COMMENT:PRESERVING DUE PROCESS: VIOLATIONS OF THE WISCONSIN

DNA EVIDENCE PRESERVATION STATUTES AS PER SE VIOLATIONS OF

THE FOURTEENTH AMENDMENT
2004

Reporter
2004 Wis. L. Rev. 1245 *

Length: 20834 words

Author: Nathan T. Kipp*

* B.A. in Political Science and History, with Comprehensive Honors, University of Wisconsin, 2001; J.D., University
of Wisconsin Law School, Class of 2005. I would like to thank Professors Keith Findley and John Pray for their
guidance and insight on this topic, along with Mike Gallagher and Eric Barber for their helpful suggestions on early
drafts of this Comment. I would be remiss if I did not acknowledge Laura Schulteis and Laura Dickman for their
impeccable editing. Of course, any errors that remain are mine. I would also like to thank my family and friends who
have tolerated me throughout the past two-and-one-half years. To my Mom: for being there whenever I need help.
To my Dad: for relentlessly taking an interest in my mundane life. To Bryce: for reminding me that I do not need to
always talk about the law. To my friends and most respected colleagues - Mariam, Tim, Theresa, the Lauras, Bill,
Arman, Ameen, Kristine, William, Pablo, Josh, and everyone else: for sharing in our successes, for helping each
other cope with our failures, and for putting up with my self-centered tendencies. To all: I sincerely thank you.

Text

[*1245]

Introduction

For the past three years, Wisconsin has been at the forefront of utilizing DNA technology to prove the actual
innocence 1 of wrongly convicted individuals. In January of 2001, the Wisconsin Innocence Project - a clinical
program at the University of Wisconsin Law School's Frank J. Remington Center - worked to prove the innocence of
Christopher Ochoa, an inmate incarcerated in Texas for raping and murdering a twenty-year-old woman. 2 Ochoa,
who originally confessed [*1246] to the crime after detectives threatened him with the death penalty during
protracted interrogations, was released after twelve years in prison when DNA testing on biological evidence taken

1 The term "actual innocence" defines a circumstance in which "a person did not perpetrate the crime(s) or any lesser included
offense(s) at issue in a given case"; simply put, "that the convicted person did not commit the crime for which she or he has
been convicted." See, e.g., Michael J. Saks et al., Model Prevention and Remedy of Erroneous Convictions Act, 33 Ariz. St. L.J.
665, 672, 677, 708 (2001) (presenting, for consideration, a model act "governing the reform of investigative and trial procedures
in order to reduce the risk of, and to provide remedies for, erroneous convictions). This is opposed to "legal innocence," which
describes a circumstance "in which a person who participated in a crime was charged incorrectly with the [crime]," but still may
be convicted of a lesser offense or a completely different crime. See Jim Dwyer, Peter Neufeld, & Barry Scheck, Actual
Innocence: When Justice Goes Wrong and How to Make It Right 288 (2003).
2 David Hafetz, His Name Cleared, Ochoa Marks Independence Day: Focus Turns to System That Wrongly Jailed Him for
Slaying, Austin Am.-Statesman, Jan. 17, 2001, at A1.
 Page 2 of 32
2004 Wis. L. Rev. 1245, *1246

from the crime scene proved both that he was innocent and that another man was responsible for the rape and
murder. 3

On September 11, 2003, the Wisconsin Innocence Project successfully utilized DNA technology to exonerate
Steven Avery, a Wisconsin inmate incarcerated for a sexual assault eighteen years earlier. 4 Avery's innocence
was conclusively proven after DNA testing on a hair preserved in the rape kit taken at the time of the attack both
excluded Avery from being a perpetrator of the sexual assault and implicated the true perpetrator of the crime. 5

The exonerations of Ochoa and Avery are remarkable testaments to the power DNA technology holds in the
criminal justice system. What makes these stories even more remarkable is the pure fortuity that the evidence that
proved the innocence of Ochoa and Avery was even available or, for that matter, was preserved by the law
enforcement agencies overseeing their cases. 6 Unfortunately, the availability of exculpatory DNA evidence is more
the exception than the rule: "in over half the cases nationwide where postconviction DNA testing might have [been
utilized to prove] a claim of innocence … the government had destroyed the evidence." 7

Wisconsin has recognized that the power of DNA evidence exists only if the biological evidence is properly
preserved and available for testing. To this end, in 2001, the Wisconsin legislature enacted several DNA evidence
preservation statutes. 8 In cases where state law [*1247] enforcement agents collect biological material in the
course of a criminal investigation that results in a conviction, the statutes place an affirmative duty on the state to
preserve the evidence until those convicted are discharged from the custody of the state. 9 The preservation of
biological evidence in turn ensures that future DNA testing can occur if deemed necessary according to Wisconsin
law.

While the DNA evidence preservation statutes comprehensively detail how state law enforcement agencies must
preserve biological evidence, they are all silent in one substantial regard. The DNA evidence preservation statutes
do not provide a remedy for convicted individuals in the event of violations of the statutes. The lack of remedy for

3 See id.
4 See Tom Kertscher, Wrongly Convicted of Sexual Assault, Steven Avery Tastes His First Freedom in More than 17 Years,
Milwaukee J. Sentinel, Sept. 12, 2003, at 1A.
5 Id.
6 See Samara Kalk, An Innocent Man Says Thanks, Cap. Times, Mar. 2, 2001, at 3A (quoting Mr. Christopher Ochoa's attorney,
John Pray, as stating Ochoa's case was "miraculous," in part, because the DNA evidence from the original trial had been
preserved); Susanne Quick, Science Held Key to Avery's Release, Milwaukee J. Sentinel, Sept. 13, 2003, at 8A (stating that
DNA testing is unavailable in cases where biological evidence was preserved incorrectly or destroyed, and that Mr. Steven
Avery's case was exceptional for the fact that the evidence was preserved and available for testing).
7 Keith A. Findley, Re-Imagining Justice, 12 Wis. Defender 11, 12 (2004) [hereinafter Findley, Re-Imagining Justice].
8 Wis. Stat. 165.81, 757.54, 968.205, 978.08 (2001-2002). While the statutes are individually tailored toward specific law
enforcement agencies, they each provide for the following:

if physical evidence that is in the possession of [a state law enforcement agency] includes any biological material that was
collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or
commitment under s. 971.17 or 980.06, the [state law enforcement agency] shall preserve the physical evidence until every
person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.
Id.
9 Id. 165.81(3)(b) (extending the duty to preserve biological evidence to state crime laboratories); id. 757.54(2)(b) (extending the
duty to preserve biological evidence to circuit courts); id. 968.205(2) (extending the duty to preserve biological evidence to all
law enforcement agencies); id. 978.08(2) (extending the duty to preserve biological evidence to district attorneys).
 Page 3 of 32
2004 Wis. L. Rev. 1245, *1247

the destruction of biological evidence is particularly troublesome in cases where the identity of the perpetrator was
an issue that the prosecution proved in order to obtain the conviction. 10

The statutes' silence as to available remedies for their violation means that fashioning a remedy will be left to the
courts - an action which Wisconsin courts have yet to take. 11 When fashioning a remedy, courts may address the
question of whether the violation of a DNA evidence preservation statute constitutes a denial of due process of law
because of the state's involvement in the destruction of the evidence. 12 Indeed, speculation has already arisen
over whether violations of the DNA evidence preservation statutes implicate the Due Process Clause of the
Fourteenth Amendment when the perpetrator's identity was an issue [*1248] at trial. 13 This speculation has
focused on the evidence preservation doctrines announced by the U.S. Supreme Court in California v. Trombetta
14 and Arizona v. Youngblood. 15

Taken together, Trombetta and Youngblood comprise the line of constitutional jurisprudence that outlines the extent
of the government's duty to preserve evidence. 16 In each case, the U.S. Supreme Court formulated a test to
determine whether the destruction of evidence violated a criminal defendant's due process rights. 17 Each test
differs slightly. The Trombetta test focuses on the probative value of the destroyed evidence and whether the
evidence possessed exculpatory value that was apparent before its destruction. 18 In contrast, the Youngblood test
largely forsakes the examination of the probative value of the evidence in lieu of examining the government's
actions in the circumstances that led to the destruction of evidence. 19 If a criminal defendant can satisfy the
requirements of either the Trombetta or Youngblood tests, then a court will declare the destruction of evidence a
violation of due process, and reverse the defendant's conviction. 20

As the Trombetta and Youngblood tests specifically address the destruction of evidence, the tests appear to be the
ideal method to fashion a remedy for a convicted individual for violations of the DNA evidence preservation statutes.
Applying the Trombetta and Youngblood tests in this context, however, yields a surprising result. Specifically, this
Comment argues that the plain language of the DNA evidence preservation statutes and Wisconsin case law

10 Please note that the analysis of this Comment is limited to violations of the DNA evidence preservation statutes in cases
where identity of the perpetrator was an issue at trial. The analysis presented here is not intended to extend to instances where
identity was stipulated to at trial.
11 As of this writing, no Wisconsin court has addressed a violation of Wisconsin's DNA preservation statutes. Moreover, there is
no published opinion from any jurisdiction in the nation in which a court addresses fashioning a remedy for incarcerated
individuals upon violations of DNA evidence preservation statutes.
12 The Fourteenth Amendment of the U.S. Constitution reads:

no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
U.S. Const. amend. XIV, 1.
13 See Keith A. Findley, New Laws Reflect the Power and Potential of DNA, 75 Wis. Law., May 2002, at 20, 23, 57 [hereinafter
Findley, Power and Potential of DNA] (suggesting the possibility that Wisconsin courts may look to California v. Trombetta and
Arizona v. Youngblood to fashion a remedy for violations of the DNA evidence preservation statutes).
14 467 U.S. 479 (1984).
15 488 U.S. 51 (1988).
16 Youngblood, 488 U.S. at 56-58; Trombetta, 467 U.S. at 488-90.
17 Youngblood, 488 U.S. at 56-58; Trombetta, 467 U.S. at 488-90.
18 467 U.S. at 488-90.
19 488 U.S. at 56-58.
20 See Youngblood, 488 U.S. at 54; Trombetta, 467 U.S. at 484.
 Page 4 of 32
2004 Wis. L. Rev. 1245, *1248

modify the factual analysis utilized under the Trombetta and Youngblood tests in order to accommodate the legal
presumptions created by the DNA evidence statutes. Under this modified analysis, every violation of the DNA
evidence preservation statutes also constitutes a violation of the convicted individual's due process rights. The
resulting remedy is, in accordance with Trombetta and Youngblood, reversal of the conviction whenever one of the
statutes is violated. As the reversal of conviction would occur every time any law enforcement agent fails to
preserve any piece of biological evidence covered by the statute, and regardless of the [*1249] guilt or innocence
of the convicted individual, the per se due process remedy is a result that is simply unacceptable.

