Tuesday, May 08, 2007

Ohio post-conviction DNA testing

Post-conviction DNA testing of inmates in Ohio begins in 2003 when Senate Bill 11 was passed and codified as Ohio Revised Code §2953.71 et.seq..

Last month, the Ohio Supreme Court held that trial courts had the discretion to apply the provisions of those statutes based on specific facts & circumstances on a cases-by-case basis. The Court’s summary, there, states that “rather than stating a blanket rule, the Court held that when an eligible inmate files a post-conviction application for DNA testing, a trial court should analyze the facts of that case to determine whether the inmate must first demonstrate that negative results of genetic testing would almost certainly result in a reversal of his or her conviction, or whether the court should immediately order the prosecuting attorney to search for & report on any surviving genetic material from the inmate’s trial.” (See State v. Buehler)

That decision resolved a certified conflict sent to the Supreme Court by two Ohio appeal courts questioning whether § 2953.71 thru 2953.82 needed to be read sequentially, or the prosecuting attorney ordered in all cases to prepare the DNA evidence report required even though a showing that specific results still wouldn’t be “outcome determinate.”

One of the earliest cases addressing Ohio’s inmate post-conviction DNA testing statutes was the Ninth District Court of Appeals case State v. Rossiter in September 2004, where it was held that “the trial court clearly misread the statute” in denying Rossiter’s application. The Court, however, also noted in Rossiter that, while § 2953.82 requires “the prosecuting attorney to file a statement with the trial court that indicates whether the prosecuting attorney agrees or disagrees that the inmate should be permitted to obtain DNA testing,” such statement was not part of the record.

In Feb. 2005, the Eighth District Court of Appeals in Cuyahoga County said that, based on § 2953.82(D) – which states that “if the prosecuting attorney disagrees that the inmate should be permitted to obtain DNA testing… disagreement is final and not appealable by any person to any court..” – once a prosecutor had filed his statement of disagreement, the trial court properly denied the application for DNA testing, and the appeals court did not have any jurisdiction. (See State v. Ruiz)

Last week we muddled the waters a bit more as the Supreme Court again addressed prosecutors’ statements, upholding an Eleventh District’s opinion in 2005 that “because R.C. 2953.82(D) provides that a prosecuting attorney’s decision to disagree with an inmate’s request for DNA testing is final and not appealable by any person to any court… it interferes with the exercise of judicial authority, violates the separation-of-powers doctrine, and is unconstitutional.” ( State v. Sterling, case & court summary)

(Note: Ohio Attorney General’s Opinion 2005-009 addresses the length of time being prescribed to retain biological trial evidence; also see Ohio Attorney General’s “Protocol for Post-Conviction DNA Tests”)

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