In order to establish prejudice in a motion for a new trial due to ineffective assistance of counsel, the defendant must show that, but for the act or omission in question, the outcome of the trial would have been different.

In a post-conviction motion for testing of evidence, the burden of establishing reasonable probability, that the defendant would not have been prosecuted or convicted if forensic testing was done, falls upon the defendant. Additionally, forensic evidence must still exist and must be readily available for retesting.

An actual innocence claim is equivalent to an assertion of at least a 51-percent chance that the defendant would not have been convicted if exculpatory test results had been obtained at the time of trial. In a case involving DNA evidence, a successful Actual Innocence claim entitles the defendant to DNA testing. The testing is funded by the state, not by the defendant.

The Justice for All Act of 2004 provides for post-conviction DNA testing for federal prisoners with Actual Innocence claims for whom DNA testing may produce evidence of innocence. The act also creates grants to states to fund post-conviction DNA testing.

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