Part I begins this argument by presenting the provisions of the DNA evidence preservation statutes. It also briefly
summarizes the provisions of the statutory counterpart to the DNA evidence preservation statutes, section 974.07,
which guarantees postconviction DNA testing when a convicted individual can demonstrate its necessity. When
section 974.07 and the DNA evidence preservation statutes are viewed in conjunction, they represent a positive
right for a convicted individual to have his or her evidence preserved by the state and tested under certain
circumstances.

Part I also explores the lack of guidance regarding the appropriate remedy for convicted individuals upon violations
of the DNA evidence preservation statutes. Both the legislative history of Wisconsin's DNA evidence preservation
statutes and similar statutes from other jurisdictions are silent regarding the remedies for their violation. Due to the
lack of established law in other jurisdictions regarding violations of DNA evidence preservation statutes, Wisconsin
courts should turn to federal and state due process jurisprudence for guidance when fashioning a remedy.

Part II analyzes the federal due process jurisprudence regarding the state's duty to preserve evidence, the resulting
evidence preservation doctrines, and the Wisconsin courts' adoption of those doctrines. First, the current evidence
preservation doctrines established in Trombetta and Youngblood are summarized. This Part then examines
Wisconsin courts' adoption of Trombetta and Youngblood, paying close attention to the fact that, under Wisconsin
law, whether courts choose to employ the Trombetta or Youngblood test depends on the level of exculpatory value
of the destroyed evidence. Moreover, Wisconsin courts' extension of the Trombetta and Youngblood tests to
address postconviction destruction of evidence suggests that the doctrines are viable tools to address violations of
Wisconsin's DNA evidence preservation statutes.

Part III examines the implications of utilizing Trombetta and Youngblood to fashion remedies for convicted
individuals for violations of the DNA evidence preservation statutes. This Part suggests that the purpose of the DNA
evidence preservation statutes and section 974.07 creates three presumptions regarding the materiality of the
evidence covered by the statutes, exculpatory value of the evidence covered by the statutes, and the circumstances
surrounding state law enforcement agencies' violations of the statutes. These presumptions dictate the factual
analyses of both the Youngblood and Trombetta tests. This, in turn, leads the due process analysis to the
conclusion that every violation of the DNA evidence preservation statutes constitutes a per se violation of the
convicted individual's due process rights.

[*1250] Part IV examines the likely reactions to the per se due process violation in determining that it is an
unacceptable remedy. Simply put, the per se due process violation is a flawed and extreme remedy that contradicts
many policies underlying postconviction litigation, and as such, Wisconsin courts probably will not adopt it. Despite
this fact, the per se due process violation is nonetheless supported by compelling arguments, creating a policy
debate over the propriety of the remedy. As the flawed remedy and resulting debate is of the Wisconsin legislature's
own doing through its failure to provide a remedies section in the first place, the legislature should reexamine the
DNA evidence preservation statutes and state what remedies, if any, are afforded to convicted individuals in the
event of the statutes' violations.

I. Wisconsin's DNA Evidence Preservation Statutes: Their Provisions, Attendant Rights, and Silence Regarding
Available Remedies

A. The State's Affirmative Duty to Preserve Biological Evidence Under Wisconsin Law
 Page 5 of 32
2004 Wis. L. Rev. 1245, *1250

The Wisconsin legislature passed Wisconsin's DNA evidence preservation statutes as part of the Wisconsin State
2001-2002 biennium budget. 21 Effective on September 1, 2001, the statutes make biological evidence
preservation mandatory. 22 Codified in several parts of the criminal code, the DNA evidence preservation statutes
create the duty to preserve all "biological material that was collected in connection with a criminal investigation that
resulted in a criminal conviction." 23 The duty to preserve extends to all state law enforcement agencies, 24
including district attorneys' offices, 25 state crime laboratories, 26 and circuit courts. 27 The duty to preserve also
applies to all biological material that was already in law enforcement agencies' possession at the time of the law's
effective date of September 1, 2001. 28

[*1251] The duty to preserve biological evidence is not limited to situations where there is a criminal conviction. 29
The duty also applies to delinquency adjudications, 30 commitments for individuals found not guilty by reason of
mental disease or defect, 31 and commitments for individuals determined to be sexually violent. 32

Yet, the state's duty to preserve is not perpetual. The duty to preserve exists only until the discharge 33 of the
individuals convicted, adjudicated or committed from the custody of the Wisconsin Department of Corrections. 34
Moreover, the DNA evidence preservation statutes allow the state to destroy evidence before the discharge date
upon meeting the following requirements. 35 First, the state must send "a notice of its intent to destroy the
biological material to all persons who remain in custody as a result of the criminal conviction, delinquency
adjudication, or commitment," to either that individual, that individual's attorney of record or to the state public
defender. 36 The notice must "clearly inform the recipient that the biological material will be destroyed" unless,
within ninety days, the person receiving the notice either files a motion for DNA testing or submits a written request
to preserve the biological material. 37 The state may destroy the evidence only if the parties notified do not request
testing or continued preservation, and if no other federal or state law requires the preservation of the biological
material. 38 If, however, within ninety days the state receives a written request to preserve the evidence, or if a

21 See 2001 Wis. Act 16, 4031s.

22 Wis. Stat. 165.81(3)(b), 757.54(2)(b), 968.205(2), 978.08(2). This Comment interprets "preserve" as meaning to make
evidence available for later DNA testing under section 974.07 of the Wisconsin Statutes. This would mean that if biological
evidence covered by the statutes was destroyed or lost, the state failed to preserve evidence, and therefore violated the
statutes.
23Id. 165.81(3)(b), 968.205(2), 978.08(2); see also id. 757.54(2)(b) (statute creates duty to preserve "biological material that
was collected in connection with the action or proceeding").
24 Id. 968.205(2).
25 Id. 978.08(2).
26 Id. 165.81(3)(b).
27 Id. 757.54(2)(b).
28 See 2001 Wis. Act 16, 4031s.
29 Please note that, for simplicity's sake, this Comment will utilize the term "convicted individual" to refer to each of these
categories of adjudicated individuals.
30 Wis. Stat. 165.81(3)(b), 757.54(2)(b), 968.205(2), 978.08(2).
31 Id. 165.81(3)(b), 757.54(2)(b), 968.205(2), 978.08(2); see also id. 971.17.
32 Id. 165.81(3)(b), 757.54(2)(b), 968.205(2), 978.08(2); see also id. 980.06.
33 Discharge date" is defined as:
 Page 6 of 32
2004 Wis. L. Rev. 1245, *1251

court orders the continued preservation of the evidence, the evidence [*1252] must be preserved until the
convicted individual is discharged or until the court orders the destruction of the evidence. 39

While the DNA evidence preservation statutes detail the extent of the state's duty to preserve evidence, they are
remarkably silent as to what remedies are available to convicted individuals in the event of the statutes' violation. 40
Since a violation will likely harm the convicted individual associated with the destroyed evidence, this silence is
especially notable. 41 The relationship the DNA evidence preservation statutes have with Wisconsin Statutes
section 974.07 demonstrates how a violation of the DNA evidence preservation statutes harms a convicted
individual.

B. Wisconsin's Postconviction DNA Testing Statute: Section 974.07

An in-depth analysis of section 974.07 is beyond the scope of this Comment. 42 However, it is important to
summarize the statute's provisions because section 974.07 works in conjunction with the DNA evidence
preservation statutes to create a right for a convicted individual to have all biological evidence related to his or her
case both preserved and perhaps even tested. 43 Specifically, the DNA evidence preservation statutes do not
merely require preservation of evidence relevant to a convicted individual's conviction; the statutes preserve a
convicted individual's ability to request DNA testing according to section 974.07. 44 A violation of the DNA evidence
preservation statutes thus denies a convicted individual his or her right to request DNA testing, and possibly the
chance to prove his or her innocence.

Section 974.07 states that a convicted individual qualifies to request postconviction DNA testing if he or she
demonstrates that the evidence in question satisfies certain criteria. 45 First, the evidence must be relevant to the
investigation that eventually resulted in the conviction. 46 [*1253] Second, the evidence must be in the "actual or
constructive possession of a government agency." 47 Third, testing of the evidence must not have previously
occurred. 48 If testing did occur previously, the convicted individual may still be eligible for testing if current testing

the date on which a person is released or discharged from custody that resulted from a criminal action, a delinquency
proceeding under ch. 938, or a commitment proceeding under s. 971.17 or ch. 980 or, if the person is serving consecutive
sentences of imprisonment, the date on which the person is released or discharged from custody under all of the sentences.
Id. 968.205(1)(b); see also id. 165.81(3)(a)2., 757.54(2)(a)2., 978.08(1)(b) (""Discharge date' has the meaning given in s.
968.205(1)(b).").
34 Id. 165.81(3)(b), 757.54(2)(b), 968.205(2), 978.08(2).
35 Id. 165.81(3)(c), 757.54(2)(c), 968.205(3), 978.08(3).
36 Id. 165.81(3)(c)1., 968.205(3)(a), 978.08(3)(a); see also id. 757.54(2)(c)1. (requirement that notice must be sent "to all
persons who remain in custody as a result of the criminal action, delinquency proceeding, or commitment").
37 Id. 165.81(3)(d), 757.54(2)(d), 968.205(4), 978.08(4).
38 Id. 165.81(3)(c)2., 757.54(2)(c)2., 968.205(3)(b), 978.08(3)(b).
39 Id. 165.81(3)(e), 757.54(2)(e), 968.205(5), 978.08(5).
40 See id. 165.81, 757.54, 968.205, 978.08.
41See Diana L. Kanon, Will the Truth Set Them Free? No, but the Lab Might: Statutory Responses to Advancements in DNA
Technology, 44 Ariz. L. Rev. 467, 492 (2002) (stating that statutes that provide nothing more than criminal sanctions for the
destruction of DNA evidence are of "no help to the defendant").
42For an in-depth analysis of section 974.07, see Findley, Re-Imagining Justice, supra note 7, at 12, and Findley, Power and
Potential of DNA, supra note 13, at 23, 57-61.
43 See infra Part I.C.
44 See Wis. Stat. 165.81(3)(c)-(d), 757.54(2)(c)-(d), 968.205(3)-(4), 978.08(3)-(4).
45 Id. 974.07(2).
 Page 7 of 32
2004 Wis. L. Rev. 1245, *1253

utilizes a scientific technique that was not previously available or that was not previously utilized. 49 The new
method of testing must also provide a reasonable likelihood of more accurate and probative results. 50

Once these criteria are satisfied, section 974.07 further defines when postconviction DNA testing must occur and
when a court may exercise its discretion to order testing. 51 Testing is mandatory when the convicted individual
demonstrates three additional facts. 52 First, the individual must claim that he or she is innocent of the offense for
which he or she was convicted. 53 Second, the individual must demonstrate that it is reasonably probable that he or
she would not have been prosecuted and convicted had the exculpatory DNA testing results been available before
his or her prosecution. 54 Finally, the individual must demonstrate that "the chain of custody of the evidence to be
tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect." 55 If
the chain of custody cannot prove the integrity of the evidence, the court can still grant testing if the movant can
demonstrate that "the testing itself can establish the integrity of the evidence." 56

