The Phillips & Associates Oklahoma Law Blog


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By Dustin Phillips on
November 2, 2013
January 26, 2022

On November 1 each year, many laws enacted by the Oklahoma legislature in the spring take effect. Today, some 240 new laws become effective, including laws regarding abortion for minors, the cost of drivers' licenses, the establishment of horse slaughterhouses, and the use of surveillance cameras in nursing homes.

One law of particular interest to those wrongfully convicted of crimes is House Bill 1068. This law allows access to post-conviction DNA testing for certain convicted felons as a means of attempting to prove their innocence. Prior to today, Oklahoma was the only state that did not offer such a remedy to convicted persons.The Innocence Project is an organization that describes itself as "a national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system to prevent future injustice."

The Innocence Project argues that post-conviction DNA testing is imperative for allowing those wrongfully convicted of crimes to prove their innocence, and they list the reasons why post-conviction DNA testing should be allowed:"Despite its ability to prove innocence, some courts will not consider newly discovered DNA evidence after trial.

  • The traditional appeals process is often insufficient for proving a wrongful conviction. It is not uncommon for an innocent person to exhaust all possible appeals without being allowed access to the DNA evidence in his case.
  • Sometimes it comes to light that DNA evidence available at the time of the defendant's trial was never tested.
  • The only way a person can access the DNA evidence associated with his criminal case, absent a protracted legal battle, is through post-conviction DNA testing access statutes."

Not everyone in Oklahoma is eligible to receive post-conviction DNA testing, however. The law limits such testing to those who have been sentenced to 25 years or more in prison for conviction of a violent felony. The Innocence Project points to this as one of the flaws of existing post-conviction DNA testing laws, but in becoming the last state to allow such laws, Oklahoma is at least making a step in the right direction to remedy miscarriages of justice.

The Postconviction DNA Testing Act is codified in 22 O.S.§ 1373 of the Oklahoma statutes. Section 1373.2 defines who may petition for post-conviction DNA testing:"A. Notwithstanding any other provision of law concerning post-conviction relief, a person convicted of a violent felony crime or who has received a sentence of twenty-five (25) years or more and who asserts that he or she did not commit such crime may file a motion in the sentencing court requesting forensic DNA testing of any biological material secured in the investigation or prosecution attendant to the challenged conviction. Persons eligible for testing shall include any and all of the following:

  1. Persons currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration;
  2. Persons convicted on a plea of not guilty, guilty or nolo contendere;
  3. Persons deemed to have provided a confession or admission related to the crime, either before or after conviction of the crime; and
  4. Persons who have discharged the sentence for which the person was convicted.

B. A convicted person may request forensic DNA testing of any biological material secured in the investigation or prosecution attendant to the conviction that:

  1. Was not previously subjected to DNA testing; or
  2. Although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous DNA test."

Not everyone who petitions for post-conviction DNA testing may be granted his or her request. Section 1373.4 describes the conditions under which such forensic testing may be allowed:"A. After the motion requesting forensic DNA testing and subsequent response have been filed, the sentencing court shall hold a hearing to determine whether DNA forensic testing will be ordered. A court shall order DNA testing only if the court finds:

  1. A reasonable probability that the petitioner would not have been convicted if favorable results had been obtained through DNA testing at the time of the original prosecution;
  2. The request for DNA testing is made to demonstrate the innocence of the convicted person and is not made to unreasonably delay the execution of the sentence or the administration of justice;
  3. One or more of the items of evidence the convicted person seeks to have tested still exists;
  4. The evidence to be tested was secured in relation to the challenged conviction and either was not previously subject to DNA testing or, if previously tested for DNA, the evidence can be subjected to additional DNA testing that will provide a reasonable likelihood of more probative results; and
  5. The chain of custody of the evidence to be tested is sufficient to establish that the evidence has not been substituted, tampered with, replaced or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence. For purposes of this act, evidence that has been in the custody of law enforcement, other government officials or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement of this subsection absent specific evidence of material tampering, replacement or alteration."

Now that the Post-conviction DNA Testing Act has taken effect, those who have been wrongfully convicted of crimes have the opportunity to prove their innocence through forensic evidence previously denied them.  Contact us to find out more about the post-conviction DNA Testing Act or to find a criminal appeals lawyer who can represent you in your case.


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