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Discovery – (Independent) DNA Testing, § 974.07(6)(a)

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

¶11. Hudson first argues that under Wis. Stat. § 974.07(6)(a), the State must “make available” physical evidence containing biological material for independent DNA testing. Subsection (6)(a) states:

Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:1.  Findings based on testing of biological materials.

2.  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. (Emphasis added.)

¶12. In the trial court, the State argued, and the court agreed, that Wis. Stat. § 974.07(6) did not compel the State to turn over evidence for independent DNA testing but only required the State to provide a movant access to review the material in order to determine which specific items he or she would like tested pursuant to a subsequent court order under subsection (7). On appeal, the State has reversed its position and concedes the trial court erred by construing the statute to prevent independent testing of certain items at Hudson’s expense, subject to protective conditions imposed by the trial court. See Wis. Stat. § 974.07(6)(c) (“Upon motion of the district attorney or the movant, the court may impose reasonable conditions on availability of materials requested … in order to protect the integrity of the evidence.”). We accept the State’s concession and, therefore, do not address this issue further.

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