Chairman Hatch and members of the Senate Judiciary Committee, thank you for inviting me here today to address the issue of post-conviction DNA testing and how we should incorporate DNA testing more fully into the American criminal justice system.

DNA testing represents an extraordinary enhancement in our ability to solve crimes. With DNA testing, we can determine whether a particular patch of blood, a hair, or a semen sample belongs to a specific individual. The potential significance of using DNA testing in the criminal justice system is enormous and fundamental. This evidence can exonerate individuals or it can inculpate them; an innocent person can be freed; a guilty perpetrator found.

This is an extremely powerful tool, one that can bring greater guarantees of fairness to our judicial system. As a result, it is the responsibility of all involved -- legislators, prosecutors, defense counsel, judges -- to work together to determine the appropriate and just use of this investigative device. DNA testing will never replace the fact finding of our juries, the legal determinations of our judges, or the constitutional protections afforded our citizens. Yet, our commitment to the fundamental principles of justice and liberty will be reflected by the decisions we make about how we use this new scientific tool.

Like every American, I treasure the constitutional protections that are the underpinnings of our criminal justice system, and that are the envy of the world’s citizenry. As a former prosecutor and now New York State’s chief law enforcement officer, I have seen first hand the importance of these protections. The fundamental premise of American justice is the presumption of innocence. Our basic legal principles are intended to ensure, to the extent possible, that fact finding is performed fairly, efficiently and justly to exonerate the innocent, punish the guilty, and protect our citizens.

Our federal and state constitutions are replete with rights we afford the accused -- the right to notice of charges, the right to a speedy and public trial, the right to confront witnesses, the right to counsel, the right against self-incrimination. We as a society have made a profound commitment to avoid punishing the innocent.

This is particularly important to those of us who support the death penalty in appropriate circumstances. We have determined that there are instances when the crimes are so egregious that society’s ultimate punishment -- the death penalty -- may be appropriate. But the imposition of this punishment can be justified only if we make full use of all available tools to aid in the determination of guilt or innocence.

This commitment must be reflected in the choices we make about post-conviction DNA testing. It is not something to be feared, but rather to be accepted and incorporated into our criminal justice procedures and practices.

Some opponents of post-conviction DNA testing have argued that it cannot conclusively prove guilt or innocence in many cases, and therefore we should not burden ourselves with stringent requirements to provide such testing. That position ignores the remarkable power of DNA testing in those cases where identification is at issue -- remember that this is the tool which answered the centuries-old question whether Thomas Jefferson and Sally Hemings produced offspring together.

DNA testing can provide evidence which is probative of guilt or innocence in many cases, and therefore can determine that individuals who have been incarcerated for years -- or even are awaiting the death penalty -- may be innocent of the crimes for which they were convicted. The United States always has demonstrated its basic commitment of fairness to the accused, and therefore any marginal burdens are far outweighed by the ability to prevent the punishment of the innocent.

New York State is a leader in this area, having passed legislation granting a statutory right to post-conviction DNA testing almost six years ago. Our experience demonstrates that post-conviction DNA testing can bolster the integrity of our judicial system without unduly burdening our criminal justice resources.

As early as 1988, Governor Mario Cuomo established a Panel on Genetic Fingerprinting to review this new technology. Two years later, the state Division of Criminal Justice Services established the New York State DNA Advisory Committee; and the New York State DNA Scientific Review Board was formed in 1991. In 1994, the New York Court of Appeals, the highest court of our state, held that DNA evidence generally was accepted as reliable by the relevant scientific community and that results of DNA profiling tests could be admitted into evidence at a defendant’s trial.1

Later that year, the New York Legislature amended New York Criminal Procedure Law § 440.30 to authorize trial courts to order post-conviction DNA testing in certain circumstances. This statute requires a court to grant a defendant’s request for post-conviction forensic DNA testing where a court makes two determinations:

-first, that the specified evidence containing DNA was secured in connection with the trial resulting in the judgment;

-second, that if a DNA test had been conducted on such evidence and the results had been admitted in the trial resulting in the judgment, “there exists a reasonable probability that the verdict would have been more favorable to the defendant.”

As a preliminary matter, New York’s law enforcement community has been quite supportive of the immense value of DNA testing. For example, New York City Police Commissioner Howard Safir has written, with reference to post-conviction DNA testing, that he has “seen the immense value of DNA evidence as both an inculpatory and exculpatory tool for law enforcement,” and that the “existence of a statutory requirement makes a significant difference in the pursuit of justice.”2

Although New York does not have a complete accounting of every instance in which a defendant has requested DNA testing and the outcome, our preliminary indications demonstrate that a statutory right to post-conviction DNA testing, coupled with an appropriate standard, can produce results both just and practical. In New York, the existence of DNA evidence has led to post-conviction exonerations in at least seven cases.3 Thus, seven innocent individuals have been released thanks to this science and to our statutory guidelines.

I want to reassure this Committee and my state colleagues that the existence of a statutory right to post-conviction DNA testing does not mean that there will be an avalanche of testing at great cost to a state. With an appropriate standard, not all requests will be granted. In New York, for example, a request for DNA testing can only be granted if a court determines that there exists a reasonable probability that had the results -- presumably favorable to defendant -- been admitted at trial the verdict would have been more favorable to the defendant. For example, in one rape case, a court ordered testing where the victim had testified that she had not had sex with anyone but the rapist on the night of the crime. Matter of Washpon, 164 Misc.2d 991 (Kings County 1995).

