4.13Postconviction Request for DNA Testing¹

A defendant does not have a constitutional due process right to postconviction access to the State’s evidence for DNA testing. Dist Attorney’s Office for the Third Judicial Dist v Osborne, 557 US 52, 55-56, 73-74 (2009).

A defendant serving a prison sentence for a felony, if convicted of that felony at trial before January 8, 2001, may petition the circuit court to order two kinds of relief: (1) DNA testing of biological material that was identified during the investigation that led to the defendant’s conviction, and (2) a new trial based on the results of the DNA testing. MCL 770.16(1). “A petition under [MCL 770.16] shall be filed in the circuit court for the county in which the defendant was sentenced and shall be assigned to the sentencing judge or his or her successor. The petition shall be served on the prosecuting attorney of the county in which the defendant was sentenced.” MCL 770.16(2).

MCL 770.16(1) specifically bypasses the ordinary time limitations prescribed in MCL 770.2 for filing motions for a new trial. MCL 770.16(1) begins: “Notwithstanding the limitations of [MCL 770.2] . . . .” MCL 770.2(1) states: “Except as provided in [MCL 770.16], in a case appealable as of right to the court of appeals, a motion for a new trial shall be made within 60 days after entry of judgment or within any further time allowed by the trial court during the 60-day period.”

Under certain circumstances, a defendant convicted of a felony at trial on or after January 8, 2001, may also petition the court to order DNA testing of biological material identified during the investigation leading to his or her conviction, and for a new trial based on the results of that DNA testing. MCL 770.16(1). To petition the court for DNA testing under these circumstances, the defendant must show all of the following:

“(a) That DNA testing was done in the case or under this act.

(b) That the results of the testing were inconclusive.

(c) That testing with current DNA technology is likely to result in conclusive results.” MCL 770.16(1). 

A petition filed under MCL 770.16 must satisfy the following requirements:

“[The petition] shall allege that biological material was collected and identified during the investigation of the defendant’s case. If the defendant, after diligent investigation, is unable to discover the location of the identified biological material or to determine whether the biological material is no longer available, the defendant may petition the court for a hearing to determine whether the identified biological material is available. If the court determines that identified biological material was collected during the investigation, the court shall order appropriate police agencies, hospitals, or the medical examiner to search for the material and to report the results of the search to the court.” MCL 770.16(3).

“MCL 770.16 envisions two main phases; the first phase involves the court assessing whether DNA testing should be ordered, and the second phase entails, if DNA testing was ordered, whether a motion for new trial should be granted.” People v Poole (On Remand), 311 Mich App 296, 311 (2015). It is improper for a court “to conflate the two phases” contemplated under MCL 770.16 and to “deny DNA testing on the basis that [the] court concludes that it would deny a future motion for new trial regardless of the results of any DNA testing.” Poole, 311 Mich App at 311.

“MCL 770.16(1) does not limit requests for DNA testing to those cases in which the biological material itself [led] to the defendant’s conviction”; rather, MCL 770.16(1) simply requires that the biological material was identified during the investigation that led to the defendant’s conviction. People v Hernandez-Orta, 480 Mich 1101 (2008) (emphasis added). The Court reasoned:

“The defendant in this case has presented prima facie proof that ‘the evidence sought to be tested is material to the issue of’ his identity as the perpetrator under [MCL 770.16(4)(a)²]. If the DNA from semen found in the victim’s body shortly after the assault does not match the defendant’s DNA profile, this evidence has a tendency to show that defendant is not the perpetrator—particularly if the DNA also does not match that of the victim’s boyfriend, with whom the victim acknowledged having sexual relations two days before the alleged offense.” Hernandez-Orta, 480 Mich at 1101.

The following subsections explain the requirements for a court to order postconviction DNA testing and includes a discussion of the rights and duties established under MCL 770.16.

A.Requirements for Ordering Postconviction DNA Testing

“[I]f a defendant satisfies the required factors with respect to the question whether DNA testing should be ordered, ‘[t]he court shall order DNA testing[.]’ MCL 770.16(4) (emphasis added).” People v Poole (On Remand), 311 Mich App 296, 311 (2015) (alterations in original).

To qualify for DNA testing under MCL 770.16(4), a defendant must do all of the following:

“(a) Present[] prima facie proof that the evidence sought to be tested is material to the issue of the convicted person’s identity as the perpetrator of, or accomplice to, the crime that resulted in the conviction.

(b) Establish[] all the following by clear and convincing evidence:

(i) A sample of identified biological material described in [MCL 770.16(1)] is available for DNA testing.

(ii) The identified biological material described in [MCL 770.16(1)] was not previously subjected to DNA testing or, if previously tested, will be subject to DNA testing technology that was not available when the defendant was convicted.

