testing might prove guilt or innocence, nearly 75 percent of the time the evidence has been lost or destroyed. To achieve the greatest possible benefit from DNA, the biological evidence must be preserved.

Mandated Preservation. The new legislation makes preservation the law. Now codified in various places in the statutes, the new law requires that all government agencies that have actual or constructive custody of any biological material collected in the investigation of a crime must, with a few exceptions explained below, preserve the biological material until every person in custody as a result of a criminal conviction, juvenile adjudication, or insanity commitment has reached his or her discharge date. This preservation requirement applies to the state crime laboratories,⁵ the circuit courts,⁶ law enforcement agencies,⁷ and district attorneys' offices.⁸

The preservation mandate is expansive, both in its scope and its durational requirements. The rule applies to all crimes, felonies and misdemeanors alike. Evidence must be retained for as long as any person in any of the categories defined above remains in "custody." "Custody" under the law means actual imprisonment, probation, parole, extended supervision, actual or constructive custody pursuant to a juvenile dispositional order under chapter 938, any supervision of an insanity acquittee (including both institutional care and conditional release) under section 971.17, and supervision of a person committed as a sexually violent offender under chapter 980 (whether in pretrial detention, under commitment in an institution, or on supervised release).⁹ "Discharge date" is similarly defined to mean the release date from any such custodial status and, in the case of consecutive sentences, release from the last of the consecutive terms.¹⁰

While the general duty to preserve is clear, understanding just what the government agencies must preserve is a bit more complicated. The statute mandates preservation of biological evidence. Obviously, bloodstains, semen stains, and swabs from rape kits must be preserved. DNA also can be extracted, however, from less obvious sources, such as hairs, saliva on a licked stamp, cigarette butt, or beer bottle, sweat or epithelial skin cells from clothing worn by a suspect or victim, or even the oils in fingerprints. Under the law, all such possible repositories of DNA must be preserved.

Permissible Destruction of Evidence. This does not mean, however, that government agencies must preserve all physical evidence in all cases for years into the future. First, once everyone in "custody" under the statute is "discharged," the government is free to destroy the evidence. In the vast majority of minor offenses, "discharge" occurs relatively quickly.

Even before discharge, however, the government often will be able to destroy biological evidence. If the government wishes to destroy biological material before the discharge of all defendants, the statute provides that the government must notify all persons who remain in custody and their attorneys. The government then may destroy the evidence, but only if no one who receives the notice files, within 90 days, either a motion for DNA testing or a written request to preserve the evidence. If a person files a motion or requests preservation of the evidence, the evidence must be preserved until the requesting person is discharged or a court orders destruction or transfer of the biological material.¹¹

The law thus will require preservation of significant amounts of evidence, but most likely, in the run-of-the-mill misdemeanor and many felonies, the government will be able to destroy biological evidence upon providing such notice. After all, approximately 95 percent of criminal cases in Wisconsin are resolved by guilty or no contest pleas, and most of the defendants in those cases do not claim innocence. Most of those defendants would have little incentive to demand preservation of biological material. The burden of preservation therefore in practice likely will be limited largely to those cases in which the defendant, serving a significant sentence, continues to maintain innocence - just the cases in which postconviction DNA testing is most important.

For good reasons, the law does not permit destruction even if DNA testing was attempted before trial. DNA profiling technology has improved dramatically in the few years it has been used as a forensic tool, and there is every reason to believe it will continue to develop in rapid and presently unimaginable ways. Even more sensitive techniques, or tests that produce information presently unobtainable, such as descriptive information about a perpetrator, are possible.¹² Given the potential future uses of biological evidence based on new technologies, destroying samples subjected to old testing technologies would be unwise.

Remedies for Preservation Violations. The statute is silent in at least one important respect: It says nothing about a remedy if the state violates the preservation requirement. Some states, and a similar proposed federal statute, by contrast, provide criminal penalties for knowing destruction of biological evidence. The effectiveness of those penalties is yet to be seen. But Wisconsin law imposes no such penalties, or any other particular remedy.