The lack of a convicted individuals' claim of actual innocence will not automatically preclude the availability of court-
ordered DNA testing. 57 Courts have the discretion to order testing if the individual can demonstrate that it is
reasonably probable that the outcome of the proceedings that resulted in the conviction, or the terms of the
sentence or commitment, would have been more favorable to him or her had the results of the testing been
available before prosecution. 58 Also, the convicted individual must demonstrate that "the chain of custody of the
evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any
material respect." 59 Like mandatory [*1254] testing, if the chain of custody cannot prove the integrity of the
evidence, the court may grant testing if the convicted individual can demonstrate that "the testing itself can establish
the integrity of the evidence." 60

C. The Right to DNA Preservation and Testing Under the DNA Evidence Preservation Statutes and Section 974.07

When viewed together, the DNA evidence preservation statutes and section 974.07 place an affirmative duty on
the government to preserve and, in certain circumstances, test biological evidence that was collected in connection
with a criminal prosecution. 61 The natural implication of this duty is that these statutes create a right for convicted

46 Id. 974.07(2)(a).
47 Id. 974.07(2)(b).
48 Id. 974.07(2)(c).
49 Id.
50 Id.
51 Id. 974.07(7).
52 Id. 974.07(7)(a).
53 Id. 974.07(7)(a)1.
54 Id. 974.07(7)(a)2.
55 Id. 974.07(7)(a)4.
56 Id.
57 Id. 974.07(7)(b).
58 Id. 974.07(7)(b)1.
59 Id. 974.07(7)(b)3. Evidence must also satisfy the conditions presented in section 974.07(2)(a)-(c). Id. 974.07(7)(b)2.
60 Id. 974.07(7)(b)3.
61 See supra Parts I.A-B.
 Page 8 of 32
2004 Wis. L. Rev. 1245, *1254

individuals to have all biological evidence that was collected in conjunction with his or her prosecution preserved
and, if the requirements of section 974.07 are met, tested. 62

The common definition of a right is a privilege in which the government has a duty to ensure that its citizens have
the ability to enjoy without impediment. 63 A hallmark of a right is when the government utilizes its collective
resources to defend that privilege. 64 As such, rights can be ascertained through judicial interpretation of a
[*1255] government's constitution or laws, 65 or they can be developed through the government's law-making
body. 66

The DNA preservation statutes and section 974.07 explicitly outline the right to DNA preservation and testing.
However, the right to test exists only if no violation of the right to DNA preservation occurs. In other words, if the
state fails to shoulder the burden of providing the right to DNA preservation in accordance with the DNA evidence
preservation statutes, the right to testing cannot exist because the biological evidence cannot be tested. Therefore,
the DNA evidence preservation statutes mandate that the state has a duty to ensure that convicted individuals not
only enjoy the right to biological evidence preservation, but also may possibly enjoy the right to postconviction DNA
testing under section 974.07. 67

D. Searching for Guidance: The Silence of the Legislative History of the DNA Preservation Statutes and the Lack of
Guidance from Other Jurisdictions

Because the DNA evidence preservation statutes are silent as to what remedies apply if the state violates the
statutes, courts will have to determine what the proper remedies are. Indeed, courts in Wisconsin have a
constitutional duty to fashion a remedy in the event of a violation of the DNA evidence preservation statutes. Article
I, Section 9 of the Wisconsin Constitution states:

every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his
person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely
and without denial, promptly and without delay, conformably to the laws. 68

The Wisconsin Supreme Court has consistently held that Article I, Section 9 authorizes courts to fashion adequate
remedies that provide due process when a statute does not specify a remedy. 69

62 See supra Parts I.A-B; see also Stephen Holmes & Cass R. Sunstein, The Cost of Rights 17 (1999) (stating "an interest
qualifies as a right when an effective legal system treats it as such by using collective resources to defend it"); Jenna
MacNaughton, Comment, Positive Rights in Constitutional Law: No Need to Graft, Best Not to Prune, 3 U. Pa. J. Const. L. 750,
750 (2001) (defining positive rights as rights in which the "government has an affirmative duty" to ensure that its citizens enjoy);
c.f. Frank B. Cross, The Error of Positive Rights, 48 UCLA L. Rev. 857, 861 (2001) ("The notion of positive statutory rights is
utterly unexceptionable. There is an indisputable statutory right to receive payments under the Earned Income Tax Credit, for
example, assuming one meets the statutory conditions and at least until its statutory authority is revoked.") (footnotes omitted);
Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 Val. U. L. Rev. 359, 370 (1988) (arguing that "if a claim, reasonable
though it may be, cannot be defined and enforced in a court of law … then it is not a real right").
63See, e.g., Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271, 2272 (1990) (stating that it is the
government's duty "to refrain from acts that deprive citizens of protected rights"); MacNaughton, supra note 62, at 750.
64 Holmes & Sunstein, supra note 62, at 17.
65 See MacNaughton, supra note 62, at 752 (suggesting that judicial interpretations of the U.S. Constitution "are equally as
plausible and legitimate as a strict negative rights view, if not more so").
66 See Cross, supra note 62, at 861.
67 See MacNaughton, supra note 62, at 750.
68 Wis. Const. art. I, 9.
69See, e.g., Collins v. Eli Lilly Co., 116 Wis. 2d 166, 182, 342 N.W.2d 37, 45 (1984); State ex rel. Wickham v. Nygaard, 159
Wis. 396, 400, 150 N.W. 513, 514-15 (1915).
 Page 9 of 32
2004 Wis. L. Rev. 1245, *1255

However, Wisconsin courts will be left with little guidance when developing a remedy for violations of the DNA
evidence preservation [*1256] statutes. There is no evidence that the Wisconsin legislature considered remedies
when taking up the passage of the statutes. The drafting records of the statutes do not indicate that any draft of the
statutes contemplated a section detailing remedies for convicted individuals. 70 E-mails placed in the public record
regarding the drafting of the statutes likewise demonstrate that the drafters were not openly considering a remedies
section. 71 Rather, the e-mails illustrate that the drafters were concerned only with constitutional issues unrelated
to the statutes' violation. 72

Unfortunately, other jurisdictions also offer little guidance with regard to appropriate remedies for violations of the
DNA evidence preservation statutes. To date, in addition to Wisconsin, twenty-one states and the District of
Columbia have enacted a variety of DNA evidence preservation statutes. 73 Similar to Wisconsin's preservation
[*1257] statutes, none of the twenty-two laws specify what remedy is available to the convicted individual upon
violation of the statute. 74

One must note, however, that statutes from four jurisdictions do contain some type of provision addressing the
consequences of violating the preservation statute: Arizona, Arkansas, the District of Columbia, and Maine. 75
However, these provisions create only criminal sanctions for failing to preserve evidence, and they do not provide
specific remedies for convicted individuals. 76 The Arizona, Arkansas, and District of Columbia statutes merely
create a criminal sanction against the individual who destroys the evidence. 77 The Maine statute states [*1258]
only that a court "may impose appropriate sanctions" in the event of the statutes' violation. 78

Likewise, the Innocence Protection Act of 2003, 79 which is currently pending in the U.S. Congress, does not
provide any guidance. 80 Like Wisconsin's DNA evidence preservation statutes, the Innocence Protection Act of
2003 mandates the preservation of all evidence that could be subjected to DNA testing that is secured in the course
of a prosecution of a federal crime. 81 The duty to preserve also lasts for the period that any person convicted

70See 2001 S. 55, S. Substitute Amend. 1, Caucus S. Amend., 2001-2002 Leg., Reg. Sess. (Wis. 2001) (on file with author);
2001 Assemb. 291, Assemb. Amend. 2 (Wis. 2001) (on file with author).
71 See e-mail from Monica Burkert-Brist, Wisconsin Department of Justice, to Cory Mason, Government Relations Coordinator,
State Bar of Wisconsin, and Tanya Bjork, Wisconsin Legislature (July 12, 2001, 16:56 CST) (on file with author); e-mail from
Paul Onsager, Legislative Fiscal Bureau, to Robin Ryan (July 17, 2001, 16:54 CST) (on file with author); e-mail from Robin
Ryan, to Cory Mason, Government Relations Coordinator, State Bar of Wisconsin (July 18, 2001, 11:50 CST) (on file with
author).
72 The e-mails discuss the concern over whether the right to a new trial created under section 974.07 would raise confusion
about the "prevailing case law that circumvents the statutory one-year statute of limitation" under section 974.06 of the
Wisconsin Statutes because of the discovery of new evidence. See e-mail from Monica Burkert-Brist, Wisconsin Department of
Justice, to Cory Mason, Government Relations Coordinator, State Bar of Wisconsin, and Tanya Bjork, Wisconsin Legislature
(July 12, 2001, 16:56 CST) (on file with author); e-mail from Paul Onsager, Legislative Fiscal Bureau, to Robin Ryan (July 17,
2001, 16:54 CST) (on file with author); see also e-mail from Robin Ryan, to Cory Mason, Government Relations Coordinator,
State Bar of Wisconsin (July 18, 2001, 11:50 CST) (on file with author). The prevailing case law referred to in the e-mail is State
v. Bembenek, 140 Wis. 2d 248, 251-52, 409 N.W.2d 432, 433-34 (Ct. App. 1987). Bembenek held that a new trial may be
granted under section 974.06 if ""there has been such a denial or infringement of the constitutional rights of the prisoner as to
render the judgment vulnerable to collateral attack.'" 140 Wis. 2d at 251, 409 N.W.2d at 433 (quoting section 974.06(3)(d)).
Specifically, Bembenek held that, in some cases, due process requires permitting motions on newly discovered evidence even
after the one-year statute of limitation. Id. at 252, 409 N.W.2d at 434.
73 See Ariz. Rev. Stat. Ann. 13-4240(H) (West 2001); Ark. Code Ann. 12-12-104 (Lexis 2003); Cal. Penal Code 1417.9 (West
Supp. 2004); Conn. Gen. Stat. Ann. 54-102i (West Supp. 2004); D.C. Code Ann. 22-4134 (Supp. 2004); Ga. Code Ann. 17-5-56
(2004); 725 Ill. Comp. Stat. Ann. 5/116-4 (West 2002 & Supp. 2004); Kan. Stat. Ann. 21-2512(b)(2) (Supp. 2003); La. Code
Crim. Proc. Ann. art. 926.1(F)-(H) (West Supp. 2004); Me. Rev. Stat. Ann. tit. 15, 2138(2) (West 2003); Md. Code Ann., Crim.
Proc. 8-201(i) (Supp. 2003); Mich. Comp. Laws Ann. 770.16(11) (West Supp. 2004); Minn. Stat. Ann. 299C.155(2)-(3) (West
1999); Neb. Rev. Stat. Ann. 29-4125 (Lexis 2003); N.M. Stat. Ann. 31-1A-2(A), (F), (L), (M) (Michie 2004); N.C. Gen. Stat. Ann.
15A-268 (Lexis 2003); Okla. Stat. Ann. tit. 22, 1372 (West 2003); R.I. Gen. Laws 10-9.1-11 (Supp. 2003); Tenn. Code Ann. 38-6-
 Page 10 of 32
2004 Wis. L. Rev. 1245, *1258

remains incarcerated. 82 Also like the Wisconsin statutes, the Act does not provide a remedy for convicted
individuals when the government fails to preserve the evidence. 83

Due to the lack of guidance from the Wisconsin legislature and other jurisdictions, Wisconsin courts are left to rely
on federal and state constitutional jurisprudence for guidance on how to address violations of the DNA evidence
preservation statutes. 84 Specifically, because a [*1259] violation of the DNA evidence preservation statutes
involves the destruction of evidence that was in the possession of the state, Wisconsin courts should turn to the
evidence preservation doctrines that the U.S. Supreme Court formulated from the Due Process Clause of the
Fourteenth Amendment.