(iii) The identity of the defendant as the perpetrator of the crime was at issue during his or her trial.”

When deciding a petition for DNA testing under MCL 770.16, a court must state its findings of fact on the record or must make written findings of fact supporting its decision. MCL 770.16(5).

The meaning of the term material as used in MCL 770.16(4)(a) “means that the ‘evidence sought to be tested’ must be of some consequence to the issue of identity in the case. In other words, the defendant must provide prima facie proof that there is some logical relationship between the evidence sought to be tested and the issue of identity.” People v Barrera, 278 Mich App 730, 737 (2008).³ “[T]he materiality of . . . blood samples to the issue of identity [of a perpetrator] is not affected or lessened by the fact that blood-type evidence excluding [a] defendant as a donor was already presented at [an earlier jury] trial; all of this scientific evidence is material or relevant to defendant’s identity as the perpetrator.” Poole, 311 Mich App at 311. “DNA testing is justified [where] . . . there exists prima facie proof that the blood samples, which will be subjected to DNA testing, are material to defendant’s identity as the perpetrator, given that the DNA testing could point to another specific individual as the perpetrator.” Id. at 312-313.

B.If the Court Grants Petition for DNA Testing

“If the court grants a petition for DNA testing under this section, the identified biological material and a biological sample obtained from the defendant shall be subjected to DNA testing by a laboratory approved by the court. If the court determines that the applicant is indigent, the cost of DNA testing ordered under this section shall be borne by the state. The results of the DNA testing shall be provided to the court and to the defendant and the prosecuting attorney. Upon motion by either party, the court may order that copies of the testing protocols, laboratory procedures, laboratory notes, and other relevant records compiled by the testing laboratory be provided to the court and to all parties.” MCL 770.16(6).

C.Reviewing DNA Test Results and Motion for New Trial

1.Results Inconclusive or Show Defendant is Source

“If the results of the DNA testing are inconclusive or show that the defendant is the source of the identified biological material,” the court must deny the defendant’s motion for new trial, and the defendant’s DNA profile must be “provided to the department of state police for inclusion under the DNA identification profiling system act[.]” MCL 770.16(7)(a)-(b).

2.Results Show Defendant Not Source

“If the results of the DNA testing show that the defendant is not the source of the identified biological material, the court shall appoint counsel pursuant to MCR 6.505(A) and hold a hearing to determine by clear and convincing evidence all of the following:

(a) That only the perpetrator of the crime or crimes for which the defendant was convicted could be the source of the identified biological material.

(b) That the identified biological material was collected, handled, and preserved by procedures that allow the court to find that the identified biological material is not contaminated or is not so degraded that the DNA profile of the tested sample of the identified biological material cannot be determined to be identical to the DNA profile of the sample initially collected during the investigation described in [MCL 770.16(1)].

(c) That the defendant’s purported exclusion as the source of the identified biological material, balanced against the other evidence in the case, is sufficient to justify the grant of a new trial.” MCL 770.16(8).

D.Retesting Biological Material

“[N]o provision set forth in MCL 770.16 prohibits the issuance of an order granting DNA testing of previously tested biological material.” People v Poole, 497 Mich 1022 (2015), citing MCL 770.16(4)(b)(ii).

“Upon motion of the prosecutor, the court shall order retesting of the identified biological material and shall stay the defendant’s motion for new trial pending the results of the DNA retesting.” MCL 770.16(9).

E.Court Must Make Findings of Fact Regarding Decision to Grant or Deny Motion for New Trial

“The court shall state its findings of fact on the record or make written findings of fact supporting its decision to grant or deny the defendant a new trial under [MCL 770.16]. Notwithstanding [MCL 770.3⁴], an aggrieved party may appeal the court’s decision to grant or deny the petition for DNA testing and for new trial by application for leave granted by the court of appeals.” MCL 770.16(10).

F.Prosecutor Must Inform Victim of Defendant’s DNA Petition

“If the name of the victim of the felony conviction described in [MCL 770.16(1)] is known, the prosecuting attorney shall give written notice of a petition under this section to the victim. The notice shall be by first-class mail to the victim’s last known address. Upon the victim’s request, the prosecuting attorney shall give the victim notice of the time and place of any hearing on the petition and shall inform the victim of the court’s grant or denial of a new trial to the defendant.” MCL 770.16(11).

G.Duty to Preserve Biological Material

“The investigating law enforcement agency shall preserve any biological material identified during the investigation of a crime or crimes for which any person may file a petition for DNA testing under this section. The identified biological material shall be preserved for the period of time that any person is incarcerated in connection with that case.” MCL 770.16(12).