Any person convicted of a felony may move the Circuit Court for a scientific investigation of newly discovered or previously untested human biological evidence under Virginia Code § 19.2-327.1.  As of July 1, 2020, post-conviction testing can be performed by DFS or an accredited private laboratory.   The Department’s forensic scientists are available to discuss the considered testing in advance of the entry of an order by the Court, including whether DFS is able to perform the testing sought.

Please consider these factors regarding the Department’s ability to successfully comply with the Court’s Order:

Is the evidence in the custody of a law enforcement agency?

The order should designate a law enforcement agency to properly package, transport, and submit the evidence to the Department.

If the evidence is in the custody of the Clerk of the Circuit Court, the investigating law enforcement agency should be ordered to collect the evidence from the Clerk’s Office and preserve, package and submit the evidence to the Department.  Clerks are not as familiar with the proper preservation and packaging of evidence to preserve potential DNA evidence and the process for submitting evidence to the Department.  Clerks typically appreciate the assistance of law enforcement with this process.

Has any other analysis already been performed on the item of evidence?

Once certain analyses have been conducted on an item of evidence, the Department may not recommend further analyses be conducted.  For example, the Department’s procedures require that an item of evidence be examined first for DNA before it is the subject of any other forensic examination.  Accordingly, if drug evidence has already been examined by the Controlled Substances Section, the Department does not recommend a DNA examination be conducted because the item of evidence has not been handled in a fashion to preserve potential DNA evidence and has been potentially compromised.

Was the item of evidence handled during the trial in a manner that compromised the evidence?

If counsel opened the packaging and handled the evidence during the trial, it has been compromised for any DNA examination.

Is the requested scientific analysis within the Department’s scope of accreditation?

The Department will not conduct a scientific investigation that is beyond its accreditation scope or for which it does not have a validated procedure.  Please contact the Department to determine whether it is able to conduct the requested scientific investigation before having the Court enter such an order.

Are any known or reference samples required to be submitted with the evidence for the particular analysis requested?

For DNA examinations, the Department must have any necessary reference DNA samples submitted for comparisons.  Obtaining known or reference samples can be difficult with an incarcerated individual and may require coordination between corrections officials, counsel, and Department Counsel.  Under current National DNA Index System (NDIS) procedures, the Department may not utilize Data Bank samples as reference samples for comparisons.  Appropriate suspect sample(s) and any required elimination samples must be submitted for the completion of the examination.

The Department will move to have a Court reconsider any order that requires the Department to upload and search a developed DNA profile against the Data Bank that is not eligible for upload and searching under the National DNA Index System (NDIS) Operational Procedures Manual.  Failure of the Department to follow the NDIS guidelines could result in a matched profile being removed from the national database and cause the Department to violate its Memorandum of Understanding that permits its participation in the Combined DNA Index System (CODIS).

Does the order provide for the transfer and return of evidence to the Department by the law enforcement agency?

Without an order to do so (and being provided a copy of that order), the local law enforcement agency will not be aware of the need to transfer the evidence to DFS.

If there are any concerns with the order issued by a court and the Department’s ability to comply, Department Counsel will discuss those concerns with the requesting attorney.  If unable to reach an agreement regarding the order, Department Counsel will notify the court of the Department’s concerns, and the Office of the Attorney General may file a motion with the court to reconsider the order.

Once the examination is completed, pursuant to the statute, the results of the analysis (the Department’s Certificate of Analysis) are furnished simultaneously to the court, the petitioner and his attorney of record, and the attorney for the Commonwealth.

If the post-conviction testing is to be performed by an accredited private laboratory, DFS is able to transfer evidence stored under a long-term storage order (see Virginia Code § 19.2-270.4:1) via commercial shipping company.   DFS should only play a role in the process if the evidence is stored at the Department at the time of the post-conviction testing order.  The order should require that the accredited private laboratory maintain the original evidence item numbers so that the chain of custody for the evidence is preserved.  Once testing is completed, the evidence may be returned to DFS for continued storage under the long-term storage order.

DFS is not able to interpret the results generated by another laboratory as our forensic scientists would not be familiar with another lab’s processes and procedures.