When deciding a defendant’s motion for postconviction DNA testing under Wis. Stat. § 974.07, must the circuit court presume that the DNA testing results will be exculpatory and then assess whether such presumed exculpatory results would lead to a reasonable probability that he would not have been prosecuted or convicted?
The issue here turns on the meaning of § 974.07(7)(a)2., which spells out one of the requirements a defendant must meet to get postconviction DNA testing of evidence at public expense. Specifically, the condition specified in the statute is that “[i]t is reasonably probable that the movant would not have been prosecuted [or] convicted … for the offense at issue in the motion under sub. (2), if exculpatory [DNA] testing results had been available before the prosecution [or] conviction … for the offense.”
Does this statute plainly mean, as Hennings argues, that the court must presume that the DNA testing results will be exculpatory, and then assess whether such presumed exculpatory results would lead to a reasonable probability that he would not have been prosecuted or convicted? Or, as the state argued (and the circuit court concluded), does Hennings’s straightforward grammatical reading lead to absurd results that could not have been intended by the legislature?–namely, that if the court must presume to be “exculpatory” any piece of evidence obtained by police from a crime scene that is arguably relevant to the investigation or prosecution and might have someone’s DNA on it, then there is no practical limit to mandatory postconviction testing at public expense, a result that would burden the resources of the state crime lab. Hennings rightly responds to the state’s (and court’s) reading that a presumption of exculpatory test results won’t require testing in every because the evidence must be “relevant to the investigation or prosecution that resulted in conviction,” § 974.07(2)(a), and because § 974.07(7)(a)2. itself requires an additional showing of a reasonable probability of a different result. See also State v. Hudson, 2004 WI App 99, ¶¶19-21, 273 Wis. 2d 707, 681 N.W.2d 316 (defendant could not demonstrate a reasonable probability that he would not have been prosecuted or convicted even if exculpatory DNA testing results were presumed “given the overwhelming evidence of his guilt”).
If this issue is, at seems to be, a relatively straightforward question of statutory interpretation, why, one might ask, the need to certify it to the supreme court? We’ll let the court of appeals explain that:
We acknowledge that the State’s and the circuit court’s warnings of unreasonably high numbers of motions for ultimately unfounded DNA testing at public expense are mere assertions, and we cannot discern whether such absurd results will follow from Hennings’[s] construction of the statute. Nevertheless, if the State and circuit court are correct, then the prospect of such a significant statewide impact warrants guidance from the Wisconsin Supreme Court. For the reasons above, we conclude that the dispute over the test to be applied when a defendant seeks DNA testing at public expense is a matter of statewide concern which is in need of prompt and final resolution by the Wisconsin Supreme Court. (Certification, page 9).