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Innocence Project Northwest Clinic--50-State Surveys

Updated Oct. 20, 2014.
Prepared by Cheryl Nyberg.

This guide is part of a series for students in Prof. Jackie McMurtrie's Innocence Project Northwest Clinic. Companion guides include:

Access to HeinOnline and LexisNexis Academic are UW restricted. LexisNexis and Westlaw require individual users to have their own IDs or passwords.

Sources identifying and comparing the states' laws on topics relating to postconviction procedures are often helpful. Cheryl Nyberg's annual bibliography series--Subject Compilations of State Laws--is the most efficient tool to use to locate relevant 50-state surveys. HeinOnline & KF1.S93, last three years at Reference Office, previous volumes at Reference Area


Best Overall Sources

Donald E. Wilkes, Jr., State Postconviction Remedies and Relief Handbook, with Forms. 2006 ed., 3 vols.
KF9690.Z95W54 2005 at Classified Stacks
Covers DNA testing, erroneous convictions, grounds for relief, right to counsel, statutes of limitations, writs of habeas corpus, and related issues. Includes citations to codes, court rules, and cases. Covers all 50 states.

National Conference of State Legislatures, Forensic Science Laws Database
Includes nine charts identifying state laws on subject such as accreditation of forensic labs, DNA collection from arrestees and offenders, eyewitness identification procedures, and postconviction DNA testing. Also searchable by individual state.

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Specific Topics

Follow the LexisNexis and Westlaw links to retrieve the text of the articles, which usually link the statutory citations in the footnotes to the statutory text available elsewhere on the vendor's website. The Westlaw versions offer an additional advantage of providing selected legislative history documents. Links from the Bluebook citations go to free sources of the articles.

Actual Innocence Claims

John M. Leventhal, A Survey of Federal and State Courts' Approaches to a Constitutional Right of Actual Innocence: Is There a Need for a State Constitutional Right in New York in the Aftermath of CPL § 440.10(G-1)?, 76 Albany L. Rev. 1453 (2012-13). Lexis | Westlaw

Pp. 1488-1515, "Appendix." Summaries. Cites to codes, court rules, and cases. Covers clear and convincing evidence of actual innocence, DNA testing, habeas relief, newly discovered evidence, postconviction remedies, and related topics.

DNA Evidence & Postconviction Testing

Collecting DNA at Arrest: Policies, Practices, and Implications. Final Technical Report. Urban Institute, 2013.

"Appendix C: State Arrestee DNA Laws." Charts. No citations. Covers expungement (by request, conditions, notification, and timeline); law enforcement entities responsible for collection; offender characteristics (age, criminal history, and health); proceeding speed requirements; qualifying offenses (all or some felonies and misdemeanors); use of reasonable force when arrestee refuses collection; and when DNA is collected and analyzed (after arrest or after charging). Includes twenty-eight states.

Justin Brooks & Alexander Simpson, Blood Sugar Sex Magik: A Review of Postconviction DNA Testing Statutes and Legislative Recommendations, 59 Drake L. Rev. 799 (2011). Lexis | Westlaw

Essay. Cites to codes in footnotes. Covers laws on postconviction DNA testing, including appointment of counsel, availability of testing for inmates who confessed or plead guilty or for inmates who are no longer incarcerated but who are subject to restrictions such as sex offender registration, evidence preservation and penalties for violating preservation requirements, exculpatory results, financial responsibility, reasonable probabilities, testing by state or private laboratories, the underlying offense (felonies or any crime), time limits, where the identity of the perpetrator was an issue, and whether DNA testing motions may be appealed.

Kathleen Callahan, In Limbo: In re Davis and the Future of Herrera Innocence Claims in Federal Habeas Proceedings, 53 Ariz. L. Rev. 629 (2011). Lexis | Westlaw

P. 632, fn. 19. Citations only. Cites to codes. Covers the forty-eight states that have laws providing "inmates with post-conviction access to possibly exonerating DNA evidence."

DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues. Congressional Research Service, 2011.

Pp. 16-17, fns. 110-11. Citations only. Cites to codes. Covers laws on post-conviction DNA testing (fn. 110) and the thirty-seven states that have laws on the "preservation of evidence after someone is convicted" (fn. 111).

Pp. 42-44, "Appendix. State DNA Database Laws." Chart. No citations. Covers qualifying offenses, including felonies (all, juvenile adjudication, and jail and probation); misdemeanors (sex crimes and other crimes); and arrestees for burglary, all felonies, murder, or sex crimes. Current as of Sept. 2010.

State Court Organization 2004, 5th ed.

Pp. 203-06, "Table 36. DNA Evidence: Post-Conviction Analysis." Table. Cites to bills, session laws, and codes. Covers criminal, felony, and other crimes for which relief may be sought; length of time biological evidence must be preserved; standard for granting DNA testing; and time limit for relief.

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Expert Testimony & Witnesses

Weinstein's Federal Evidence, 2d ed. 6 vols. Looseleaf. 1997-date. Lexis & KF8935.W39 1997 at Reference Area

Vol. 6 includes "Table of State and Military Adaptations of Federal Rules of Evidence." Rule-by-rule, identifies state evidence rules identical or similar to the federal rules for the 42 states (including Puerto Rico) that have evidence rules based on the FRE (excluding California, Connecticut, the District of Columbia, Georgia, Illinois, Kansas, Massachusetts, Missouri, New York, Virginia, and the Virgin Islands).

