Leah Bartlam, Associate Member, University of Cincinnati Law Review
Since the first exoneration using DNA evidence in 1989, 551 wrongfully convicted people have been freed, and DNA testing has become widely accepted. In 1994, New York became the first state to enact a postconviction DNA law, ensuring that eligible convicted defendants could apply for DNA testing to prove their innocence. Since then, all fifty states have passed DNA access laws. Ohio implemented its postconviction DNA testing statute in 2003 and most recently amended it in 2010. Oklahoma, the last state to pass a such a law, enacted its Postconviction DNA Act in 2013. Despite Oklahoma’s delay in ensuring DNA access, its law contains some of the most effective postconviction DNA provisions in the country. Oklahoma’s postconviction law is simple, expansive, and closely conforms to the Innocence Project’s recommendations for DNA access laws. Ohio’s law, however, is complicated, limited in scope, and is in desperate need of further reform. Taking guidance from states with better DNA laws such as Oklahoma, Ohio must reform its postconviction DNA law to better provide for and protect DNA access.
Applicant eligibility is perhaps the most important component of DNA access laws. Currently, Ohio only accepts applications from people who were convicted of felonies and pleaded not guilty. In contrast, Oklahoma accepts applications from people who were convicted of a violent felony or who received a sentence of twenty-five years or more. More importantly, Oklahoma’s law specifies that applications are accepted from people who pleaded not guilty, guilty, or nolo contendere. People who confessed or admitted to crimes at any point in time and people who have already discharged their sentences may also apply for DNA testing. Oklahoma’s approach aligns with the principles outlined by the Innocence Project, which recommends allowing access to DNA testing even when petitioners are no longer incarcerated, pleaded guilty, or confessed. This provision is essential due to how often false confessions lead to wrongful convictions. According to the National Registry of Exonerations, at least 366 of the 2,944 exonerations since 1989 involved false confessions. Postconviction DNA testing laws are designed to provide opportunities to correct wrongful convictions, so they should account for the various contributing factors that lead to the convictions of innocent people.
Postconviction DNA testing applications may only be granted in Ohio if an exclusionary result would be outcome determinative when considered in light of all other available admissible evidence. This strict standard has led Ohio courts to incorrectly deny DNA testing applications on numerous occasions. Even more often, Ohio courts have properly denied DNA applications under O.R.C. § 2953.74 because there is no room in the statute for courts to consider the fact that juries are especially swayed by DNA evidence. Under the statute, for an application to be successful, a judge must weigh all the evidence and determine that a DNA test result would have definitively changed the outcome of the original trial, but the judge may not consider DNA evidence to be as important as a jury likely would. This standard requires courts to place themselves in the positions of the original factfinders at trial. While some DNA applications are considered by the original trial judges, others are not due to the ages of the cases. Currently, the year that the most exonerees in the United States were convicted in is 1994. On average, Ohio exonerees were incarcerated for 10.8 years. Ohio judges all serve six-year terms. Taken together, these statistics show the very real possibility of judges who did not preside over the original trials considering DNA applications.
Oklahoma’s standard for granting DNA applications is lower, giving courts more discretion. Oklahoma courts must only find a reasonable probability that applicants would not have been convicted had a favorable DNA result been presented at trial. Similarly, the Innocence Protection Act, a federal act which expands access to postconviction DNA testing, requires only that DNA evidence raise a reasonable probability that applicants are actually innocent. Senator Leahy, who introduced the Innocence Protection Act, explained why this standard was chosen:
Under section 3600, a court shall order DNA testing if it may produce new material evidence that would raise a reasonable probability that the applicant did not commit the offense. This standard was the subject of intense negotiations, as members recognized that setting the standard too low could invite frivolous applications, while setting it too high could defeat the purpose of the legislation and result in grave injustice. I argued that in balancing these concerns, Congress should be guided by the principle that the criminal justice system should err on the side of permitting testing, in light of the low cost of DNA testing and the high cost of keeping the wrong person locked up. I am pleased that this view ultimately prevailed.
Under Oklahoma’s statute, since a reasonable probability is sufficient, courts do not need to be certain that the DNA result would actually have resulted in an acquittal. Rather, courts can allow more uncertain applications to proceed and grant new trials if the DNA results are favorable to the applicants. A judge in Oklahoma has the freedom to grant an application based on the reasonable idea that the jury would have probably not convicted the defendant had DNA evidence been presented. This standard means that courts do not have to fully place themselves in the positions of the original factfinders, which is a difficult undertaking, and do not have to determine with certainty what a juror would think about a favorable DNA result.