Therefore, it will fall to the courts to fashion an appropriate remedy for violations. Under established constitutional doctrine, the government's pre-trial destruction of evidence requires reversal of a conviction if one of two tests is satisfied: 1) the material exculpatory value of the evidence was apparent at the time of its destruction, and the defendant could not obtain comparable evidence by other reasonably available means;¹³ or 2) the evidence might have aided the defendant if it had been tested, and the government acted in bad faith in destroying it.¹⁴ The new statute reflects a legislative judgment that biological evidence has potentially exculpatory value, and willful destruction of the evidence in violation of the statute might go a long way toward establishing bad faith. But whether and how those pre-trial doctrines might be applied to post-trial destruction is unclear.

Postconviction DNA Testing

Preserving biological evidence is only half the battle. Access to the evidence for DNA testing also is necessary.

Until recently, only two states provided a statutory right to post-conviction DNA testing. Not coincidentally, also until recently, those two states, New York and Illinois, had the most postconviction DNA exonerations, eight and 18, respectively. (With a spate of recent exonerations, Texas, with 12, has now passed New York).¹⁵ With passage of Wisconsin's new law, Wisconsin joins a rapidly growing number of states - 27 states and the District of Columbia - that now guarantee postconviction DNA testing when it might prove innocence (some, like Wisconsin, also require preservation of biological evidence). The federal government also is considering legislation, the Innocence Protection Act, that would mandate preservation and postconviction DNA testing in federal cases, provide incentives for states to adopt similar legislation, and improve the quality of representation in capital cases.¹⁶

Keith A. Findley, Yale 1985, is a clinical associate professor at the U.W. Law School. He cofounded and codirects the Remington Center's Innocence Project and codirects the center's Criminal Appeals Project. He previously served as an appellate and trial level assistant state public defender in Madison.

Wisconsin's New Right to DNA Testing and to Relief Based upon Such Testing. Wisconsin's law creates a new postconviction statute, Wis. Stat. section 974.07, that includes both a postconviction right to discovery - a right of access to biological evidence for DNA testing - and an explicit right to seek postconviction relief from a judgment at any time based on exculpatory DNA test results. Under the new statute, anyone "convicted of a crime, adjudicated delinquent, or found not guilty by reason of mental disease or defect" may move for postconviction DNA testing.¹⁷

Freeing the motion from time limitations marks a significant departure from previous statutory provisions. Under the old law, Wis. Stat. sections 805.16 and 938.46, a party in either a civil or criminal case could file a motion for a new trial based on newly discovered evidence but had to do so within one year after verdict. The new law expressly eliminates this time limitation on postconviction motions based on DNA testing.¹⁸

Significantly, the new law also modifies the statute of limitation for seeking a new trial based on newly discovered evidence in non-DNA criminal cases. The act creates a new section 805.16(5), which provides that the one-year time limit for bringing a motion for a new trial based on newly discovered evidence (not limited to DNA) does "not apply to a motion for a new trial based on newly discovered evidence that is brought under s. 974.06." In State v. Bembenek,¹⁹ the court of appeals had held that "due process may require granting a new trial under sec. 974.06, Stats., [the general postconviction provision,] on the basis of evidence discovered after the time for bringing postverdict motions has passed."²⁰ The new statute codifies Bembenek, both to the extent that it recognizes the propriety of seeking a new trial based on newly discovered evidence in a criminal case under section 974.06 and in its holding that motions for a new trial based on newly discovered evidence are not time bound.

This statute thus reflects the Legislature's judgment that, when new evidence can provide proof of innocence, it does not matter that the evidence comes to light belatedly. Regardless of when evidence of innocence is discovered, no one has an interest in continuing to imprison an innocent person.

Mandatory and Discretionary Testing. The newly created section 974.07 provides two circumstances under which a court might order postconviction DNA testing, one mandatory and the other discretionary. DNA testing is mandatory - in the language of the statute, the court "shall" order DNA testing - if all of the requirements set forth in the accompanying sidebar, entitled "Standards for Postconviction DNA Testing," are met.