Justin B. Shane, Money Talks: An Indigent Defendant's Right to an Ex Parte Hearing for Expert Funding, 17 Cap. Def. J. 347 (2005). HeinOnline | Westlaw

P. 357, fn. 82. Citations only. Cites to codes and court rules. Covers the fourteen states that have capital punishment laws and that "provide defendants with at least a partial right to apply ex parte for expert assistance."

Carlton Bailey, Ake v. Oklahoma and an Indigent Defendant's "Right" to an Expert Witness: A Promise Denied or Imagined?, 10 Wm. & Mary Bill of Rts. J. 401 (2002). HeinOnline | Lexis | Westlaw

P. 457, fn. 535. Citations only. Cites to codes. Covers laws on indigent defendant's access to expert witnesses.

Amber J. McGraw, Life, But Not Liberty? An Assessment of Noncapital Indigent Defendants' Rights to Expert Assistance under the Ake v. Oklahoma Doctrine, 79 Wash. U. L. Q. 951 (2001). HeinOnline | Lexis | Westlaw

Pp. 965-66, fns. 90-93. Summaries. Cites to codes, court rules, and cases. Covers laws providing expert assistance to indigent defendants.

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Habeas Corpus

Nathan Andrew Preuss, Habeas Corpus: A Legal Research Guide (2011). KF241.C75P74 2011 at Classified Stacks & HeinOnline (UW Restricted)

Pp. 91-149, "Appendix B—States Habeas Corpus." Citations only. Cites to constitutions, codes, and court rules.

Brief of Amici Curiae Innocence Project and Innocence Network. Swearingen v. Thaler, No. 09-70036 (April 26, 2010).

Pp. 12-13, fn. 6. Citations only. Cites to codes, court rules, and cases. Covers the nineteen states that have laws recognizing "freestanding claims of actual innocence based on newly-discovered evidence as a basis for habeas relief." Note: Submitted to the U.S. Court of Appeals, 5th Circuit. Available on Westlaw (2010 WL 5306521).

Right to Counsel

Brief for the States of Wisconsin, Alabama, Colorado, Delaware, Hawaii, Idaho, Indiana, Louisiana, Maine, Maryland, Montana, Nebraska, New Mexico, North Dakota, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wyoming, as Amici Curiae Supporting Respondent. Martinez v. Ryan, No. 10-1001 (Sept. 13, 2011).

Pp. 26-29, fns. 13, 14, and 16. Citations only. Cites to codes, court rules, and cases. Covers appointment of counsel in postconviction cases. Note: Submitted to the U.S. Supreme Court. Available on LexisNexis (2010 U.S. Briefs 1001; 2011 U.S. S. Ct. Briefs LEXIS 1264) and Westlaw (2011 WL 4072899).

Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Petitioner. Maples v. Thomas, No. 10-63 (May 25, 2011).

Pp. A-1 to A-4, "Appendix, Survey of State Provision of Counsel for Indigent Death-Sentenced Prisoners in State Post Conviction Proceedings." Table. Cites to codes, court rules, and cases. Covers the right to counsel before or after filing of postconviction petitions. Note: Submitted to the U.S. Supreme Court. Available on LexisNexis (2010 U.S. Briefs 63; 2011 U.S. S. Ct. Briefs LEXIS 544) and Westlaw (2011 WL 2132706).

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Statutes of Limitations

Brief Amicus Curiae of the Habeas Corpus Resource Center in Support of Respondent. Walker v. Martin, No. 09-996 (Oct. 2010).

Pp. 12-14, fns. 7-15. Citations only. Cites to codes, court rules, and cases. Covers "deadlines for filing for post-conviction relief in non-capital cases."

Note: Submitted to the U.S. Supreme Court. Available on LexisNexis (2009 U.S. Briefs 996; 2010 U.S. S. Ct. Briefs LEXIS 1991) and Westlaw (2010 WL 4278489).

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Wrongful Imprisonment / Conviction

Meghan J. Ryan,  Remedying Wrongful Execution, 45 U. Mich. J. L. Reform 261 (2012). HeinOnline |

Pp. 310-13, "Appendix." Summaries. Cites to codes. Covers the twenty-eight states that have laws providing some form of compensation for wrongful conviction and imprisonment. Includes U.S.

Brief of Amicus Curiae. Drumgold v. Massachusetts, S.J.C. No. 10616, and Guzman v. Massachusetts, S.J.C. No. 10563 (March 31, 2010).

Pp. 13-14, fns. 9 and 10. Citations only. Cites to codes. Covers the twenty-eight states that have laws "providing compensation for the erroneously convicted." Prepared by the New England Innocence Project. Note: Submitted to the Massachusetts Supreme Judicial Court. Available on Westlaw (2010 WL 1556533).

Daniel S. Kahn, Presumed Guilty Until Proven Innocent: The Burden of Proof in Wrongful Conviction Claims under State Compensation Statutes, 44 U. Mich. J.L. Reform 123 (2010). LexisNexis | Westlaw

Pp. 137-45. Essay. Cites to session laws and codes in footnotes. Covers wrongful conviction compensation law provisions on caps on damage recovery, disqualification, eligibility, and statutes of limitations.

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