II. Constitutional Provisions Regarding the Preservation of Evidence: The Origins, Current Doctrines, and Adoption
by Wisconsin Courts in State v. Greenwold and State v. Parker.

The state's duty to preserve evidence in accordance with the Due Process Clause has its origins in the cases
Brady v. Maryland 85 and United States v. Agurs, 86 in which the U.S. Supreme Court held that criminal
defendants have the right to access all evidence favorable to him or her via the state's duty to disclose the
evidence. However, the Court has also held that the state's duty to preserve evidence must be considerably
narrower than the duty to disclose evidence. 87 Specifically, the state's duty to preserve evidence must be limited
because of the inherent difficulty of ascertaining the importance of evidence that no longer exists, as opposed to
being merely withheld by the prosecution. 88 [*1260] In recognition of this difficulty, the Court has formulated a
series of tests defining when the Due Process Clause mandates preservation. The Court announced these tests in
Trombetta 89 and Youngblood. 90 If a criminal defendant can prove that the government failed either of these tests,
then a court will declare the destruction of evidence a violation of due process, and reverse the defendant's
conviction. 91

113 (2003); Tex. Crim. Proc. Code Ann. 38.39 (Vernon Supp. 2004-2005); Va. Code Ann. 19.2-270.4:1 (Lexis 2004); Wash.
Rev. Code Ann. 10.73.170(4) (West Supp. 2004). In addition to these statutes, two states have legislation either pending or not
yet effective. The Hawaii Legislature has proposed House Bill 1005 for the 2004 session that "requires county police
departments to retain evidence that can be used for DNA analysis until: (1) all appeals of the case have been exhausted; or (2)
the defendant has completed serving the defendant's sentence, including any term of probation, whichever occurs later." H.B.
1005, 22d Leg., Reg. Sess. (Haw. 2004), available at http://www.capitol.hawaii.gov/sessioncurrent/bills/hb1005.htm. Montana
also passed House Bill 77 in March 2003, mandating the preservation of biological material for a minimum of three years. H.B.
77, 58th Leg., Reg. Sess. (Mont. 2003), available at http://data.opi.state.mt.us/bills/2003/billhtml/HB0077.htm.
74See Ariz. Rev. Stat. Ann. 13-4240(H); Ark. Code Ann. 12-12-104 (Michie 2003); Cal. Penal Code 1417.9; Conn. Gen. Stat.
Ann. 54-102i; D.C. Code Ann. 22-4134; Ga. Code Ann. 17-5-56 (2004); 725 Ill. Comp. Stat. Ann. 5/116-4; Kan. Stat. Ann. 21-
2512; La. Code Crim. Proc. Ann. art. 926.1; Me. Rev. Stat. Ann. tit. 15, 2138; Md. Code Ann., Crim. Proc. 8-201; Mich. Comp.
Laws Ann. 770.16; Minn. Stat. Ann. 299C.155; Neb. Rev. Stat. Ann. 29-4125; N.M. Stat. Ann. 31-1A-2; N.C. Gen. Stat. Ann.
15A-268; Okla. Stat. Ann. tit. 22, 1372; R.I. Gen. Laws 10-9.1-11; Tenn. Code Ann. 38-6-113; Tex. Crim. Proc. Code Ann. 38.39;
Va. Code Ann. 19.2-270.4:1; Wash. Rev. Code Ann. 10.73.170.
75See Ariz. Rev. Stat. Ann. 13-4240(H); Ark. Code Ann. 12-12-104; D.C. Code Ann. 22-4134(d); Me. Rev. Stat. Ann. tit 15,
2138(2).
76 See Ariz. Rev. Stat. Ann. 13-4240; Ark. Code Ann. 12-12-104; D.C. Code Ann. 22-4134; Me. Rev. Stat. Ann. tit. 15, 2138; see
also Kanon, supra note 41, at 492 (stating that statutes that impose criminal sanctions on individuals who violate DNA evidence
preservation statutes are of "no help to the defendant, but may deter state actors from intentionally destroying evidence").
77 Under the Arizona preservation statute, "if evidence is intentionally destroyed after the court orders its preservation, the court
may impose appropriate sanctions, including criminal contempt, for a knowing violation." Ariz. Rev. Stat. Ann. 13-4240(H). Under
the Arkansas statute, a person who purposefully destroys evidence that falls under the preservation statute is guilty of a Class A
misdemeanor. Ark. Code Ann. 12-12-104(e)(2). Under Arkansas law, a person guilty of a Class A misdemeanor may be
sentenced to pay a fine not exceeding $ 1,000, and may be incarcerated for up to one year. Ark. Code Ann. 5-4-201(b)(1), -
401(b)(1). Under the District of Columbia preservation statute:
whoever willfully or maliciously destroys, alters, conceals, or tampers with evidence that is required to be preserved under this
section with the intent to (1) impair the integrity of that evidence, (2) prevent that evidence from being subjected to DNA testing,
 Page 11 of 32
2004 Wis. L. Rev. 1245, *1260

While Wisconsin courts have adopted the Trombetta and Youngblood tests, in two decisions the Wisconsin Court of
Appeals interpreted the tests in a manner unique to Wisconsin. First, in State v. Greenwold, the Wisconsin Court of
Appeals interpreted the Trombetta and Youngblood tests not as being separate and independent examinations, but
rather as being complementary parts of a two-step due process analysis. 92 Under this two-step analysis, whether
a court applies the Trombetta or Youngblood test depends on the level of exculpatory value of the destroyed
evidence. 93 Second, while the Trombetta and Youngblood tests originally addressed only the pretrial destruction
of evidence, in State v. Parker the Wisconsin Court of Appeals extended the two tests to apply to postconviction
evidence preservation. 94 Viewed together, Greenwold and Parker suggest that the Trombetta and Youngblood
tests are a viable means to address violations of Wisconsin's DNA evidence preservation statutes.

A. The Current Constitutional Evidence Preservation Doctrines: Trombetta and Youngblood

1. trombetta: the focus on the exculpatory value of evidence

In Trombetta, the U.S. Supreme Court addressed whether the Due Process Clause requires states to "preserve
potentially exculpatory [*1261] evidence on behalf of defendants." 95 The facts of the case are simple enough.
Police stopped the defendants in Trombetta for suspicion of drunken driving, and each defendant took an Intoxilyzer
test upon request. 96 Both defendants registered blood-alcohol concentrations higher than 0.10%, and the police
accordingly charged them with driving while intoxicated in violation of California law. 97

The defendants moved to suppress the test results on the basis that the officer who administered the tests failed to
preserve the samples of the defendants' breath. 98 The defendants claimed that, had the breath samples been
preserved, they would have been able to impeach the Intoxilyzer results. 99 The motion to suppress was denied by
the municipal court, and the defendants were convicted. 100 The defendants appealed, and the California Court of
Appeals granted the defendants new trials and barred the State from admitting the Intoxilyzer results as evidence.
101

or (3) prevent the production or use of that evidence in an official proceeding, shall be subject to a fine of $ 100,000 or
imprisoned for not more than 5 years, or both.

D.C. Code Ann. 22-4134(d).

78 Me. Rev. Stat. Ann. tit. 15, 2138(2).
79 It is important to note that the very name of the proposed federal provision - "The Innocence Protection Act of 2003" - bolsters
the suggestion that the incarcerated individual has the right to have evidence related to his or her case preserved and tested.
Indeed, both the title and provisions demonstrate that the incarcerated individual's interests are sought to be protected through
affirmative government action.
80 See S. 1700, 108th Cong. (2003) (amending Part II of 18 U.S.C.); see also H.R. 3214, 108th Cong. (2003) (amending Part II
of 18 U.S.C.).
81 S. 1700 3600A(a); see also supra note 23.
82 S. 1700 3600A(a); see also supra note 34.
83 S. 1700. Much like the Arizona, Arkansas, District of Columbia, and Maine statutes, the Innocence Protection Act creates a
criminal penalty for the person responsible for a knowing and intentional destruction of biological evidence. S. 1700 3600A(f).
84 In addition to asking courts to fashion remedies for violations of preservation statutes, a potential additional avenue of
recourse may be available to prisoners through civil litigation in the form of a 42 U.S.C. 1983 civil rights claim. Section 1983
reads:
every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress.
 Page 12 of 32
2004 Wis. L. Rev. 1245, *1261

In reversing the California Court of Appeals, the U.S. Supreme Court stated that, if any duty to preserve exculpatory
evidence existed, the duty would stem from the defendants' constitutional right to access evidence. 102 It also
acknowledged, however, the difficulty that courts have when examining the probative value of evidence that is
destroyed: "whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of
divining the import of materials whose contents are unknown and, very often, disputed." 103

Based on the Court's recognition of the difficulties that surround the examination of the evidentiary value of
destroyed evidence, the Court held that the constitutional duty to preserve evidence was limited only to evidence
"that might be expected to play a significant role in the suspect's defense." 104 Under this standard of materiality,
the Court created a three-pronged test that a criminal defendant must satisfy to [*1262] prove that the destruction
of evidence violated due process. 105 First, the defendant must prove the evidence possessed "an exculpatory
value." 106 Second, the defendant must prove the exculpatory value was "apparent before the evidence was
destroyed." 107 Finally, the evidence must "be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means." 108

The Court held the breath samples did not satisfy this standard. 109 It determined that, while "the preservation of
breath samples might conceivably have contributed to [the defense] … the chances [were] extremely low that [the]
preserved samples would have been exculpatory." 110 Therefore, the Court held that the Due Process Clause did
not require the police to preserve the breath samples. 111

The Court's definition of "apparent exculpatory value" has been a focal point for numerous commentators, and
many have attempted to clarify exactly what constitutes "apparently exculpatory" evidence. 112 Moreover, other
federal courts have done little to elaborate upon the Court's definition. 113 In United States v. Cooper, however, the
U.S. Court of Appeals for the Ninth Circuit expounded on the term "apparently exculpatory" that resulted in perhaps
the clearest explanation of the term. 114 Namely, in Cooper, the Ninth Circuit stated that evidence is "apparently
exculpatory" when either of two facts [*1263] exist. 115 The first occurs when defense counsel suggests that the

