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

Thursday, July 05, 2012

By David M. Siegel and Gregory I. Massing

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.

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