Standards for Postconviction DNA Testing Evolving DNA Profiling Technology

Several features of the mandatory testing standard are noteworthy. First, the standard requires that the movant claim to be innocent.²¹ This provision is not remarkable for what it requires, but for what it does not require. Several states require, and indeed early drafts of the Wisconsin bill required, not just that the movant presently claims to be innocent but also a showing that identity was an issue at trial. Wisconsin eliminated that provision because it would have excluded defendants who confessed and pled guilty or no contest (indeed, some states expressly exclude defendants who pled guilty). Among the more than 100 people exonerated by DNA are a number who allegedly confessed, and several who pled guilty - people like Christopher Ochoa in Texas, whom the Wisconsin Innocence Project helped exonerate through DNA testing that proved beyond any dispute that he was completely innocent, despite a confession and guilty plea, which we now know were coerced. Wisconsin's statute wisely recognizes that if a person is innocent, he or she should not be in prison, even if he or she contributed to the conviction by succumbing to pressures to confess or plead guilty.

Second, the new statute employs language similar to that in the general standards for postconviction discovery established by the Wisconsin Supreme Court in State v. O'Brien²² and for establishing prejudice in a claim of ineffective assistance of counsel under Strickland v. Washington.²³ Testing is required when it is "reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent...."²⁴ That standard generally is understood not to be outcome determinative - the movant need not show that it is more likely than not that he or she would not have been prosecuted or convicted but only that it is "reasonably probable" that he or she would not.²⁵ Thus, under this standard, testing is required if exculpatory test results would "undermine confidence" in the conviction or adjudication.²⁶ Moreover, the movant need not prove that the tests will be favorable - the statute assumes favorable test results and requires testing if favorable results would create a reasonable probability of a different outcome.

Third, the statute contemplates mandatory DNA testing even if prior testing was conducted or if testing could have been done earlier but was not. All the statute requires is the reasonable likelihood that testing might produce probative results not obtained previously.²⁷ It does not matter if the testing could have been done before; all that matters is that it was not. Again, this provision reflects the legislature's judgment that procedural barriers erected on notions such as waiver and default should play no role when a test can be conducted that might determine guilt or innocence.

Fourth, the statute requires either that the chain of custody can be established or that testing of the evidence can itself establish the integrity of the evidence.²⁸ This provision recognizes that, while the integrity of the evidence is important, sometimes in postconviction DNA cases the evidence is misplaced or discovered in places where chain of custody may be dubious. It also recognizes that DNA evidence is unique in that often it can itself establish to a high degree of certainty its own authenticity and integrity. In sexual assault cases, for example, vaginal or rectal swabs unavoidably collect not only semen deposited by the perpetrator but also epithelial cells from the victim. During DNA testing, profiles of both the perpetrator and victim can be developed. If the victim's profile is present, then the testing itself confirms that the swabs came from the rape at issue. And if the defendant's profile is not present, the testing confirms the veracity of the sample, because the only way anyone could change the perpetrator's profile in the sample would be to remove every sperm cell from the sample and insert another man's sperm in its place - a virtual impossibility.

The statute also provides for discretionary DNA testing; that is, that the court "may" order DNA testing, if all of the same criteria are met, with one difference. Courts are not mandated to order testing, but have the discretion to do so, if, instead of showing that the defendant would not have been prosecuted or convicted, test results might make it "reasonably probable that the outcome of the proceedings" or the "terms" of the sentence, commitment, or dispositional order would have been more favorable to the movant.²⁹ The discretionary testing provision apparently was designed to give courts the authority to order DNA testing even in cases in which the testing might not be dispositive of guilt or innocence, but in which it might affect the nature or quality of the final judgment, such as the degree of the offense, the length of the sentence or dispositional order, or the conditions and terms of supervision.³⁰

Conditions and Costs for Testing. The statute also empowers courts to impose reasonable conditions on the testing to protect the integrity of the evidence and the testing process.³¹ The statute does not mandate any particular laboratory or procedures, but leaves it up to the parties and the circuit courts to work out the details and to determine whether to use a private laboratory or the state crime laboratories. The statute provides that the court may order that the state crime laboratories perform the testing only if both parties so stipulate.³²

