These are cases in which biological evidence still exists. Results of DNA testing may provide additional, albeit inconclusive, information as to guilt or innocence.

Example: Petitioner is presently incarcerated for a multiple-assailant rape. The victim testified that seven perpetrators were involved but is uncertain whether all actually engaged in sexual intercourse. If vaginal swabs that were preserved are tested and petitioner's DNA profile is not found, the significance of the results will be minimal because they may not significantly undermine confidence in the outcome of the proceedings. It should be noted that if other participants in the rape can be identified through DNA testing and the petitioner can show the unlikelihood that he ever had contact/association with the other participants, this case may fall into category 1 or 2.

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