DNA testing: No longer just for prosecutors

In the growing debate over who should have access to DNA evidence, California seems poised to go the furthest yet in allowing jailed felons to use such "genetic markers" to try to clear their names and undo their convictions.

A handful of other states already permit a limited number of inmates to request DNA testing. For the wrongly convicted, a mismatch between the inmate's own DNA samples and the crime-scene evidence - such as saliva, hair, and skin cells - can prove the inmate was not, in fact, at the scene.

The California measure, which state lawmakers say is one of the most momentous changes in criminal law here in decades, breaks important ground in the field of prisoners' rights. It requires that the state preserve DNA evidence for as long as a convict is imprisoned.

"This is an extremely important turning point nationally, in that it mirrors the trend of growing awareness for DNA legislation on behalf of inmates," says Jane Siegel Greene of the Innocence Project, which has helped free about half of the 72 prisoners whose convictions have been overturned since 1989.

The law, if signed by Gov. Gray Davis (D), would guarantee that authorities do not destroy DNA evidence in a criminal case, either deliberately or as part of routine housekeeping. Already, the bill is providing a nudge to federal legislation, even as it becomes a model for other states to follow.

"As DNA laws have become more and more common, we have seen concomitant moves by local law-enforcement agencies to destroy evidence so that it can't be used to clarify guilt or innocence," says Valerie Small Navarro of the American Civil Liberties Union in Sacramento. "The [California law's] provisions against the destruction of biological evidence are crucial."

Indeed, the expansion of DNA testing has helped prosecutors swiftly solve crimes and secure thousands of convictions. Now, with this latest spate of legislation, states are also allowing such tests on the inmate's behalf.

The California bill passed both houses of the Legislature with bipartisan support. Prosecutors and defense attorneys also back it. Governor Davis is expected to sign the measure.

It provides that a convicted felon may, in writing, ask the trial court for a forensic DNA lab test on any evidence related to the charges that led to the conviction - but that hadn't been tested previously because the evidence or the technology was not available during the trial. Such tests cost between $3,000 and $5,000.

"This is a very big deal because it goes to Americans' core beliefs of fairness and justice over whether or not innocent people are sitting in prisons," says Jeff Thoma, a member of the national Commission on the Future of DNA Evidence for the US Justice Department. "This law will give them the right to prove their innocence."

To make use of the law, convicts must meet several criteria and persuade judges of the likelihood that justice has not been served in their cases.

"The convicted person must show conclusively the likelihood that the verdict or sentence would have been more favorable if DNA testing were available at the time," says Mr. Thoma. "This allows a great amount of discretion to courts that they didn't have previously."

Such discretion is expected to alleviate time-consuming litigation - a criticism of other state laws that allow prisoners to request DNA testing. Many inmate requests have been fought tooth-and-nail by prosecutors.

Six states now have some sort of provision for post-conviction DNA-testing: New York, Illinois, Arizona, Florida, Oklahoma, and Tennessee. Some, though, apply only to death-penalty cases.

California's broader law would bring that number to seven and, because of the state's size, be expected to generate copycat legislation. Three other states are considering laws to guarantee inmate access to DNA evidence. Six states, among them New Jersey, Louisiana, and Maryland, have rejected similar bills.

Proponents say the California bill will mean the difference between life and death for hundreds of state inmates, and if such legislation dominoed nationwide, affect about 10,000 inmates.

Opponents worry about privacy issues in the testing of DNA for criminals, and say it is unclear how many inmates might petition for such tests.

But proponents say such fears are unfounded. In Illinois, where the Innocence Project has worked in recent years to free more than 25 wrongly convicted individuals, fewer than 100 DNA tests have been conducted since the state passed a similar law.

"The fear that this will cause a floodgate of frivolous requests is simply unfounded, because only a certain number of cases generate biological evidence," says Greene. Some of the California bill's provisions have been discussed in two congressional bills, known jointly as the Innocence Protection Act. But observers say action is stalled because of sensitivity over the death penalty in both presidential campaigns.

"Federal movement ... is overshadowed by the run for the White House," says Barry Scheck of the Innocence Project. "But the California measure is providing enormous momentum."

(c) Copyright 2000. The Christian Science Publishing Society