The cost of DNA testing varies tremendously depending on the number of samples to be tested and the condition of the biological samples. Typically, costs for testing at a private lab run in the range of $3,000 to $5,000.³³ Because wealth should not determine who gets the benefit of DNA testing to establish innocence, the statute provides that the court may order the defendant to pay the testing costs only if the defendant is not indigent.³⁴

This point was clearer in the version of the law passed by the Legislature than it is in the version signed by the governor. The Legislature provided that if the movant is indigent, the court is to order the testing costs to be paid out of general program revenues (GPR). Because the budget was tight, the governor vetoed that part of the bill. The governor's intent, however, and the effect of the veto, was not to remove the right to DNA testing at state expense for the indigent. The governor's veto message explained that the intent of the veto was "to eliminate the GPR appropriation at the Department of Corrections ... because of the severe funding constraints facing the general fund."³⁵ The governor explained: "It is my intent to grant the courts authority to order the Department of Justice to cover such costs with program revenue from the crime laboratories and drug law enforcement assessments authorized under s. 165.755 and DNA surcharges authorized under s. 973.046. Accordingly, the Department of Justice may submit a request under s. 16.515 near the end of each fiscal year to use the appropriation under s. 20.455(2)(kd), drug law enforcement, crime laboratories and genetic evidence activities."³⁶

Discovery. When a person seeks postconviction DNA testing, the statute establishes mutual discovery obligations. Upon demand by the movant, the district attorney must disclose any prior DNA testing and make available to the movant or his or her attorney:

1) findings based on previous testing of biological materials; and 2) physical evidence containing biological material that is in the actual or constructive possession of a government agency.³⁷ Conversely, on demand by the district attorney, a movant must disclose any prior DNA testing and make available to the district attorney: 1) the results of any previous testing; and 2) a sample of the "movant's biological specimen."³⁸

The discovery provision again reflects the legislature's judgment that getting to the truth is the ultimate objective in these proceedings; both sides are required to disclose what they have and know about biological testing in the case. This provision is particularly significant because it contemplates release not just of lab results but also of biological material to a defendant even without a finding that the testing might create a reasonable probability of a different outcome; all a defendant need do is demand access to the material. Whether a defendant could then perform DNA testing on his or her own, without a court order under either the mandatory or discretionary testing procedures outlined above, is unclear. Nothing in the statute prohibits it as a general matter, although the statute does provide that the court may, upon motion, impose reasonable conditions on the availability of biological material to protect the integrity of the evidence.³⁹ Under the statute, however, these reciprocal discovery provisions apply only if "the information being disclosed or the material being made available is relevant to the movant's claim at issue in the motion" for postconviction DNA testing made under this statute.⁴⁰ So this discovery provision contemplates that such access to the biological material will occur only in conjunction with a request for postconviction DNA testing.⁴¹

Appointment of Counsel. The new law further provides for the appointment of counsel to assist individuals who are seeking post-conviction DNA testing. The law does not require appointment of counsel in every case, though. Instead, it provides that the court "shall" refer a non-represented movant who appears to be indigent to the state public defender for determination of indigency and appointment of counsel under Wis. Stat. ection 977.05(4)(j).⁴² Section 977.05(4)(j) does not require appointment of counsel, but gives the public defender discretion to appoint counsel in cases deemed sufficiently meritorious. The public defender therefore will have discretion to review motions for biological testing under section 974.07 and determine which ones are sufficiently meritorious to warrant appointment of counsel.

Relief from Judgment. The new law does not require the filing of a separate postconviction motion to obtain relief from the judgment once the DNA testing has been completed. Instead, it simply provides that, if the test results "support the movant's claim" of innocence, "the court shall schedule a hearing to determine the appropriate relief to be granted the movant."⁴³ The statute authorizes a court to set aside or vacate the conviction or adjudication; grant a new trial or fact-finding hearing; grant resentencing or a new commitment or dispositional hearing; or discharge the movant from custody.⁴⁴ This list is expressly not exhaustive.⁴⁵

The statute does not require that a movant prove entitlement to relief by any particular standard. Instead, the statute gives the court wide discretion to "enter any order that serves the interests of justice...."⁴⁶ The statute also makes clear that two of the traditional requirements for a new trial based on newly discovered evidence do not apply when postconviction DNA testing is available: The movant need not show that the evidence first came to his or her notice after trial, as otherwise required by Wis. Stat. section 805.15(3)(a), or that he or she could not have discovered the evidence previously through the exercise of diligence, as otherwise required by Wis. Stat. section 805.15(3)(b).⁴⁷ Again, this scheme reflects the legislature's judgment that barriers to relief should be minimized when actual innocence can be established.

