Attorney General Issues Memoranda to Improve Use of DNA Evidence

WASHINGTON – Attorney General Eric Holder issued two memoranda today – on the collection of DNA evidence and the use of DNA waivers when defendants plead guilty – to ensure the Department of Justice uses DNA evidence to the greatest extent possible to convict the guilty and exonerate the innocent.

The memorandum on sample collection provides guidance concerning the requirements and procedures for DNA sample collection, the treatment of cases in which DNA has not been collected from a defendant prior to his appearance in court, and the status of and response to litigative challenges to DNA sample collection. It notes that the regular collection of DNA samples from federal arrestees must be a priority, as DNA provides a powerful tool in the enforcement of federal and state criminal laws and the administration of justice.

The memorandum on the use of DNA waivers establishes as general department policy that prosecutors will not require as part of plea agreements that defendants waive their rights to testing under the Innocence Protection Act. Under exceptional circumstances, prosecutors may obtain such waivers.

"DNA evidence is one of the most powerful tools available to the criminal justice system, and these new steps will ensure the department can use DNA to the greatest extent possible to solve crimes and ensure the guilty are convicted," Attorney General Holder said. "Improving both the collection and the use of DNA evidence will help law enforcement and prosecutors keep communities safe."

Congress enacted the Innocence Protection Act in 2004 to allow convicted individuals access to DNA testing if they met certain conditions such as the possibility that testing could produce new material evidence that would raise a reasonable probability that the individual did not commit the offense. Among other restrictions, it limits new testing to evidence that was not previously tested and generally requires it to be done within 36 months of conviction.

Federal law since 2004 has also required the collection of DNA samples from most persons convicted of federal crimes, and regulations implemented by the department in January, 2009 extended DNA collection to include arrestees and defendants in federal jurisdiction.