42 U.S.C. 1983 (2000). If a prisoner could prove that a state actor, by destroying evidence covered by a DNA evidence
preservation statute, violated the prisoner's due process rights, it is conceivable that a prisoner could successfully pursue a 1983
claim and request a reversal of his or her conviction. However, this is mere speculation, and this Comment will focus only on the
result of requesting a court to fashion a remedy to the DNA evidence preservation statutes because of the statutes' silence
regarding remedies.
85 373 U.S. 83, 87 (1963); see also LaJuana S. Davis, Discovery in Criminal Cases: Obtaining Evidence and Information
Necessary for an Effective Defense, 58 Ala. Law. 352, 352 (1997). Brady v. Maryland held that, "in a state criminal case, the
prosecution's suppression of evidence favorable to and requested by the defendant violates the due process clause of the
Fourteenth Amendment, irrespective of the good faith or bad faith of the prosecution, where the evidence is material either to
guilt or to punishment." Gary Knapp, Annotation, Prosecution's Failure to Preserve Potentially Exculpatory Evidence As Violating
Criminal Defendant's Due Process Rights Under Federal Constitution - Supreme Court Cases, 102 L. Ed. 2d 1041, 1043 (1990).
86 427 U.S. 97, 110-12 (1976). United States v. Agurs held that

under the Fifth Amendment's due process clause for federal criminal cases and under the Fourteenth Amendment's due process
clause for state criminal cases, the prosecution has the duty to volunteer to the defense any exculpatory evidence that creates a
reasonable doubt about guilt, but that the prosecution does not have a duty to allow complete discovery of the prosecution's files
to the defense as a matter of routine practices.
Knapp, supra note 85, at 1043.
87 See Knapp, supra note 85, at 1043.
88 The Supreme Court has stated:

Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of
materials whose contents are unknown and, very often, disputed… . Moreover, fashioning remedies for the illegal destruction of
evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously
 Page 13 of 32
2004 Wis. L. Rev. 1245, *1263

evidence possesses potentially exculpatory value. 116 The second occurs when government agents recognize the
evidence has exculpatory value. 117

2. youngblood: the addition of the "bad faith" requirement

Only four years after Trombetta, the Court developed a new constitutional standard for the preservation of
evidence in Youngblood. 118 Police arrested the defendant in Youngblood on charges of kidnapping, sexually
assaulting, and molesting a ten-year-old boy. 119 After the attack, police officers took the victim to a hospital where
they collected the victim's clothing worn at the time of the attack. 120

Two years later, a criminologist examined the victim's clothing for the first time and found semen stains. 121 The
criminologist attempted to derive the blood group substances from the stains to determine whether the semen came
from the defendant. 122 However, most of the biological evidence had decomposed because the clothing was
improperly refrigerated. 123 The criminologist was therefore unable to find enough testable protein to reach a
conclusive result. 124 While the trial court allowed the defendant to present forensic testimony that the blood tests
might have excluded him as the attacker, the jury nonetheless convicted him of all counts. 125

[*1264] The Arizona Court of Appeals reversed the trial court, holding that the State violated the defendant's due
process rights by failing to preserve the semen samples. 126 After the California Supreme Court denied the state's
request for appellate review, the U.S. Supreme Court granted certiorari, and reversed the court of appeals. 127

As in Trombetta, the Court began its analysis by acknowledging that if any duty to preserve evidence existed, it
originated from the defendant's constitutional right to access evidence. 128 The Court then examined the
applicability of the Trombetta test. 129 While not stating that the destroyed semen samples possessed apparent
exculpatory value, the Court did admit that "the likelihood that the preserved materials would have enabled the
defendant to exonerate himself appears to be greater than it was in Trombetta." 130 The Court, however,

suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must
choose between barring further prosecution or suppressing … the State's most probative evidence.

See Trombetta, 467 U.S. at 486-87.

89 467 U.S. at 489.
90 488 U.S. at 58.
91 See Youngblood, 488 U.S. at 54; Trombetta, 467 U.S. at 484.
92 State v. Greenwold, 189 Wis. 2d 59, 69, 525 N.W.2d 294, 298 (Ct. App. 1994).
93 Id.
94 See State v. Parker, 2002 WI App 159, PP 13-14, 256 Wis. 2d 154, 160, 647 N.W.2d 430, 433.
95 467 U.S. at 481.
96 Id. at 482.
97 Id.
98 Id. The Court noted that while the "preservation of breath samples is technically feasible, California law enforcement officers
do not ordinarily preserve breath samples." Id. at 482-83 (footnote omitted).
99 Id. at 483.
100 Id.
101 Id. at 483-84. The court of appeals stated: ""due process demands simply that where evidence is collected by the state, as it
is with the intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and
 Page 14 of 32
2004 Wis. L. Rev. 1245, *1264

determined that Trombetta was inapplicable because, unlike the breath samples in Trombetta, the destroyed
biological evidence was not part of the State's case against the defendant. 131

In lieu of the Trombetta test, the Court adopted a new test that focused on the actions of the law enforcement
agents surrounding the destruction of the evidence. 132 Specifically, this new test requires a defendant to
demonstrate two facts to show the destruction of evidence violated due process. 133 First, the defendant must
demonstrate that the evidence was "potentially useful" to his or her case, a lower standard of materiality than
Trombetta's "apparently exculpatory" standard. 134 Second, the defendant must demonstrate that the police acted
in "bad faith" when destroying the evidence. 135

[*1265] The Court stated that "bad faith" exists when the "police themselves by their conduct indicate that the
evidence could form a basis for exonerating the defendant." 136 This, in turn, depended "on the police's knowledge
of the exculpatory value of the evidence at the time it was lost or destroyed." 137 The Court also stated that "bad
faith" exists when law enforcement agents act outside the scope of normal practice. 138

Applying this new analysis, the Court did not find a due process violation because it determined the police did not
act in "bad faith" when failing to preserve the samples. 139 Specifically, the defendant did not demonstrate "that the
police knew the semen samples would have exculpated him when they failed to perform certain tests or to
refrigerate the boy's clothing." 140 At worst, the Court stated, the failure to refrigerate the clothing properly could
"be described as negligent." 141

Like the Trombetta Court's use of the term "apparent exculpatory value," the Youngblood "bad faith" standard has
garnered much attention from commentators and courts. 142 Lower courts - including those in Wisconsin - have
construed Youngblood's definition of "bad faith" to require the defendant to meet a very high standard of proof. 143
Federal circuit courts have followed Youngblood's lead and have held [*1266] that negligence in failing to preserve
evidence does not constitute "bad faith." 144 Moreover, the U.S. Court of Appeals for the Seventh Circuit has held

systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.'" Id. (quoting People v.
Trombetta, 190 Cal. Rptr. 319, 323 (Ct. App. 1983)).
102 See id. at 485.
103 Id. at 486.
104 Id. at 488.
105 Id. at 489.
106 Id.
107 Id.
108 Id.
109 See id.
110Id. The Court noted because the Intoxilyzer was demonstrably accurate and certified by the California Department of Health,
once results indicated that the defendants were intoxicated, "breath samples were much more likely to provide inculpatory than
exculpatory evidence." See id.
111 Id. at 491.
112 For example, two commentators have noted:

Adoption of "exculpatory value" as a standard for constitutional materiality represents a departure from the strict standard for
constitutional materiality articulated in Agurs, which provided that "if the omitted evidence created a reasonable doubt that did
not otherwise exist, constitutional error has been committed." Thus, "exculpatory value" means something less than establishing
innocence.
Lawrence Solum & Stephen Marzen, Truth and Uncertainty: Legal Control of the Destruction of Evidence, 36 Emory L.J. 1085,
1146-47 (1987) (footnote omitted) (quoting Agurs, 427 U.S. at 112).
 Page 15 of 32
2004 Wis. L. Rev. 1245, *1266

that "bad faith" exists only when the state acts with ""official animus' or [makes] a "conscious effort to suppress
exculpatory evidence.'" 145

The Wisconsin Court of Appeals has adopted both of these standards. 146 The court rejected the argument that
"bad faith" exists "when the police negligently fail to preserve evidence which is merely potentially exculpatory." 147
Rather, the court held that "bad faith" exists only when law enforcement agencies acted with "official animus or
made a conscious effort to suppress exculpatory evidence." 148

B. The Evidence Preservation Doctrine Under Wisconsin Law: The Two-Step Trombetta-Youngblood Evidence
Preservation Analysis Formulated in Greenwold

While the U.S. Supreme Court did not clearly state whether the Youngblood test overruled the Trombetta test,
Wisconsin courts view Youngblood as a separate test that complements Trombetta. 149 Specifically, Wisconsin
courts maintain that whether the Trombetta or Youngblood test applies in a particular case depends on the
perceived exculpatory value of the evidence. 150 In Greenwold, the Wisconsin Court of Appeals first formulated this
approach to the Trombetta and [*1267] Youngblood tests after examining the differences between the two tests.
151 In particular, the court noted that Youngblood added the examination of the presence of "bad faith" to

Trombetta's examination of the materiality of the destroyed evidence. 152 It therefore reasoned that the U.S.
Supreme Court intended to create two complementary evidence preservation standards, and fashioned a two-step
analysis to reflect that interpretation:

The due process analysis is two-pronged. A defendant's due process rights are violated if the police: (1) failed to
preserve the evidence that is apparently exculpatory; or (2) acted in bad faith by failing to preserve evidence which
is potentially exculpatory.

113 See, e.g., United States v. Wright, 2001 FED App. 0255P, 260 F.3d 568, 570-71 (6th Cir.) (citing the Trombetta test without
explaining what constitutes "apparently exculpatory" evidence); United States v. Parker, 72 F.3d 1444, 1451 (10th Cir. 1995)
(stating only "the mere possibility that lost or destroyed evidence could have exculpated a defendant is not sufficient to satisfy
Trombetta's requirement that the exculpatory value be "apparent' to the police before destruction").
114 See 983 F.2d 928, 931 (9th Cir. 1993).
115 See id.
116 See id. In Cooper, the potential exculpatory value of the evidence in question was suggested to government agents by the
defense team, the defendant's parole agent, and a neutral witness who confirmed the exculpatory nature of the evidence. Id.
Moreover, before the evidence was destroyed, the government agents had the opportunity to examine the evidence in question
to confirm or disprove their claims. Id.
117 See id.; see also United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994) (offering a definition of "apparently exculpatory" by
stating that latent exculpatory value is not apparent"). However, it is important to note that while this definition is clear and
simple, it is, like the Trombetta definition of "apparently exculpatory," inherently deficient. It "allows state destruction of clearly
relevant evidence - perhaps conclusive evidence, in the case of a breath sample, fingerprints, or certain body samples - as long
as state agents were not on notice that the evidence was exculpatory before it was destroyed." Solum & Marzen, supra note
112, at 1147.
118 488 U.S. at 58.
119 Id. at 52.
120 Id. at 52-53.
121 Id. at 54.
122 Id.
123 Id.
 Page 16 of 32
2004 Wis. L. Rev. 1245, *1267

… The Youngblood analysis suggests that if the materiality of the evidence rises above being potentially useful to
clearly exculpatory, a bad faith analysis need not be evoked; the defendant's due process rights are violated
because of the apparently exculpatory nature of the evidence not preserved. 153

