Defendant Entitled to Respond to State’s Motion to Dismiss Post-Conviction DNA Test

The Supreme Court of Utah found that a recently convicted defendant should have been allowed to file a memorandum in opposition to the State’s motion to dismiss a post-conviction DNA test

Gordon v. State, 2016 UT 11, 369 P.3d 1255.

     The Supreme Court of Utah recently clarified that the procedural due process rights of a convicted murder were violated because he could not file a memorandum in opposition to the state’s motion to dismiss his motion for a post-conviction DNA test. After being convicted of murder, the inmate petitioned to DNA test items that were not originally included in the trial. In response, the state motioned to dismiss the petition, which the court did before the petitioner could reply.
 
   The court found, by examining both the relevant statute and the Utah Rules of Civil Procedure, that if all of the elements are met for the specific statute in play of the petition, then the inmate had the right to supply a response motion.

    In addition, the supreme court clarified who had the burden of proof in in showing whether evidence not sought after in trail was done so because of “tactical reasons.” While the court did not rule on the merits of the issue, they clarified the rule by stating “the State has the burden of pleading that the petitioner declined to request DNA testing for tactical reasons, but that the burden of proof shifts to the petitioner to establish that he did not have tactical reasons for such failure.”

   The case was remanded so petitioner could properly respond to the motion to dismiss.

https://www.utcourts.gov/opinions/supopin/Gordon%20v.%20State20160323.pdf

Limited Warrant Okay For DNA Test of Victims and Witnesses in Assault

Under certain circumstances, police may gather DNA evidence of a non-cooperative victim or witness with a limited use warrant even if they are not suspected of any criminal wrongdoing.

In re Grand Jury Witness G.B., 2016 BL 167249, D.C., No. 15-CO-531, 5/26/16.

    The Supreme Court found that a minimally invasive DNA test was permissible with a limited-use warrant of a victim and witness in a crime, as long as the test is reasonable. The defining factors of reasonableness as identified by the court were the scope and manner of the test. In this instance, the test was a minimally invasive buccal swab that could be performed easily anywhere. The court also took into consideration that the test results were not allowed to be entered into a government database or be used to prosecute the victim for perjury. Moreover, the samples gathered after the test could be immediately destroyed after the investigation. 

http://www.bloomberglaw.com/public/document/In_re_GB_No_15CO531_2016_BL_167249_DC_May_26_2016_Court_Opinion 

Court Approves Suspicion-free DNA Testing of Officers.

It is reasonable, under the Fourth Amendment, to compel the collection of DNA from police officers in order to eliminate them as possible sources of crime scene contamination.

 

Bill v. Brewer, 2015 BL 280656, 9th Cir., No. 13-15844, 8/31/15

    The Ninth Circuit indicated that the effort to exclude the officers as contributors of DNA is justification enough to conduct buccal swabs. The opinion ruled that a specific warrant was not required because court orders satisfy the Fourth Amendment warrant requirement.

    The court determined that "excluding public safety personnel as the source of DNA would plainly 'aid in' the conviction of an eventual criminal defendant, by negating any contention at trial that police had contaminated the relevant evidence." This means that it did not matter that the plaintiffs in this case were police officers, and not suspects.

    The level of intrusion here is not disproportionate to the likely benefits. The court indicated that it was reasonable for the state to "ask sworn officers to provide saliva samples for the sole purpose of demonstrating that DNA left at a crime scene was not the result of inadvertent contamination by on-duty public safety personnel."

http://www2.bloomberglaw.com/public/desktop/document/Bill_v_Brewer_No_1315844_2015_BL_280656_9th_Cir_Aug_31_2015_Court