Forty-eight states, the District of Columbia, and the federal government have adopted some form of postconviction DNA testing law. Some significant challenges arise when these laws are applied to cases like Richards, which do not involve rape kits but rather require a broader view of how DNA testing can prove innocence. Furthermore, the laws are not uniform, and in the politically charged atmosphere of criminal lawmaking, some of the laws are poorly thought out. This Article reviews these postconviction statutes from the perspective of practitioners who litigate these cases, while also exploring the major questions that ought to be addressed by the statutes, including: For what crimes should DNA testing be available? What standards must be met for postconviction testing? Who should do the testing? Who should pay for the testing? Should counsel be appointed? Should there be time limits on the testing? How long should biological material be maintained after conviction, and should there be sanctions for the failure to maintain it properly? Should the courts order DNA results be run through the DNA databank? Should the denial of a DNA testing motion be appealable? Should postconviction DNA testing be granted to those inmates who plead guilty or confessed to their crime? Should testing be available to individuals who are no longer incarcerated or who may be subject to requirements such as sex-offender registration? Ultimately, this Article makes recommendations for statutory changes and interpretations. The Richards case is referred to throughout this Article as a reference point for the rationales behind these recommendations.
Justin Brooks & Alexander Simpson, Blood Sugar Sex Magik: A Review of Postconviction DNA Testing Statutes and Legislative Recommendations, 59 DRAKE L. REV. 799 (2011).