Friday, September 28, 2018
The pertinent portions of Dakota's postconviction DNA testing statute, South Dakota Code Section 23-5B-1(9) & (10), state that a court will allow for postconviction DNA testing if
(9) The petitioner identifies a theory of defense that: (a) Is consistent with an affirmative defense presented at trial; or (b) Would establish the actual innocence of the petitioner of the felony offense referenced in the petitioner's assertion under subdivision (1); and
(10) If the petitioner was convicted following a trial, the identity of the perpetrator was at issue in the trial.
So, where does that leave pleading defendants?
The language of subsection (10) seems to make clear that pleading defendants can seek postconviction DNA testing by allowing for the possibility that defendants convicted after a trial can seek testing. Therefore, by implication, pleading defendants can seek testing as well.