A New Tool for Determining Factual Innocence: Massachusetts’ Post-Conviction Access to Forensic and Scientific Analysis

by David M. Siegel and Gregory I. Massing

Legal Analysis

Angel Hernandez spent thirteen years in Massachusetts prisons for a rape he did not commit.  He spent a decade of that time seeking DNA testing of evidence he was told was lost or unavailable, or was not subject to discovery through the procedure he was using, or that he had no right to test, or that he had waived the right to test.[1]  He ultimately obtained access to the evidence, and DNA testing fully exonerated him.  The ability of a wrongfully convicted criminal defendant to access evidence to prove it, and the obligation of the Commonwealth to keep that evidence, may seem utterly common sense – but they are now the law of the Commonwealth too.  On February 17, 2012, Governor Patrick signed the Post-Conviction Access to Forensic and Scientific Analysis Act, 2012 Mass. Acts, c. 38, which provides a statutory right for wrongfully convicted defendants to obtain access scientific and forensic analysis of evidence in their cases.  The Act, which becomes effective May 17, 2012, creates a comprehensive framework by which criminal defendants who have been found guilty may gain access to evidence and testing to support a claim that they are factually innocent.  The Act also requires for the first time in Massachusetts state-wide retention and preservation of evidence in criminal cases and provides for regulations in this area.  Although virtually every other state already provided this type of access, testing, and retention, the Act is among the most comprehensive in the country.  The saga of Angel Hernandez should not have to be repeated.

I. Background – the 2008-2009 BBA Task Force on Wrongful Convictions

In December 2009, a Boston Bar Association Task Force to Prevent Wrongful Convictions, composed of twenty-two members drawn from state and local police, prosecutors, public defenders, defense lawyers, forensic scientists and the judiciary released Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in MassachusettsAmong the Task Force’s specific recommendations was the following: “The legislature should enact and the Governor should sign into law a statute providing for post-conviction access to and testing of forensic evidence and biological material by defendants who claim factual innocence and for post-conviction retention of biological material.” Id. at 7. The report included a proposed bill as an appendix.

Bills providing for post-conviction forensic testing had been filed in the Massachusetts legislature almost every session following the 1999 Report of the U.S. Attorney General’s National Commission on the Future of DNA Evidence, but had languished in committee.  The Task Force’s recommended bill addressed what its members believed had prevented the prior bills’ passage: it provided a simpler, more streamlined procedure that did not attach the outcome of the testing to any legal effect on the underlying conviction.  Instead, it allowed only for access and testing.  The weight and significance to be attached to the results of the testing would be determined in separate proceedings, alleviating the need for the parties to argue about hypothetical results.

II. Eligibility and Motion

A.       Who May Seek Access to Scientific and Forensic Analysis

Anyone convicted of a crime or adjudicated a delinquent in a Massachusetts court may seek access to analysis, § 2(1), whether the conviction or adjudication was by trial, guilty plea or plea of nolo contendere, § 1 (definition of “conviction”), so long as the person is incarcerated in a prison or house of correction, on parole or probation, or has his liberty otherwise restrained due to such conviction, § 2(2), and he asserts that he is factually innocent of the offense. § 2(3).  (Citations refer to sections of chapter 278A of the Massachusetts General Laws, added by the Act.)  Arguably eligibility to file a motion under chapter 278A would also extend to those whose liberty is restricted by being required to register as a sex offender.  See Doe v. Sex Offender Registry Bd., 447 Mass.768, 775 (2006) (“In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.”).  The right afforded by the Act to seek analysis may not be waived under any conditions, whether in a plea agreement, sentencing, appeal or any correctional status, § 15, but the person seeking access and the Commonwealth are free to agree on other procedures. § 2.

B. How Do Persons Seek Access to Scientific and Forensic Analysis?

A person seeks analysis by filing a motion, in the trial court of the original conviction, with the same case name and docket number as the conviction, § 3(a), a copy of which must also be served on the prosecutor. § 4(a).  The Act does not specify what types of forensic or scientific analysis may be available, except that the requested analysis must produce evidence that is admissible in courts of the Commonwealth. § 3(b)(2).  It is not limited, for example, toDNA testing.

