Why are DNA Databases Available to Prosecutors but not Defense Attorneys?

By Matt Bewig | AllGov | January 8, 2013

Hundreds and perhaps thousands of prisoners behind bars for crimes they did not commit could prove their innocence with relative ease—if only prosecutors would let them. Although the American criminal justice system purports to create a level playing field, for example by requiring prosecutors to share relevant information with defense lawyers, only prosecutors have access to the DNA databases that more than 300 former prisoners have used to prove their innocence since 1989.

Operated and maintained by the FBI, the federal Combined DNA Index System (CODIS) database contains data regarding 10 million offenders and 1.3 million arrestees, and is growing at an accelerating rate. At present, however, prosecutors have an iron grip on CODIS and only nine states—Colorado, Georgia, Illinois, Maryland, Mississippi, New York, North Carolina, Ohio and Texas—have laws granting defendants access to DNA databases.

According to defense attorneys and civil libertarians, legal reforms are needed to make the DNA databases equally available to defense lawyers. Steven Benjamin, president of the National Association of Criminal Defense Lawyers, called it “a national problem, a huge and recurring one,” because “juries expect the defense to be able to prove that if your client didn’t do it, who did? Science doesn’t belong to the government, but they act like it does. Unless the defense is given access to this information, the playing field remains uneven in criminal justice.”

Even some prosecutors say they agree: “We, as law enforcement and prosecutors, are obligated to seek the truth and follow the evidence, and DNA should be entered into CODIS,” said Scott Burns, executive director of the National District Attorneys Association. “It seems like there should be laws for it, and I agree that the defense should be given the information.”

“You’d think there would be a federal rule or a statute in every state creating the clear obligation to do a CODIS search in any case where the defense wants it,” said Brandon L. Garrett, a professor of law at the University of Virginia.

However, as Garrett has also pointed out, when it comes to prisoners challenging their convictions, prosecutors “are attached to their convictions, and they don’t want to see their work called into question.”

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• Another False Confession Cleared by DNA (deafinprison.wordpress.com)
• Rapid DNA: Coming Soon to a Police Department or Immigration Office Near You (informationliberation.com)