Under Wisconsin law, the adoption of either Trombetta or Youngblood therefore depends on the probative value of
the evidence in question. 154 This, in turn, results in a two-step due process analysis regarding the state's duty to
preserve evidence. 155 The first step is the [*1268] Trombetta test, which Wisconsin courts apply if the evidence
involved is "apparently exculpatory." 156 Courts will apply the second step of the analysis - the Youngblood test -
when the evidence fails to be "apparently exculpatory," and is only merely "potentially useful." 157 Simply put, if
courts determine that the exculpatory value of the evidence was apparent, they then go on to examine whether the
defendant could have obtained the evidence through reasonable alternative means (as in Trombetta); if the courts
determine that the exculpatory value of the evidence was not apparent, they instead examine whether the
destruction of the evidence was due to "bad faith" on the part of the state (as in Youngblood). 158

C. Parker's Extension of Trombetta and Youngblood to Postconviction Destruction of Evidence

The Trombetta and Youngblood evidence preservation doctrines originally addressed only instances where
evidence was destroyed pretrial. However, in Parker, the Wisconsin Court of Appeals stated that Trombetta and
Youngblood are, in fact, applicable to the postconviction destruction of evidence. 159 The defendant in Parker was
convicted of delivery of marijuana. 160 He filed a postconviction motion requesting a new trial, asserting that his
appellate counsel had learned that an audiotape of the alleged drug transaction between the defendant [*1269]
and an undercover police officer existed. 161 The appellate counsel contacted the district attorney's office in an
attempt to obtain the tape, but the district attorney informed him that the State destroyed the tape upon the
defendant's conviction. 162

The defendant claimed that the destruction of the tape deprived him of his right to appeal and his right to effective
counsel. 163 Analogizing the destroyed audiotape to a trial transcript, the defendant based his claim on Wisconsin

124 Id.
125 Id.
126 Id. at 54-55.
127 Id. at 55.
128 See id. The Court determined that because the State complied with Brady and its progeny in this case, if the defendant were
to prevail under the Due Process Clause, "it must be because of some constitutional duty over and above that imposed by cases
such as Brady and Agurs." See id. at 56.
129 Id.
130 Id.
131 Id.
132 Id. at 57-58.
133 Id.
134 Id. The Court stated that "potentially useful" evidence included evidence much less exculpatory than evidence that may play
a significant role in the suspect's defense, including evidence that is "simply an avenue of investigation that might have led in
any number of directions," and evidence about which "no more can be said than that it could have been subjected to tests, the
results of which might have exonerated the defendant." Id. at 57 n.. Note that some courts use the term "potentially exculpatory"
in lieu of "potentially useful" when adopting the Youngblood preservation doctrine. See, e.g., Parker, 2002 WI App 159, P 14,
256 Wis. 2d at 160, 647 N.W.2d at 433. This Comment treats both terms synonymously.
135 Youngblood, 488 U.S. at 58.
136 Id.
 Page 17 of 32
2004 Wis. L. Rev. 1245, *1269

case law that states a missing trial transcript entitles a criminal defendant to a new trial if the defendant
demonstrates a ""colorable need'" for the transcript. 164

The Wisconsin Court of Appeals rejected the defendant's analogy as inapposite and denied his claim. 165
However, the court did not end its opinion there, and took up sua sponte the issue of whether the destruction of the
tape constituted a deprivation of the defendant's due process rights:

The parties have not cited to, nor have we located, any case law addressing the posttrial destruction of evidence.
There is a long line of cases addressing the pretrial destruction of evidence and a defendant's due process rights.
We see no reason why this line of cases should not apply to the situation at hand. 166

The court then applied the Greenwold two-step analysis to determine whether the destruction of the tape violated
the defendant's due process rights. 167 After a cursory examination, it found no violation of due process because
the tape was "hardly" "apparently exculpatory," and that the "there [was] not even a hint of bad faith by the State."
168

Despite its predictable conclusion, Parker's significance lies in the fact that, through the court's adoption of the
Greenwold analysis, it marks the first time that a Wisconsin court has expanded the evidence preservation
doctrines into the postconviction arena. Indeed, it is an expansion of due process rights that has yet to be rebuked
by Wisconsin courts. While the Parker court's expansion of the Trombetta and Youngblood analyses may appear to
be nothing more than a mere afterthought, it is nonetheless of critical importance when viewed in [*1270]

137 Id. at 57 n..

138 See id. at 56 (quoting Killian, 368 U.S. at 242).
139 Id. at 58.
140 Id. at 57 n..
141 Id. at 58.
142 See, e.g., Daniel R. Dinger, Note, Should Lost Evidence Mean a Lost Chance to Prosecute?: State Rejections of the United
States Supreme Court Decision in Arizona v. Youngblood, 27 Am. J. Crim. L. 329, 348-68 (2000) (summarizing the rejection of
the Youngblood "bad faith" requirement by numerous state courts, such as those in Alaska, Delaware, New Hampshire, New
Mexico, and Tennessee, and examining the advantages and disadvantages of the "bad faith" requirement).
143 See id. at 366 (stating that under common judicial interpretations of the term "bad faith," a "defendant is required to prove
that the police were: (1) aware of the significance of the evidence in question (2) under an acknowledged duty to gather or
preserve such evidence and (3) deliberately refused to perform their duty"); see also Greenwold, 189 Wis. 2d at 69, 525 N.W.2d
at 298 (stating that "bad faith" exists only when law enforcement agencies acted with "official animus or made a conscious effort
to suppress exculpatory evidence"). But see Edward L. Wilkinson, Brady and Ethics: A Prosecutor's Evidentiary Duties to the
Defense Under the Due Process Clause and Their Relationship to the State Bar Rules, 61 Tex. B.J. 453, 437 (1998) (suggesting
that an examination of "whether the evidence was exculpatory on its face is actually a component of the issue of whether the
State has acted in bad faith"). As such,
a court reviewing a failure to preserve claim must consider three "factors": (1) the level of government culpability; (2) the
likelihood that the lost evidence was exculpatory; and (3) the likelihood that the defendant was significantly prejudiced at trial by
the absence of the evidence. Failure to establish any one of the three prongs results in a failure to prove the entire claim,
regardless of the status of the remaining two prongs.
Id. (footnote omitted).
144 See Holdren v. Legursky, 16 F.3d 57, 60 (4th Cir. 1994) (holding that physicians, in acting as agents of the state, did not act
in "bad faith" when following "standard procedures in collecting, analyzing, and disposing of" evidence); United States v. Femia,
9 F.3d 990, 995 (1st Cir. 1993) (holding that the accidental destruction of audio-cassette tapes that was in accordance with
official authorization did not constitute "bad faith"); Montgomery v. Greer, 956 F.2d 677, 680-81 (7th Cir. 1992) (holding "bad
faith" was not evident by the police losing photographs in an "unprofessional" manner); United States v. Sanders, 954 F.2d 227,
231 (4th Cir. 1992) (holding that, in the destruction of a video tape, the FBI did not act in "bad faith" when the tape was
 Page 18 of 32
2004 Wis. L. Rev. 1245, *1270

conjunction with violations of Wisconsin's DNA evidence preservation statutes. Simply put, it demonstrates that
Trombetta and Youngblood are indeed applicable to violations of Wisconsin's DNA evidence preservation statutes.

III. Presumptions Created by Statute: The Application of Trombetta and Youngblood to Violations of the DNA
Evidence Preservation Statutes and the Resulting Per Se Due Process Violations

A. Trombetta and Youngblood Revisited in the Context of the Right to DNA Evidence Preservation and Testing

When a Wisconsin court undertakes the two-step Greenwold analysis to address the destruction of evidence, the
outcome of the analysis depends on two specific examinations. The first examination focuses on the facts
surrounding the crime itself to determine whether the destroyed evidence was "apparently exculpatory" or
"potentially useful." 169 If the evidence is determined to be merely "potentially useful," the court then examines the
facts surrounding the destruction or disappearance of the evidence to determine whether the disappearance or
destruction took place in circumstances that suggest "bad faith." 170

Nothing suggests that the form and order of these examinations would change if courts used them to address
violations of the DNA evidence preservation statutes. 171 However, in undertaking these examinations, courts
would have to incorporate the presumptions created by the DNA evidence preservation statutes regarding the
evidence in question and the State's conduct surrounding the violation of the statutes. By creating a right to
preservation and testing, the DNA evidence preservation statutes create three presumptions regarding both the
materiality of the evidence and the circumstances surrounding the destruction or loss of the evidence. First, the

destroyed while in the possession of a commercial processing firm with which the FBI had a working relationship for over "fifteen
years").
145See Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992) (quoting United States v. Nesbitt, 852 F.2d 1502, 1520 (7th Cir.
1988)).
146 Greenwold, 189 Wis. 2d at 69, 525 N.W.2d at 298.
147 Id. at 68, 525 N.W.2d at 297 (citing Youngblood, 488 U.S. at 58).
148 Id. at 69, 525 N.W.2d at 298 (citing Sadowski v. McCormick, 785 F. Supp. 1417, 1422 (D. Mont. 1992)).
149 See id. at 67-68, 525 N.W.2d at 297.
150See id. But see Dinger, supra note 142, at 361, 382-83 (summarizing a case in which the court stated that the Youngblood
"bad faith" requirement should be replaced with a balancing test that takes into account multiple factors, such as whether "1) the
State either breached some duty or intentionally deprived the defendant of evidence; 2) the improperly "suppressed' evidence
must have been material; and 3) the suppression of this evidence prejudiced the defendant") (quoting State v. Riggs, 838 P.2d
975, 977-78 (N.M. 1992)).
151 Greenwold, 189 Wis. 2d at 67, 525 N.W.2d at 297.
152 Id.
153 Id. at 67-68, 525 N.W.2d at 297.
154 Id.
155 Id.; see also Youngblood, 488 U.S. at 57-58; Trombetta, 467 U.S. at 489; Bohl, 25 F.3d at 910 ("To invoke Trombetta, a
defendant must demonstrate that the government destroyed evidence possessing an "apparent' exculpatory value. However, to
trigger the Youngblood test, all that need be shown is that the government destroyed "potentially useful evidence.'") (citations
omitted); Cooper, 983 F.2d at 931; Parker, 2002 WI App 159, P 14, 256 Wis. 2d at 160, 647 N.W.2d at 433; State v. Noble,
2001 WI App 145, P 17, 246 Wis. 2d 533, 548, 629 N.W.2d 317, 323. The U.S. Court of Appeals for the Ninth Circuit stated:
Youngblood's "bad faith" requirement dovetails with the first part of the Trombetta test: that the exculpatory value of the evidence
be apparent before its destruction. The presence or absence of "bad faith" turns on the government's knowledge of the apparent
exculpatory value of the evidence at the time it was lost or destroyed.
Cooper, 983 F.2d at 931 (citations omitted). Wisconsin courts have followed this lead. For example, in Parker, the court of
appeals stated:
 Page 19 of 32
2004 Wis. L. Rev. 1245, *1270

DNA evidence preservation statutes presume that all biological evidence collected in the course of a criminal
investigation and covered by the statutes is material. Second, because of this presumption of materiality, the DNA
evidence preservation statutes further presume that, in every case, biological evidence collected in the course of a
criminal investigation is "potentially useful." Finally, because the DNA evidence preservation statutes outline the
normal course of conduct for Wisconsin law enforcement agencies regarding the collection, preservation, and
eventual destruction of biological evidence, every violation of the [*1271] statutes indicates "bad faith" as defined
by Youngblood.