1. Requirements for Motion for Access to Analysis

Requirements for a motion for access to analysis are in Section 3 of Chapter 278A.  The movant must set forth, § 3(b)(1)-(5):

  • the type of scientific or forensic analysis sought,
  • that the results of such testing or analysis are admissible inMassachusettscourts,
  • a description of the evidence to be tested, including its location if known and chain of custody,
  • information “demonstrating that the analysis has the potential to result in information that is material to the movant’s identification as the perpetrator of the crime,” and
  • information showing that the evidence has not been subjected to the analysis for some reason beyond the movant’s control.

Although the Act does not explicitly state this, the items to be tested need not have been formally offered into, or admitted as, evidence in the case, as the Act specifically provides for access to analysis in cases for which no evidence will have been admitted (guilty or nolo contendere pleas) and of items that are in the possession of third parties, including specifically “items and biological materials.” § 7(c).

2. Required Evidentiary Significance of the Analysis Sought

The probative value of the analysis sought must simply be that it “has the potential to result in information that is material to the movant’s identification as the perpetrator of the crime.”  To grant the motion, the Court must find this potential by a preponderance of the evidence. § 7(b)(4).  This is a less-demanding standard than the standard for discovery under Rule 30 of the Massachusetts Rules of Criminal Procedure, although it applies only in the limited context of the perpetrator’s identification.  Rule 30(c)(4) provides a judge may authorize discovery “where affidavits filed by the moving party establish a prima facie case for relief.”  The Supreme Judicial Court has explained, in Commonwealth v. Daniels, 445 Mass. 392, 407 (2005), that the “prima facie case” in this context means a case sufficiently strong to go to the jury:

In requesting such discovery, the defendant must make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial.  See Reporter’s Notes, supra (“Discovery is appropriate where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he or she is entitled to relief”).

Unlike the standard for discovery under Rule 30(c)(4), a motion under the Act need not show that it is “reasonably likely” to result in information but only that it “has the potential” to do so.  The focus of this information, however, must be narrower than that it “might warrant grant of a new trial”; instead it must be “material to the movant’s identification as the perpetrator.”

3. Cause for Seeking Post-Conviction Analysis

A movant must set forth cause for not having previously sought or obtained the requested forensic or scientific analysis.  The Act offers six possible grounds (§§ 3(b)(5)(i)-(v)):

  • the analysis had not been developed at the time of the conviction,
  • results of the analysis were not yet admissible inMassachusettscourts,
  • the defense was not aware of the material and had no reason to be aware of it at the time,
  • the movant’s lawyer had been ineffective by not seeking analysis,
  • the movant had been denied the analysis by the trial court, or
  • the “catch-all” that the material was otherwise unavailable to the movant at the time.

To the extent that a movant cannot include any of the information necessary to satisfy the requirements of the Act, the movant must include a description of efforts to obtain the information and can then seek discovery. § 3(c).

The Act makes clear that an otherwise eligible movant may not be denied analysis because he plead guilty or nolo contendere, or because he made or is alleged to have made an incriminating statement. § 3(d).  This provision was included in recognition of the fact that in a significant proportion of exonerations, defendants have falsely confessed to crimes they did not commit.[2]  A movant must file an affidavit that he is seeking the requested testing because he is factually innocent, that the testing or analysis will support this claim and, if he pled guilty or made an incriminating statement, that his motion is made notwithstanding his having entered the guilty plea and/or made the incriminating statement. Id.

III. Procedure

A.       Threshold Determination

The Act provides that the trial court shall “expeditiously review” motions to determine whether the movant has satisfied the initial requirements for access to analysis. § 3(e).  This threshold determination is not intended to be dispositive but to ensure that sufficient information is provided for the Commonwealth to assess the motion and for the Court to conduct a meaningful hearing.  Motions that do not satisfy the initial requirements of Section 3 may be dismissed without prejudice (and without a hearing). Id.  At this point, the Court’s determination is simply “whether the motion is sufficient to proceed under this chapter or is dismissed.” Id.  The Court must notify the movant and the prosecutor of its threshold decision. Id.

