CRIMINAL LAW DNA TestingPosted by BS - 04/04/12 at 02:04 pm
Cookson v. State, 2011 ME 53, 17 A.3d 1208, Gorman, J.
In this post-conviction case, the defendant petitioned the Court for DNA testing of clothing which was allegedly discovered and turned over to the police two years after the crime by a person who had initially confessed to the crimes but was not called at trial. He later recanted his confession. An earlier motion for a new trial based in part on the person’s testimony was denied on the ground that it could reasonably have been discovered before or during the trial.
The Superior Court denied the motion for DNA testing in part because the defendant had failed to provide prima facie evidence of the chain of custody (according to Justice Alexander’s dissent). The Law Court vacated the denial of the motion principally on the basis that the Superior Court, according to the majority opinion, failed to make the fact findings required by the statute and appeared to decide the case strictly on a legal issue.
One point in footnote 6 to the opinion is that the prima facie requirement of the DNA statute and apparently in criminal cases generally is a lesser standard than the prima facie requirement regarding the burden of persuasion in civil matters. Under the DNA statute, prima facie evidence is only “some evidence” on every element of proof necessary to obtain the desired remedy.
Although the Court concluded that the Superior Court’s decision had to be remanded, it went on to “clarify the requirement of chain of custody.” The principal issue was that the clothing and evidence was not provided to the police until two years after the crime had been committed.
Although the rationale of the chain of custody requirement is only to assure that the evidence is what it purports to be, see M.R.Evid. 901, the Court concluded that “the temporal scope of chain of custody in this case includes the period of time before the police took possession of the clothing” because “the period of time after the commission of crimes up until [the discovery of the clothing] … presents a lengthy opportunity for contamination or tampering. It is therefore [the defendant’s] burden to account for the clothing’s chain of custody from the time of the murders to the present date.”
Justice Alexander dissented in a spirited opinion recounting the history of the case which, among other things, showed that the person who discovered the clothing was somewhat mentally challenged and probably very subject to the influence of the defendant. He also pointed out that, although the defendant’s team knew about the discoverer’s alleged confession before the trial was over, they did not put him on the stand but presented him as a witness in a motion for a new trial. According to Justice Alexander, this was a specific trial strategy, because the defense did not believe the witness to be credible. Justice Alexander also seemed to suggest that the Superior Court Justice who had made factual findings was also the trial judge.
Finally, Justice Alexander noted that the defendant had the burden to present prima facie evidence excluding tampering and of the integrity of the chain of custody, and since the record did not compel a finding that he met the burden, the Superior Court’s decision should have been affirmed.