Vol. 75, No. 5, May
2002
New Laws Reflect the Power and Potential of DNA
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.
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.
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.
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.
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
Wisconsin
Lawyer