On the other hand, courts have rejected requests for testing where they have determined that there was not a reasonable probability that the verdict would have been more favorable to the defendant even with the results of a DNA test. For example, in 1996, a court rejected a testing request in a rape case, where the defendant had conceded at trial that he had sex with the victim but claimed that it had been consensual. People v. Kellar, 218 A.D.2d 406 (3d Dept 1996).4 The results of DNA testing would not have altered the verdict in any way.

Thus, our experience in New York demonstrates that a statutory right to post-conviction DNA testing can result in innocent individuals being exonerated and released. And our experience in New York demonstrates that a statutory right to post-conviction DNA testing can be workable.

Although New York has been a leader in this area, and is one of only three states which have created a statutory right to post-conviction testing, our statute still could be improved. For example, CPL § 440.30(1-a) applies only to defendants convicted before January 1, 1996. This time limitation appears to represent a legislative judgment that before that date, DNA evidence could not always have been produced by a defendant at trial even with due diligence and thus DNA results presumptively constitute newly discovered evidence.

Although this may represent a rational judgment made by the legislature, the result is that for defendants convicted in New York after January 1, 1996, there is no statutory procedure authorizing post-conviction DNA testing. To the extent that those defendants may have had an opportunity to request such testing at trial but chose not to, there may be a lesser need for post-conviction testing. But some defendants may have been denied pretrial testing and should have an opportunity for post-conviction testing if their situation meets the statutory requirements. This problem could be solved either by establishing statutory standards for pretrial testing, or by extending the post-conviction DNA testing procedure set forth in CPL § 440.30(1-a) to all defendants, regardless of when they were convicted.

Other steps also can be taken to improve post-conviction DNA testing in New York. We do not require the reporting of all requests for such testing and therefore cannot fully evaluate whether we are adequately addressing the concerns of prosecutors, judges, victims as well as those convicted of crimes. Also, more guidance can be provided on the practical aspects of post-conviction DNA testing such as the collection, storage and retention of crime scene evidence and related training as well as the mechanics of the testing. If we study cases in which convictions have been vacated as a result of post-conviction analysis of DNA evidence, we may learn of additional ways to improve policies or practices relating to the operation of the criminal justice system. New York Governor George Pataki has proposed the creation of a DNA Review Subcommittee to address these issues, and I look forward to working with him in this endeavor.

Notwithstanding that there are areas warranting some improvement, the New York experience demonstrates the wisdom of a statutory right to post-conviction DNA testing. Such testing offers an invaluable tool to protect the integrity of -- and ultimately the public’s confidence in -- our criminal justice system.

While I appreciate and respect the federalism concerns raised by my colleagues in state government, DNA testing is too important to allow some states to offer no remedy to those incarcerated who may be innocent of the crimes for which they were convicted. That is why I support a federal statute which requires states to adopt post-conviction DNA testing procedures. While any such federal statute should be flexible enough to allow states to craft provisions tailored to their particular criminal and appellate procedures, it nevertheless should require that all state provisions contain some fundamental principles:

- first, every state should be required to provide for post-conviction DNA testing in all cases in which such evidence would be probative of guilt or innocence;

-second, before testing is done, defendants should be required to make a showing -- similar to New York’s - that the result of the DNA tests could provide favorable evidence related to the verdict, e.g., that if the results of the tests had been admitted at trial, there exists a “reasonable probability that the verdict would have been more favorable to the defendant;”

-third, states should make such testing available at state expense to indigent defendants;

-fourth, states should have reasonable time limits for defendants to request testing;

-fifth, states should set forth standards to assure the preservation of potentially testable evidence;

finally, states should make sure that the above rights are made meaningful, which means the availability of counsel, either through public defenders, appointed counsel programs, or funding for programs which represent indigent prisoners seeking post-conviction DNA testing.

* * * * *

All of us know that, right now, there are individuals sitting in prisons throughout the country who are innocent of the crimes for which they were convicted. Each such case represents a fundamental failure of our criminal justice system, and as the elected representatives of the people, it is incumbent upon us to make every effort to ensure that these wrongs are corrected.

Although ideally every state already would have established a right to post-conviction DNA testing, unfortunately that is not the case. Where, as here, fundamental human rights are at issue, an unjust punishment has been imposed, and sufficient time has passed without comprehensive state action, it is certainly appropriate for the Congress to step in and establish minimum protections that all states must adopt. Our history is replete with instances of such necessary and appropriate federal action. Congress did so in the 1960s when it passed civil rights laws abolishing discriminatory practices throughout the country, and it should do so again here.

Our criminal justice system must strive toward ever greater degrees of exactitude. The public’s confidence in our judicial system depends upon the fairness of the results it produces, and that fairness depends not just on the due process protections provided to defendants, but also on our willingness to correct any errors that occur despite those protections. Thus, if we fail to utilize the best scientific tools at our disposal -- or if we refuse to make those tools available to those who may have been wrongly convicted -- then we do a grave disservice to the public. On the other hand, if we choose to expand our use of this new technology, we will boost the public’s confidence in our courts and their respect for the law.

For these reasons, Congress should pass legislation ensuring that every state permits post-conviction DNA testing in appropriate circumstances. By doing so, Congress will ensure that innocent people will be released from prison. I can think of no cause more worthy of your attention and action.

Thank you once again for inviting me to appear here today, and I would be pleased to answer any questions that you have.