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Discovery – (Court-Ordered) DNA Testing, § 974.07(7)

State v. Kenneth A. Hudson, 2004 WI App 99
For Hudson: David D. Cook

¶13. Hudson also argues he is entitled to court-ordered DNA testing under Wis. Stat. § 974.07(7)(a). Subsection (7)(a) requires the trial court to order DNA testing when the following four conditions are met:

A court in which a motion under sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:   1.  The movant claims that he or she is innocent of the offense at issue in the motion under sub. (2).

2.  It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.

3.  The evidence to be tested meets the conditions under sub. (2) (a) to (c).

4.  The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

The trial court found, and the State argues on appeal, that Hudson could not establish the second condition. In light of the overwhelming evidence supporting Hudson’s guilt, the court concluded it was not reasonably probable that Hudson would not have been convicted even if the supposed “exculpatory” DNA testing results showed animal blood. We agree.

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