While the statute thus exempts two of the traditional statutory requirements for a new trial based on newly discovered evidence, the statute does not similarly exempt two other requirements for a new trial under Wis. Stat. section 805.15(3)(c) and (d): that the new evidence "is material and not cumulative," and that the new evidence "would probably change the result." Presumably this means that a defendant must meet these standards to obtain a new trial based on DNA testing. But also presumably, because those requirements apply by their terms only to motions for a new trial, they would not apply to motions for other types of relief authorized under the DNA statute. If the defendant is not seeking a new trial, the court is empowered by section 974.07(10)(a) (2001-2002) to enter any appropriate remedial order when it concludes that, based upon DNA testing, such an order would "serve the interests of justice."

Chapter 980 Cases. Postconviction relief based upon exculpatory DNA evidence is available not only from criminal convictions, juvenile adjudications, and commitments based on a finding of not guilty by reason of mental disease or defect, but also from chapter 980 commitments of sexually violent offenders. Only in chapter 980 cases, however, the person subject to the commitment must file a separate motion for relief from the commitment;⁴⁸ simply filing a motion for postconviction DNA testing will not alone suffice. The reason for this is that, in chapter 980 cases alone, the DNA testing must be ordered and conducted not in the commitment case itself but in the predecessor criminal (or juvenile) case that produced the conviction underlying the commitment. Thus, once exculpatory DNA tests undermine the underlying criminal conviction or adjudication, a person committed under chapter 980 can then bring a motion for relief from the judgment in the chapter 980 court.

Standards for Postconviction DNA Testing Evolving DNA Profiling Technology

Amendments to chapter 980 now provide that any time that a judgment relating to a commitment is reversed or vacated, the subject of the commitment may bring a motion for relief in the committing court. The statute provides that "if the vacated conviction was the sole basis for the ch. 980 allegations andthere are no other convictions supporting the commitment, the court shall vacate the commitment."⁴⁹ If, however, there are other judgments relating to a sexually violent offense committed by the person that remain unreversed, the court has discretion to decide "whether to grant the person a new trial."⁵⁰

Post-testing Disposition of the Evidence. If postconviction DNA testing produces an exoneration and the person is subsequently released, the new legislation does not require continued preservation of the evidence, so long as no one else involved in the case remains in custody. If the test results do not produce an exoneration, destruction of the evidence often will be appropriate at that point. The statute provides that, if the results of the testing do not support the movant's claims, "the court shall determine the disposition of the evidence."⁵¹ At times, continued preservation will remain important, particularly if the test results are inconclusive.

DNA technology is rapidly evolving; biological material that under today's technology produces inconclusive results may in the near future yield probative results. In any case in which that might be possible, continued preservation would be the appropriate disposition. Even when the results are clearly incriminating, the statute provides that, if any one else remains in custody to whom the evidence also is relevant, the court shall order that the evidence be preserved until all persons entitled to preservation are released from custody.⁵²

Statute of Limitation in Sexual Assault Cases

The Legislature was concerned not just about exonerating the innocent but also about convicting the guilty. In this regard, the Legislature modified existing law to enable the state to obtain convictions in sexual assault cases, when DNA is available, long after the statute of limitation has expired. The Legislature's rationale was that, just as DNA evidence can provide conclusive proof of innocence, it can provide overwhelming evidence of guilt, particularly in sexual assault cases. The legislature reasoned that, when there is such overwhelming evidence, the traditional rationales for a statute of limitation - such as the interest in repose and protection against the difficulties in mounting a defense long after an event - are less compelling and are overcome by the interest in punishing the guilty (the argument is that when DNA evidence is dispositive, there presumably isn't much of a defense to worry about). Again, DNA tilts the traditional balance between interests in finality and truth in the criminal justice system in favor of the latter.

