Monday, July 23, 2018
The pertinent portion of California's postconviction DNA testing statute, Cal. Penal Code § 1405(f), provides in relevant part that:
(1) A court shall not order DNA testing unless the petitioner demonstrates by a preponderance of the evidence that:
(a) Favorable results of the DNA testing will demonstrate the petitioner's actual innocence;
(b) A law enforcement agency collected biological evidence pertaining to the offense and retains actual or constructive possession of the evidence that allows for reliable DNA testing;
(I) Conclusive DNA results were not available prior to the petitioner's conviction; and
(II) The petitioner did not secure DNA testing prior to his or her conviction because DNA testing was not reasonably available or for reasons that constitute justifiable excuse, ineffective assistance of counsel, or excusable neglect; and
(d) The petitioner consents to provide a biological sample for DNA testing.
So, where does that leave pleading defendants?
Colorado's state is an example of a completely open ended postconviction DNA statute. It does not reference a trial, a guilty plea, a verdict, or identity being issue. Therefore, if I have to guess, I think that pleading Colorado defendants would be able to seek postconviction DNA testing if they meet the statutory requirements. But I'm not aware of any such cases.