The question of how to have forensic evidence tested or re-tested by an independent laboratory comes up in my case consultations. This post will outline the general process of requesting that evidence be independently tested in a court-appointed case, and I am happy to talk with attorneys about their specific cases and help weigh the pros and cons of having evidence independently tested.
- Determine the physical location of the evidence. If the evidence has already been tested by the state, it likely has been returned to the submitting law enforcement agency, unless it is a blood sample in a toxicology case.
- Identify a lab that can conduct the testing. Counsel can call me for help with this (919-354-7217). Counsel should speak with the lab to determine what test will be performed, the cost of testing, specific instructions for how the evidence should be shipped to the lab, a timeline for completion of testing, and information about how results are reported and what data is provided to counsel.
- Request funding authorization for the independent testing/flat fee services for appointed cases. This sample motion can be adapted.
- Make a motion for the evidence to be transferred to the independent lab. This sample motion can be adapted. Specify in the motion any packaging/shipping instructions that were provided by the independent lab. Counsel should discuss shipping instructions with the custodian of the evidence before an order is entered to ensure it is possible to comply with what counsel is requesting.
- Arrange for shipment of the item of evidence and as instructed by the lab using a trackable carrier, like FedEx or UPS and provide shipping instructions to the evidence custodian.
Prior to seeking independent testing, counsel should weigh the pros and cons of having an independent expert review testing data generated by the crime lab versus having independent testing completed. This determination will be case-specific, but counsel should consider the reliability of the lab that performed the original testing, what tests have been performed, what additional testing is available, whether additional testing would support the theory of the case, and whether a challenge to the state’s testing may be more effective than additional testing. Counsel will also want to consider the confidentiality of the testing. Though the defense is entitled to have evidence confidentially evaluated by an independent expert (see this blog post for more), in practice the state will be aware that the defense has had some testing performed because they will be aware that the evidence has been transferred to the custody of an independent lab. As always, I am available to consult with counsel on the forensic evidence in their indigent cases. Email is a great way to set up a consult (firstname.lastname@example.org).