B. Response by Commonwealth

The prosecutor may, but need not, respond to the motion to “assist the court in considering whether the motion meets the requirement under this section.”  If the Court finds that the motion satisfies the threshold requirements of Section 3, the prosecutor then has sixty days to respond, which may be enlarged for good cause. § 4(b).  This is also an opportunity for the prosecutor to raise “any specific legal or factual objections” to the analysis sought. § 4(c).  The prosecutor is required to notify the victim of the filing of a motion for analysis. § 14(a).

C. Appointment of Counsel and Costs

The court may appoint counsel to represent indigent movants in preparing and presenting motions for access. § 5.  If analysis is ordered, the costs of analysis are to be paid by the movant if he or she is not indigent (as defined for appointment of counsel purposes), as an extra fee or cost if the movant is indigent, and to the “maximum feasible amount” given the financial resources of the movant “as the court deems equitable” if the movant is indigent but has the ability to pay a reduced fee. § 10(1)-(3).

D. Discovery

The Act provides that the Court may authorize discovery, as provided in Rule 30(c)(4) of the Massachusetts Rules of Criminal Procedure, at the request of either party, from either party or any third party. § 7(c).  Discovery may be necessary, for example, because the movant lacks information concerning the location, existence or chain of custody of items sought to be analyzed.  The prosecutor might seek biological material from the movant (i.e., the defendant’s DNA sample for comparison) or from the victim of the crime – for example, test results that exclude the defendant may not be probative of his innocence if the biological material belongs to the victim.  The movant is specifically obligated to cooperate with analysis ordered, including by providing biological samples, and unreasonable failure to do so may result in dismissal of the motion with prejudice. § 8(f).

Note that discovery under the Act, although it uses the mechanism of Rule 30(c)(4), may not be conditioned upon “establishment of a prima facie case.” § 7(c).  In other words, substantial, even overwhelming, evidence of guilt, should not impede the movant’s ability to discover information needed for the requested analysis if the analysis has the potential to result in evidence that is material to the moving party’s identification as the perpetrator.

E. Hearing

If the movant satisfies the threshold requirements for filing, a hearing is mandatory. § 6(a).  The movant must be present for this hearing unless he waives his presence. Id. Contrast this with Rule 30(c)(3) & (6), Massachusetts Rules of Criminal Procedure, which permit a judge to rule on post-conviction motions on affidavits without a hearing or at a hearing without the movant’s presence.

The judge who conducted the trial or accepted the movant’s pleas “shall conduct the hearing if possible.” § 6(b).  This parallels the practice under Rule 30 of having the trial judge hear the post-conviction motion in the first instance for reasons of efficiency given familiarity with the case.  However, this very familiarity could introduce bias, and thus the Reporter’s Notes to Rule 30 provide that “[r]ecusal of the trial judge should be liberally exercised, particularly where it is requested by the moving party.”[3]  A similar risk may exist with motions for access under the Act.

F. Judicial Determination

The judge must permit the requested analysis if he or she concludes that each of the threshold requirements in section 3 has been established by a preponderance of the evidence. § 7(b).  That is, the Court must find, under §§ 7(b)(1)-(6):

  • the evidence or biological material exists,
  • it has been subject “to a chain of custody that is sufficient to establish that it has not deteriorated, been substituted, tampered with, replaced, handled or altered such that the results of the requested analysis would lack any probative value,”
  • it has not been subject to the requested analysis for any of the reasons identified as permissible cause,
  • the requested analysis has the potential to result in evidence that is material to the moving party’s identification as the perpetrator,”
  • the motion’s purpose is not obstruction of justice or delay, and
  • the results of the requested analysis are admissible inMassachusettscourts.

