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Discovery – DNA Testing, at Defendant’s Own Expense, § 974.07(6)

State v. James M. Moran, 2005 WI 115, reversing unpublished decision
For Moran: Colleen D. Ball, State Bar Pro Bono Project


¶3 We conclude that the plain language of § 974.07(6) gives a movant the right to conduct DNA testing of physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material, if the movant meets several statutory prerequisites. First, the movant must show that the evidence meets the conditions under Wis. Stat. § 974.07(2). Second, the movant must comply with all reasonable conditions imposed by the court to protect the integrity of the evidence. Third, the movant must conduct any testing of the evidence at his or her own expense. If a movant seeks DNA testing at public expense, the movant must proceed under § 974.07(7)(a) or (b), and satisfy the heightened requirements in subsection (7).

There are three required showings under subs.(2): relevance of requested material; government’s possession of requested material; and no prior DNA testing of material (or, testing by less sophisticated method than now available), ¶42. If those hurdles are passed, then the material may be tested at defendant’s expense, with the judge authorized to set testing conditions under subs.(6)(c), ¶43. After testing is accomplished, the judge determines if the results support the claim for relief and, if so, then an evidentiary hearing will be conducted, ¶47. The court, it should be noted, is troubled by the idea that § 974.07 permits greater access to testing for solvent defendants:

¶56 The harsh reality of life is that some persons who have been convicted of crime may have the means to hire attorneys or investigators post-conviction under circumstances that would never justify the expenditure of public money. The court is being asked in this case to prevent a person from conducting DNA testing at his own expense. We are unable to discern from the plain language of § 974.07 a clear legislative intent to block testing demanded by a person willing and able to pay until that person satisfies the requirements for publicly funded DNA testing. We encourage the legislature to revisit Wis. Stat. § 974.07 to define undefined terms, set limits to the evidence that must be provided, and give courts clear guidelines in procedure.

Real as this concern of resource-based access certainly is, it is entirely possible that it is beyond legislative authority to fix — that is because of a growing possibility that postconviction access for the purpose of testing at the convict’s expense may well be raised under 42 USC § 1983: Osborne v. District Attorney’s Office, 9th Cir No. 04-35126 (1983 supports prisoner’s postconviction request to compel state authorities to provide access to biological material for prisoner’s DNA testing), cert granted, 11/3/08. ; McKithen v. Brown, 2nd Cir No. 03-0168, 3/13/07. This issue has certainly split those federal courts to address the issue. In all likelihood the issue will be raised with increasing frequency, and it is best to keep a close eye on the trend-line. It should also be kept in mind that Wisconsin, as well as federak, courts have jurisdiction over 1983 claims, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977).


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