Another problem with Ohio’s law is that it is complicated and difficult to understand. Ohio’s postconviction DNA testing definitions and requirements total approximately 7,500 words. In contrast, Oklahoma’s law is about 2,000 words. Most applicants proceed pro se and so may have more difficulty interpreting Ohio’s DNA law. This is not to suggest that DNA statutes should not be thorough in their explanations; however, unnecessary complications in DNA statutes inhibit the very people they are supposed to help. Although brief, Oklahoma’s law still sets forth every necessary explanation and requirement. It also explicitly gives courts the ability to refer pro se applicants to qualified parties such as indigent defense organizations or law school clinics. Data concerning the success rates of pro se litigants is difficult to find, but most sources agree that pro se litigants are usually unable to successfully navigate the justice system. Ohio’s law needs to be rewritten and restructured so that it is clear, concise, and easy for applicants to understand.
Compared to Ohio’s postconviction DNA statute, Oklahoma’s law is clearer, broader, and better aligned with policy concerns. Although Ohio did update its postconviction law in 2010, the past twelve years have demonstrated that wrongful convictions are an even bigger issue than the legislature in 2010 may have considered. By excluding petitioners who pleaded guilty or nolo contendere, Ohio’s current postconviction DNA testing law fails to recognize the number of innocent people who have falsely confessed. Further, the evidentiary standard imposed on eligible petitioners, rather than serving the interests of justice, serves to unnecessarily exclude applicants. Finally, the structure of Ohio’s law is overly complex and may present yet another barrier to pro se applicants. The time has come to update Ohio’s law to better serve the wrongfully convicted.
 Exonerations by Year: DNA and Non-DNA, National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/Exoneration-by-Year.aspx (last visited Jan. 31, 2022).
 Access to the Truth: New DNA Access Laws Take Root, Innocence Project (July 2, 2008), https://innocenceproject.org/access-to-the-truth-new-dna-access-laws-take-root/#:~:text=The%20first%20law%20was%20passed,grant%20DNA%20access%20to%20prisoners.
 Access to Post-Conviction DNA Testing, Innocence Project, https://innocenceproject.org/causes/access-post-conviction-dna-testing/ (last visited Jan. 28, 2022).
 Ohio, Innocence Project, https://innocenceproject.org/policy/ohio/ (last visited Jan. 28, 2022).
 Christopher Zoukis, Oklahoma’s DNA Law Means Post-Conviction Testing Available in All 50 States, Prison Legal News (Sept. 15, 2013), https://www.prisonlegalnews.org/news/2013/sep/15/oklahomas-dna-law-means-post-conviction-testing-available-in-all-50-states/#:~:text=On%20May%2024%2C%202013%2C%20Oklahoma,po
 Innocence Project, supra note 2. The Innocence Project is a national organization that litigates cases of people who have been wrongfully convicted, provides support for exonerees post-release, advocates for reform through new laws and policies, researches forensic science and causes of wrongful convictions, and educates the public about wrongful convictions. See About, Innocence Project, https://innocenceproject.org/about/ (last visited Jan. 31, 2022).
 O.R.C. § 2953.72(C).
 22 Okl. St. §1373.2(A).
 22 Okl. St. § 1373.2(A)(1)-(4).
 Innocence Project, supra note 2.
 % Exonerations by Contributing Factor, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx (last visited Jan. 28, 2022).
 O.R.C. § 2953.74(B)-(D).
 See generally State v. Ayers, 185 Ohio App. 3d 168 (2009), State v. Johnson, 14 N.E.3d 482 (2014).
 Kimberly Schweitzer and Narina Nunez, What Evidence Matters to Jurors? The Prevalence and Importance of Different Homicide Trial Evidence to Mock Jurors, Psychiatry, Psychology and Law (Mar. 15, 2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6818361/.
 Exonerations by Year of Conviction and Type of Crime, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/ExonerationConvictionYearCrimeType.aspx (last visited Jan. 31, 2022).
 Exonerations by State, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx (last visited Jan. 31, 2022).
 Judicial System Structure, The Supreme Court of Ohio, https://www.supremecourt.ohio.gov/judsystem/ (last visited Jan. 31, 2022).
 22 Okl. St. § 1373.4(A)(1).
 28 U.S.C.A. § 3600(a)(8)(B).
 150 Cong. Rec. 24,230 (2004).
 O.R.C. §§ 2953.71-2953.84.
 22 Okl. St. §§ 1373.1-1373.7.
 Just the Facts: Trends in Pro Se Civil Litigation from 2009 to 2019, United States Courts (Feb. 11, 2021), https://www.uscourts.gov/news/2021/02/11/just-facts-trends-pro-se-civil-litigation-2000-2019.
 22 Okl. St. § 1373.3.
 See Mitchell Levy, Comment, Empirical Patterns of Pro Se Litigation in Federal District Courts, 85 U. Chi. L. Rev. 1819 (2018); Stephan Landsman, The Growing Challenge of Pro Se Litigation, 13 Lewis & Clark L. Rev. 439 (2009); John Adkins, Supreme Court of Ohio, Rep. and Recommendations of the Task Force on Pro Se & Indigent Litigants (2006).