The new law provides that the statute of limitation for commencing a prosecution does not apply when the state recovers biological evidence in a sexual assault case and from it develops a DNA profile of the perpetrator before the statute of limitation runs, if the state does not know whom the DNA profile fits. In those cases, the state may bank the profile until a later date. The prosecution may commence years after the offense, so long as it is within 12 months after a DNA match is found that "results in a probable identification of the person."⁵³

The new law simplifies a procedure that prosecutors, particularly in Milwaukee County, already were employing. In Milwaukee County, before the new law, prosecutors had filed 15 John Doe warrants based solely on DNA profiles of suspected perpetrators - profiles obtained from biological evidence collected from sexual assault victims - whose identity was unknown to the state. Prosecutors filed those warrants just before the statute of limitation ran to avoid defaulting under the statute of limitation. In two of those cases, prosecutors subsequently obtained hits when those profiles were compared to entries in the state's DNA databank. In both those cases, the prosecutions then proceeded against the persons who fit those profiles.

The new law simplifies this procedure, because no longer must the prosecutor file a John Doe warrant before the statute of limitation expires. Instead, the prosecutor need only develop a DNA profile before expiration of the statute of limitation.

A word of caution: This law does not authorize the state to ignore the statute of limitation in every sexual assault case in which the state obtains DNA evidence. The probative value of DNA varies from case to case. In some cases, the DNA will be virtually dispositive - such as when a single perpetrator rapes a woman who has not had intercourse with anyone else, and the semen from that rape is available. In others it will be nearly inconsequential - such as when DNA is extracted from a hair found in a public bathroom that was the site of a rape and the hair could have been deposited by anyone. The statute obviously was designed to apply to cases more similar to the former scenario than to the latter. To ensure this linkage between the DNA and the perpetrator, the statute requires that, at a minimum, the DNA itself must result in a "probable identification" of the perpetrator.⁵⁴

Conclusion

Improving technologies and expanding uses of DNA profiling will continue to provide opportunities and challenges for the criminal justice system. But DNA should never be misunderstood as a panacea that solves all of the system's problems, if for no other reason than because in the vast majority of cases there is no biological evidence that can yield a DNA profile.

Much can and must be done to learn about the errors in the criminal justice system - both the wrongful convictions and the failures to identify and convict the guilty - and the DNA cases, by identifying wrongful convictions, can help us learn about those errors. In the meantime, in important ways Wisconsin's new DNA statutes at least make an effort to use DNA to achieve a greater measure of justice than we have known before.

Endnotes

¹ See "Prosecutors and defense attorneys agree on Wisconsin DNA evidence legislation," 74 Wis. Law. 13 (April 2001).

² Wis. Stat. §§ 939.74(2d)(a), 971.23(9)(a) (2001-2002).

³ Wis. Stat. § 971.23(9) (2001-2002).

⁴ See Dianne Molvig, Freeing the Innocent, 74 Wis. Law. 14 (April 2001).

⁵ Wis. Stat. § 165.81(3) (2001-2002).

⁶ Wis. Stat. § 757.54(2)(b) (2001-2002).

⁷ Wis. Stat. § 968.025 (2001-2002).

⁸ Wis. Stat. § 978.08 (2001-2002).

⁹ Wis. Stat. § 968.025(1)(a) (2001-2002).

¹⁰ Wis. Stat § 968.205(1)(b) (2001-2002).

¹¹ See Wis. Stat. §§ 165.81(3)(b), (c), (e), 757.54(2)(b), (c), (d), (e), 968.025(2), (3), (5), 978.08(2), (3), (4), (5) (2001-2002).

¹² See National Commission on the Future of DNA Evidence, U.S. Department of Justice, National Institute of Justice, The Future of Forensic DNA Testing (Nov. 2000).

¹³ See California v. Trombetta, 467 U.S. 479, 488-89 (1984).