The court must state its findings of fact and conclusions of law on the record or issue written findings. § 7(a).  An order allowing or denying a motion for analysis is a final appealable order, and the party appealing must do so within thirty days of the order’s entry. § 18. (The appeal provision states that a notice of appeal shall be filed “within 30 days after the entry of the judgment,” although presumably “judgment” refers to the order denying the requested analysis.)  If a court allows a motion for analysis, the prosecutor must notify the victims, including anyone who suffered direct or threatened physical, emotional or financial harm, as well as the parent, guardian or representative of such a person if the victim was a minor or has died. § 14(b), § 1 (definition of “victim”).

G. Procedure for Forensic or Scientific Analysis

The judge who allows a motion for analysis also specifies the conditions under which it occurs, including transportation and handling of the evidence or biological material to protect its integrity. § 8(a).  The parties may agree on any accredited testing facility, which may be the Massachusetts State Police Crime Laboratory or the Boston Police Crime Laboratory (unless the analysis will exhaust the material and prevent replicate testing). § 8(b).  If the parties are unable to agree, the Act sets forth a procedure by which each side provides a list of up to three facilities, from which the court selects one. § 8(c).

Exhaustive testing may not be done except upon a “specific order of the court.”  Upon request, the court may order that representatives be permitted to observe exhaustive testing procedures, unless this conflicts with laboratory practices. § 8(e).

The process for obtaining forensic or scientific analysis is intended to illuminate the state of the evidence rather than afford either side adversarial advantage; thus, each side is given equal access to all personnel, documents and reports of the testing facility. § 8(d).  Similarly, all results of analyses are simultaneously disclosed to the movant, the prosecutor and the court. § 12(a).  If the results are inconclusive, the court may order additional analysis if it concludes the original requirements for testing are still met. § 13.  Presumably this will most often turn on whether the additional analysis has the potential to result in evidence material to the movant’s identification as the perpetrator.

IV. Conclusion

The Act improves the accuracy of the criminal justice system in two ways.  By establishing a process for defendants who claim wrongful conviction to get testing that can show error in their cases, it enables efficient examination of claims of factual error.  This helps ensure past cases have been solved correctly.  By creating an obligation for the Commonwealth to retain and preserve material from criminal investigations, it provides a tool to help solve future cases, and prevent future potential errors, as techniques of forensic and scientific analysis improve.  This helps ensure future cases will be solved and increases the likelihood they will be solved correctly.  In the Fall 2012 edition of the Boston Bar Journal, we will review the state’s retention and preservation obligations, and suggest how policies to implement these obligations might be developed.


[1]Commonwealth v. Hernandez, 50 Mass.App.Ct. 1109, 738 N.E.2d 1166 (2000) (unpublished opinion).

[2]Samuel R. Gross et. al., Exonerations in the United States 1989 Through 2003, 95 J.  Crim. L. & Criminol. 523, 544 (2005) (15% of exonerations between 1989 and 2003, 51 out of 340, involved false confessions).

[3] Par. 2, Reporter’s Notes to Rule 30, Massachusetts Rules of Criminal Procedure.

David M. Siegel is a Professor of Law at New England Law | Boston specializing in Criminal Law, Criminal Procedure and Evidence.

Gregory I. Massing is Executive Director of the Rappaport Center for Law and Public Service at Suffolk University Law School. He was General Counsel of the Massachusetts Executive Office of Public Safety from 2007 through 2011.

(The authors were members of the Boston Bar Association’s 2008-2009 Task Force to Prevent Wrongful Convictions. The opinions expressed here are those of the authors and do not represent those of the Task Force, its members or the BBA.) 


3 Comments on “A New Tool for Determining Factual Innocence: Massachusetts’ Post-Conviction Access to Forensic and Scientific Analysis”

  1. [...] to forensic and scientific evidence in their case.  To read more about the new law check out this article by Professor David Siegel of New England Law | Boston and Gregory Massing, Executive Director of [...]

  2. [...] Greg’s article — A New Tool for Determining Factual Innocence: Massachusetts’ Post-Conviction Access to Forensic and Scientific Analysis — was published on May 16, 2012.  To read the full article, go here. [...]

  3. [...] to evidence and forensic testing to support a claim of factual innocence.  In our article in the Summer 2012 edition of the BBJ, we outlined the new procedure for defendants to seek this access and for judges to evaluate these [...]


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