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DNA - A Prosecutor’s Practice Notebook Inventory

Defendant's Right to Retest DNA Evidence

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Photo of a DNA evidence sample in a vial being tested in a lab
National Institute of Justice (NIJ) (see reuse policy).

By rule, statute, or law, most jurisdictions provide for defense inspection of physical evidence relevant to the case. Several states explicitly provide for the retesting of DNA-related evidence by a defendant [See Iowa Code Ann. §813.2 (Rule 13(2)(b)(1); La. Code Crim. P. Art. 718 (West 1981); Wis. Stat. Ann. §971.23(5) (West 1985)]. Other jurisdictions have held that a defendant's right to conduct retesting of evidence in the prosecution's possession is implicit in the right to inspect [State v. Crabtree, 482 S.E. 2d 605; 198 W. Va. 620 (W.V. 1996)].

Ethical issues surrounding independent typing by the defense may arise at the pretrial, trial, post-conviction, or appellate stage of a prosecution.  Prosecutors may want to make a pretrial record of the availability of an evidence sample.  

Postconviction motions for additional and/or independent DNA typing may be framed by the defense as an ethical obligation of the prosecutor, one which cannot be denied.   A prosecutor can counter such motion by offering to perform such typing pretrial.  This will weaken a claim of unethical conduct by the prosecution in later refusing to conduct post-conviction DNA typing.

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