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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