¹⁴ See Arizona v. Youngblood, 488 U.S. 51, 56-58 (1988); State v. Greenwold, 189 Wis. 2d 59, 67, 525 N.W.2d 294 (Ct. App. 1994).

¹⁵ See http://www.innocenceproject.org/case/display-cases.php?sort=year-exoneration&start=1& end=20.

¹⁶ Innocence Protection Act of 2001, H.R. 912/S. 486. The federal legislation also includes provisions to ensure adequate provision of counsel in capital cases.

¹⁷ Wis. Stat. § 974.07(2) (2001-2002).

¹⁸ See Wis. Stat. §§ 805.15(3), 938.46, 974.07(10)(b) (2001-2002).

¹⁹ 140 Wis. 2d 249, 409 N.W.2d 432 (Ct. App. 1987).

²⁰ Bembenek, 140 Wis. 2d at 252.

²¹ Wis. Stat. § 974.07(7)(b) (2001-2002).

²² 223 Wis. 2d 303, 588 N.W.2d 8 (1999).

²³ 466 U.S. 688 (1984).

²⁴ Wis. Stat. § 974.07(7)(b) (2001-2002).

²⁵ See State v. Moffett, 147 Wis. 2d 343, 354, 433 N.W.2d 572 (1989).

²⁶ Strickland, 466 U.S. at 670.

²⁷ Wis. Stat. § 974.07(2)(c) (2001-2002).

²⁸ Wis. Stat. § 974.07(7)(a)4. (2001-2002).

²⁹ Wis. Stat. § 974.07(7)(c) (2001-2002).

³⁰ This provision was modeled after the Uniform Statute adopted by the National Commission on the Future of DNA Evidence. That model bill more clearly provides that testing is discretionary if the "testing of the evidence will produce DNA results which would have rendered the petitioner's verdict or sentence more favorable if the results had been available at the proceeding leading to the judgment of conviction." Uniform Statute, § B.1.

³¹ Wis. Stat. § 974.07(8) (2001-2002).

³² Id.

³³ This price estimate is based on standard PCR/STR testing. Other types of testing, such as mitochondrial DNA testing, which can be used to obtain results from nonnuclear cells, such as those in the shaft of a hair, are quite a bit more expensive.

³⁴ Wis. Stat. § 974.07(12)(a) (2001-2002).

³⁵ Governor's 2001-03 Budget Veto Message, at 108.

³⁶ Id. at 109.

³⁷ Wis. Stat. § 974.07(6) (2001-2002).

³⁸ Id.

³⁹ Id.

⁴⁰ Wis. Stat. § 974.07(6)(d) (2001-2002).

⁴¹ This discovery provision was added to the bill after the National Commission on the Future of DNA Evidence adopted its model statute, which included a discovery provision. Wisconsin's discovery provision is broader than the model bill, however, because the Wisconsin bill expressly provides for access to biological evidence as a matter of discovery prior to entry of an order for DNA testing. The National Commission's uniform bill provides only for discovery of information relating to any DNA testing that has already been performed in a case, such as access to the laboratory reports prepared in connection with the DNA testing, as well as the underlying data, and laboratory notes. Uniform Statute on Postconviction DNA Testing, § C.3. This difference seems to confirm that the Wisconsin Legislature did indeed intend to include actual access to the biological material as a matter of discovery.

⁴² Wis. Stat. § 974.07(11) (2001-2002).

⁴³ Wis. Stat. § 974.07(10)(a) (2001-2002).

⁴⁴ Wis. Stat. § 974.07(10)(a) (2001-2002).

⁴⁵ Id.

⁴⁶ Id.

⁴⁷ Wis. Stat. § 974.07(10)(b) (2001-2002).

⁴⁸ Wis. Stat. § 980.101(2) (2001-2002).

⁴⁹ Wis. Stat. § 980.101(2) (a)(2001-2002).

⁵⁰ Wis. Stat. § 980.101(2) (b)(2001-2002).

⁵¹ Wis. Stat. § 974.07(9) (2001-2002).

⁵² Id.

⁵³ Wis. Stat. § 939.74(2d).

⁵⁴ Wis. Stat. § 939.74(2)(b) (2001-200

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