§ 9.03. Policies for Forensic Testing

Agencies should adopt policies for determining when and whether evidence should be submitted for forensic testing, and should set priorities to ensure that, when feasible, probative evidence is tested in a prompt manner.


a. Policies for evidence submission. Resources for forensic testing are not unlimited, and not all evidence can or should be tested scientifically. For those reasons, agencies should develop policies regarding when evidence should be tested. Those policies should be informed by scientists who can advise on what types of analyses are the most probative. Those policies also should be informed by police and community priorities concerning what types of investigations should be prioritized in the use of laboratory and scientific resources.

b. Prompt testing. Evidence may be submitted for testing, but its testing may be subjected to laboratory delays. Agencies should identify evidence that could benefit particularly from forensic testing in order to prioritize testing of such evidence. For example, agencies might prioritize testing in particularly important cases to avoid delaying the development of potentially probative evidence. Agencies also might prioritize testing to ensure that evidence does not degrade. If certain types of criminal-offenses cases are prioritized, the standards for selecting which cases receive priority in testing otherwise should be consistent and generally applicable.

Reporters’ Notes

Most crime-scene evidence is not tested using forensic analyses, and while forensic resources must be prioritized, far too often evidence has been lost or not tested in important cases in which it could play a useful role. Joseph Peterson et al., Nat’l Inst. of Justice, The Role and Impact of Forensic Evidence in the Criminal Justice Process 9 (2010) (describing how “a major finding of the study was that most evidence goes unexamined[.]”). Forensic evidence can go untested for a variety of reasons. There may be no probative evidence to test or the case may be solved through other means. However, there are cases in which crime-scene evidence that could be valuably tested is not, due to neglect or insufficient laboratory resources. One study, for example, found that 40 percent of unanalyzed rape and homicide cases were estimated to have DNA evidence that could be tested. Kevin J. Strom et al., 2007 Survey of Law Enforcement Evidence Processing: Final Report 4-5 (2009). Evidence may not be collected from a crime scene in the first place; large percentages of cases, including sexual-assault cases, do not have physical evidence collected. Peterson, supra.

There have been exonerations of innocent people who were convicted because laboratory analysts failed to test forensic evidence that could have cleared them by the time of their trials. This issue has become an important policy concern nationwide. One example is the case of Marlon Pendleton, who spent 10 years in prison before DNA exonerated him; the lab analyst had testified incorrectly at the time of trial that there was insufficient evidence to test. Innocence Project, Marlon Pendleton Celebrates 12 Years of Freedom, http://www.innocenceproject.org/cases‌/‌Marlon-Pendleton (last visited July 31, 2019).

Resources are not unlimited; but this only underscores the need for policy on prioritization of forensic testing. For example, agencies may adopt rules providing that analysis of complex DNA mixtures is done only in the most serious felony cases, when such time-consuming work is justified. Some agencies have failed to process evidence from cases—such as sexual-assault kits—based not on any public policy, but due to simple neglect. Clear rules are needed as to when to submit evidence for forensic testing. Policies can require an initial examination to reveal whether the evidence is of sufficient quality to conduct testing. Even then, in higher-priority cases, agencies may require a second analyst to confirm that the evidence is not of sufficient quality. Additionally, resources should be made available to reduce backlogs. Federal funding is available for those purposes, particularly in DNA testing in sexual-assault cases. DNA testing constitutes only one-third of the work requested of public crime laboratories, but despite federal grant support, it continues to account for much of the backlog in case processing. Matthew R. Durose et al., Bureau of Justice Statistics, U.S. Dep’t of Justice, Census of Publicly Funded Forensic Crime Laboratories, 2009 4 (2012). Funding should be more effectively directed toward backlog reduction in priority cases.

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