1. the dna evidence preservation statutes presume that all biological evidence collected in the course of a criminal
investigation is material

In the case of violations of the DNA evidence preservation statutes, as with all Wisconsin cases where the state
failed to preserve material evidence, the determination of the applicability of either the Trombetta or Younglood test
first depends on the materiality of the biological evidence that was lost or destroyed. 172 One of the great difficulties
in applying these tests, however, is that one cannot definitively know the material value of evidence that no longer
exists. While the destroyed evidence could have clearly exonerated an individual, it also could have implicated him
or her, or been irrelevant and have had no evidentiary value at all. This conundrum of interpolating or extrapolating
materiality from the evidence is what the Trombetta Court spoke of when it stated that when addressing instances
of destroyed evidence, "courts face the treacherous task of divining the import of materials whose contents are
unknown and, very often, disputed." 173

However, what is unique about applying the Trombetta and Youngblood tests to address violations of the DNA
evidence preservation statutes is that the Wisconsin legislature has already done much of that interpolation and
extrapolation for the courts. The Wisconsin legislature has placed a concerted emphasis on the importance of
postconviction DNA testing. Indeed, with section 974.07 and the DNA evidence preservation statutes, the
legislature created for convicted individuals the right to the preservation of biological evidence and, in some cases,
DNA [*1272] testing. 174 The existence of the right to DNA preservation and testing demonstrates the legislative

A defendant's due process rights are violated by the destruction of evidence (1) if the evidence destroyed was "apparently
exculpatory" and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable
means; or (2) if the evidence was potentially exculpatory and was destroyed in bad faith.
2002 WI App 159, P 14, 256 Wis. 2d at 160, 647 N.W.2d at 433; see also Noble, 2001 WI App 145, P 17, 246 Wis. 2d at 548,
629 N.W.2d at 323. But see Elizabeth A. Bawden, Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When
Police Lose or Destroy Evidence with Apparent Exculpatory Value, 48 Clev. St. L. Rev. 335, 348-49 (2000) (arguing that the
demonstration of "bad faith" is a required element to prove a violation of due process rights under both Trombetta and
Youngblood).
156 See Greenwold, 189 Wis. 2d at 67-68, 525 N.W.2d at 297 (citing Trombetta, 467 U.S. at 489).
157 See id. (citing Youngblood, 488 U.S. at 58).
158 Youngblood, 488 U.S. at 56-58 (examining the material value of the destroyed evidence before examining whether the
evidence was destroyed in circumstances that suggested "bad faith"); Trombetta, 467 U.S. at 489-90 (examining the material
value of the destroyed evidence before examining whether the defendant had access to comparable evidence through
reasonable alternative means); Greenwold, 189 Wis. 2d at 67-68, 525 N.W.2d at 297; see also Parker, 2002 WI App 159, P 14,
256 Wis. 2d at 160, 647 N.W.2d at 433.
159 Parker, 2002 WI App 159, P 13, 256 Wis. 2d at 160, 647 N.W.2d at 433 ("There is a long line of cases addressing the pretrial
destruction of evidence and a defendant's due process rights. We see no reason why this line of cases should not apply to the
situation at hand [a postconviction challenge to the postconviction destruction of evidence].").
160 Id. P 2, 256 Wis. 2d at 156, 647 N.W.2d at 431.
161 Id. P 3, 256 Wis. 2d at 156, 647 N.W.2d at 431.
162 Id. P 4, 256 Wis. 2d at 157, 647 N.W.2d at 431.
163 Id.
 Page 20 of 32
2004 Wis. L. Rev. 1245, *1272

judgment that biological evidence combined with DNA technology "might be expected to play a significant role in
the suspect's defense," even after that suspect's conviction. 175 In other words, the DNA evidence preservation
statutes place preserved biological evidence in the category of evidence that the U.S. Supreme Court deemed as
material. 176

2. the dna evidence preservation statutes presume that all evidence collected in the course of a criminal
investigation is at least "potentially useful"

When a Wisconsin court examines whether destroyed biological evidence covered by the DNA evidence
preservation statutes is "apparently exculpatory," "potentially useful," or neither, its examination is shaped by the
reality of DNA testing and the presumptions created by the statutes themselves. Namely, unlike nonbiological
evidence, DNA evidence is unique in that it can easily be categorized as "apparently exculpatory" or "potentially
useful" because of how it can establish with scientific certainty the identity of the perpetrator of a crime. 177 This
simplicity in categorization helps define the terms "apparently exculpatory" and "potentially useful" with further
precision.

[*1273] Specifically, when pertaining to DNA evidence, "apparently exculpatory" evidence contemplates instances
in which biological evidence was collected and, if subjected to testing or retesting, results that excluded the
petitioner would exonerate him or her of the crime. 178 In order for such evidence to be deemed "apparently
exculpatory," the government also must have notice that DNA testing on the evidence could have exonerated the
prisoner through exclusionary results. 179

Likewise, "potentially useful" DNA evidence refers to evidence in cases where, "if … subjected to DNA testing or
retesting, exclusionary results would support the petitioner's claims of innocence." 180 As the Supreme Court stated
in Youngblood, this would include evidence that was "simply an avenue of investigation that might have led in any
number of directions," 181 as well as evidence about which "no more can be said than that it could have been
subjected to tests, the results of which might have exonerated the defendant." 182 In the context of DNA evidence,

164 Id. P 9, 256 Wis. 2d at 158, 647 N.W.2d at 432 (quoting State v. Perry, 136 Wis. 2d 92, 108, 401 N.W.2d 748, 755 (1987)).
165 Id. PP 11-12, 19, 256 Wis. 2d at 159-60, 162, 647 N.W.2d at 433-34.
166 Id. P 13, 256 Wis. 2d at 160, 647 N.W.2d at 433.
167 Id. PP 14-18, 256 Wis. 2d at 160-62, 647 N.W.2d at 433-34.
168 Id. PP 15-18, 256 Wis. 2d at 161-62, 647 N.W.2d at 433-34.
169 SeeGreenwold, 189 Wis. 2d at 67-68, 525 N.W.2d at 297 (examining facts of the crime to ascertain whether the destroyed
evidence was "apparently exculpatory"); see also Trombetta, 467 U.S. at 489.
170 See Greenwold, 189 Wis. 2d at 67-68, 525 N.W.2d at 297; see also Youngblood, 488 U.S. at 56-58 (examining the
circumstances surrounding the destruction of the evidence in question to determine whether they suggested "bad faith" on the
part of the police).
171 While one might argue that the absence of the presumption of innocence in the postconviction challenge to the destruction of
evidence would make it more difficult to apply the Trombetta and Youngblood evidence preservation doctrines, the Wisconsin
Court of Appeals implicitly rejected this argument in Parker when it adopted both doctrines unchanged in the case of such a
postconviction challenge. Parker, 2002 WI App 159, PP 13-14, 256 Wis. 2d at 160, 647 N.W.2d at 433. In doing so, the court
added the following: "There is a long line of cases addressing the pretrial destruction of evidence and a defendant's due process
rights. We see no reason why this line of cases should not apply to [a postconviction challenge to the postconviction destruction
of evidence]."
Id. (citing Noble, 2001 WI App 145, P 17, 246 Wis. 2d at 548, 629 N.W.2d at 323).
172 See Greenwold, 189 Wis. 2d at 67-68, 525 N.W.2d at 297.
173 467 U.S. at 486.
174 See supra Part I.C.
 Page 21 of 32
2004 Wis. L. Rev. 1245, *1273

moreover, "potentially useful" evidence refers to evidence that, if tested, the results allow reasonable persons to
"disagree as to whether the results rule out the possibility of guilt or raise a reasonable doubt about guilt." 183

As stated above, biological evidence that is covered by the DNA preservation statutes must always be presumed
material because the right to DNA evidence preservation and testing demonstrates the legislative [*1274]
judgment that the preserved biological evidence "might be expected to play a significant role in the suspect's
defense." 184 Courts must therefore consider such DNA evidence to be "potentially useful" if that evidence simply
provides "an avenue of investigation that might have led in any number of directions," 185 and that "no more can be
said than that it could have been subjected to tests, the results of which might have exonerated the defendant." 186
Biological evidence covered under the DNA evidence preservation statutes provides such an opportunity, as testing
of that evidence allows "reasonable persons [to] disagree as to whether the results [of DNA testing] rule out the
possibility of guilt or raise a reasonable doubt about guilt." 187 Therefore, evidence covered by the DNA evidence
preservation statutes must be deemed "potentially useful," and the destruction of such evidence would trigger the
Youngblood due process test. 188 In fact, because all evidence covered by the DNA preservation statutes will
always be deemed to be at least "potentially useful" by virtue of the right to DNA evidence preservation and testing,
the destruction of such evidence will always, at the very least, invoke the Youngblood analysis. 189

However, biological evidence covered by the DNA evidence preservation statutes is not limited to the "potentially
useful" category - cases might indeed arise in which the evidence is deemed "apparently exculpatory." 190 That
being said, a court cannot consider evidence to be "apparently exculpatory" in every circumstance; biological
evidence that would produce an exclusionary result exonerating the convicted individual exists in only a few cases.
191 Labeling all evidence covered by the DNA evidence preservation statutes as "apparently exculpatory" in every

case would simply ask too much of courts because, clearly, evidence cannot be "apparently exculpatory" in every
instance. 192 [*1275] Despite this limitation, while evidence covered by the DNA evidence preservation statutes
cannot always be presumed to be "apparently exculpatory," the evidence always can be presumed to be
"potentially useful" as defined by Youngblood. 193

175See Trombetta, 467 U.S at 488-89 (stating that the term "constitutional materiality" applies to "evidence that might be
expected to play a significant role in the suspect's defense").
176 See id.
177 To aid attorneys and scholars in the analysis of the material value of DNA evidence, the National Commission on the Future
of DNA Evidence created five categories in which DNA evidence can be placed. Nat'l Comm'n on the Future of DNA Evidence,
U.S. Dep't of Justice, Postconviction DNA Testing: Recommendations for Handling Requests 3-6 (1999) [hereinafter
Postconviction DNA Testing]. The five categories are as follows, and are based largely upon the exculpatory value of the DNA
evidence in any given case: (1) cases in which if biological evidence "is subjected to DNA testing or retesting, exclusionary
results will exonerate the petitioner"; (2) cases in which if biological evidence "is subjected to DNA testing or retesting,
exclusionary results would support the petitioner's claim of innocence, but reasonable persons might disagree as to whether the
results rule out the possibility of guilt or raise a reasonable doubt about guilt"; (3) cases in which if biological evidence "is
subjected to DNA testing or retesting, the results will not be relevant to a guilt or innocence determination"; (4) cases in which
"postconviction relief on the basis of DNA testing" is unavailable because "biological evidence was never collected, or cannot be
found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested"; and (5) "cases in which a
request for DNA testing is frivolous." Id.
178 Id. at 4. One such scenario is as follows:

Petitioner was convicted of a homicide. The evidence showed that the victim, who had been stabbed repeatedly, had resisted
fiercely and that a single perpetrator was involved. There were pools of blood leading from the crime scene. Standard blood
typing of the crime scene bloodstains showed that some samples were consistent with the blood of the victim and others were
consistent with the blood of the petitioner. The blood samples were retained. DNA testing that excludes the petitioner as a
source of the bloodstains would be dispositive of his innocence.
Id.
179 See Trombetta, 467 U.S. at 489; Cooper, 983 F.2d at 931.
 Page 22 of 32
2004 Wis. L. Rev. 1245, *1275

3. the dna evidence preservation statutes presume that every violation of the statutes constitutes "bad faith"

The final presumption created by the DNA evidence preservation statutes is that every violation of the statutes is
an act of "bad faith" on the part of the police. The Youngblood Court stated that actions suggesting "bad faith"
occurred when the "police themselves by their conduct indicate that the evidence could form a basis for exonerating
the defendant." 194 This, in turn, depends "on the police's knowledge of the exculpatory value of the evidence at
the time it was lost or destroyed." 195 In such cases, "bad faith" exists when the conduct of the police is outside the
scope of normal practice. 196

Youngblood's definition assumes that there are times in which the police will not know whether evidence was
material before the destruction of the evidence. 197 The DNA evidence preservation statutes eliminate this
assumption in two ways. First, by creating the affirmative duty to preserve all biological evidence taken from the
crime scene, the statutes put law enforcement agencies on notice that biological evidence is seen as important to
the administration of criminal justice. 198 Law [*1276] enforcement agencies therefore may not claim that they
were not aware that the destroyed evidence was "potentially useful."

Second, the statutes proscribe when the conduct of the police is outside the scope of normal practice. 199 The DNA
evidence preservation statutes explicitly outline the several duties the state needs to fulfill. 200 Most obviously, they
outline the state's duty to preserve all evidence collected during the course of a criminal prosecution that leads to a
conviction. 201 However, the statutes also outline the steps the state must take to validly destroy biological
evidence in its possession. 202 As a violation of the DNA evidence preservation statutes means that the state did
not abide by either the requirements of preservation or proper destruction of the evidence as outlined by the law, it
therefore indicates "bad faith." 203

Moreover, the argument that a violation of the statutes demonstrates "bad faith" does not contradict the Wisconsin
Court of Appeals's adoption of the "official animus" standard in Greenwold. 204 In fact, the court could not have

180Postconviction DNA Testing, supra note 177, at 5. An example provided by the National Commission on the Future of DNA
Evidence demonstrates one instance when evidence could be considered "potentially useful":

Petitioner was convicted of a homicide. The prosecution argued in closing that blood on a shirt found at petitioner's home came
from the victim. Standard blood typing had shown a match between the sample and the victim's blood. DNA testing that excludes
the victim as a source of the bloodstains might be helpful to petitioner's claims but does not prove that he was not guilty. How a
case such as this should be treated will depend on the role the bloody shirt played at petitioner's trial and the strength of the
other evidence against him.
Id.
181 488 U.S. at 57 n..
182 Id. at 57.
183 Id.
184See Trombetta, 467 U.S at 488-89 (stating that the term "constitutional materiality" applies to "evidence that might be
expected to play a significant role in the suspect's defense").
185 See Youngblood, 488 U.S. at 56 n..
186 Id. at 57.
187 See id. at 57; Postconviction DNA Testing, supra note 177, at 5.
188 See Youngblood, 488 U.S. at 58; see also Greenwold, 189 Wis. 2d at 67-68, 525 N.W.2d at 297.
189 See Youngblood, 488 U.S. at 58.
190 See supra note 178 and (discussing a scenario in which evidence is "apparently exculpatory" for the purposes of the DNA
evidence preservation statutes).
191 See Postconviction DNA Testing, supra note 177, at 4; supra note 178.
 Page 23 of 32
2004 Wis. L. Rev. 1245, *1276

meant that a violation of a state law does not demonstrate "official animus." In adopting the "official animus"
standard, the court of appeals went to great lengths to state that "bad faith" does not exist when the destruction of
evidence was due to [*1277] inadvertent or negligent actions on the part of the police. 205 However, this rejected
negligence standard was formulated to address only instances when evidence preservation was mandated by
noncodified law enforcement policy or when there was no policy mandating the preservation of evidence. 206 In
other words, the negligence standard that the court of appeals rejected was neither formulated, nor contemplated,
to address a law enforcement agency's failure to abide by state law that mandates evidence preservation.

By rejecting the negligence standard, the court of appeals could not have been rejecting the belief that a violation of
state law rises to the level of "official animus." It rather rejected only the sentiment that a negligent violation of police
policy regarding the preservation of evidence indicates "official animus." 207 This is not to say a Wisconsin court is
prevented from holding that a violation of state law is not an action indicating "official animus." This Comment
suggests, however, that a violation of state law goes well beyond the negligence standard that the "official animus"
requirement was formulated to replace. 208

B. The Resulting Factual Due Process Analysis in the Context of the DNA Evidence Preservation Statutes

The presumptions created by the DNA evidence preservation statutes shape the analysis that Wisconsin courts
should undertake when addressing violations of the statutes. This analysis remains largely unchanged from the
two-step analysis espoused in Greenwold. 209 The only exception is that, along with applying the facts of the case
to the two-step analysis, courts should apply the presumptions created by the DNA evidence statutes. These
presumptions have the effect of dictating [*1278] the ultimate outcome of the Trombetta and Youngblood tests by
dictating the issues located at the crux of the tests. Simply put, if one were to view the Trombetta and Youngblood
tests as algebraic equations, the presumptions transform the "variables" of the equation into "constant values." This
transformation, in turn, forces the analyses to reach the same result every time they are undertaken: every violation
of the DNA evidence preservation statutes results in a violation of a convicted individual's due process rights. 210

192 See Postconviction DNA Testing, supra note 177, at 4; supra note 178. Moreover, it appears difficult for a convicted
individual to prove the state was aware of the exculpatory value of the evidence at the time of the DNA evidence preservation
statutes' violation. See Trombetta, 467 U.S at 488-89; Greenwold, 189 Wis. 2d at 68-69, 525 N.W.2d at 297-98. A factual
inquiry surrounding the preservation of the evidence would have to occur to determine whether the apparent exculpatory value
was suggested to law enforcement agents or whether government agents recognized that the evidence has exculpatory value.
See Cooper, 983 F.2d at 931. For instance, internal memoranda or instructions from the court regarding storage of evidence and
the role that it played at trial may reveal that the state was keenly aware of the importance of the destroyed evidence. However,
unless a convicted individual can demonstrate that the evidence was destroyed when the state had knowledge of the
exculpatory value of the evidence, it is unlikely that a court will determine that the evidence was "apparently exculpatory." This is
not meant to suggest that a convicted individual will never be able to prove that the state was aware of the exculpatory nature of
the destroyed biological evidence. Indeed, there may be cases where the state was clearly aware of the exculpatory nature of
the evidence before its destruction, thus creating the circumstance that a violation of the Trombetta preservation doctrine clearly
occurred. This statement is meant only to further the argument that the DNA evidence preservation statutes do not create the
presumption that all biological evidence covered by the statutes is "apparently exculpatory" as defined by Trombetta. See 467
U.S. at 488-89.
193 See Youngblood, 488 U.S. at 56 n., 57 (stating that "potentially useful" evidence simply provides "an avenue of investigation
that might have led in any number of directions," and that "no more can be said than that it could have been subjected to tests,
the results of which might have exonerated the defendant")
194 Id. at 58.
195 Id. at 57 n..
196 Id. at 56-58.
197 See id. at 58.
198 See Wis. Stat. 165.81(3), 757.54(2), 968.205(2), 978.08(2).
 Page 24 of 32
2004 Wis. L. Rev. 1245, *1278

The first step of the Greenwold analysis is an examination according to the first two prongs of the Trombetta test:
whether the destroyed evidence was "apparently exculpatory." 211 This examination would ask in this context, if the
destroyed evidence was subjected to testing or retesting, whether exclusionary results would exonerate the
petitioner, and whether the government was made aware of this fact. 212 The third prong of the Trombetta test -
whether the convicted individual had access to comparable evidence through reasonable alternative means - is
essentially irrelevant in this context because the convicted individual will rarely have access to comparable
biological evidence. 213

[*1279] If the state failed to preserve evidence that was indeed "apparently exculpatory," and if the state was
aware of that exculpatory value, then the court must vacate the conviction. 214 However, as stated above, evidence
cannot always be deemed "apparently exculpatory." 215 If the destroyed evidence is not deemed to be "apparently
exculpatory," then courts would apply the Youngblood test under step two of the Greenwold analysis. 216

Under the Youngblood test, courts would examine whether the evidence was "potentially useful," and if so, whether
the police acted in "bad faith" when destroying the evidence. 217 By virtue of the presumptions created by the DNA
evidence preservation statutes, the evidence must be considered "potentially useful." 218 This would then trigger
the examination for "bad faith." 219 As stated above, "bad faith" [*1280] is presumed to exist every time one of the
statutes is violated because a violation of the statutes means that a law enforcement agency acted outside the
scope of its normal practice by destroying evidence which it knew had to be preserved according to Wisconsin law.
220

Essentially, the presumptions created by the DNA evidence preservation statutes reduce the Greenwold analysis to
ask only one question: was "apparently exculpatory" evidence destroyed? If the answer is yes, then a violation of
due process has occurred when the state violates the DNA evidence preservation statutes. 221 But, as it turns out,
it is not necessary to answer this question. Even if the destroyed evidence is not "apparently exculpatory," the

199 See id.

200 See id.
201 See id. 165.81(3)(b), 757.54(2), 968.205(2), 978.08(2).
202 See id. 165.81(3)(c)1., 757.54(2)(c)1., 968.205(3)(a), 978.08(3)(a) (stating that before law enforcement agencies destroy any
evidence collected under the DNA evidence preservation statutes, they must first give notice to the incarcerated individual, and
that individual's attorney or the state public defender); id. 165.81(3)(d), 757.54(2)(d), 968.205(4), 978.08(4) (stating that the
notice must clearly inform the recipient that the biological material will be destroyed unless the person receiving the notice either
files a motion for testing of biological material or submits a written request to preserve the biological material within ninety days
of receiving the notice); id. 165.81(3)(c)2.-3., 757.54(2)(c)2.-3., 968.205(3)(b)-(c), 978.08(3)(b)-(c) (stating that law enforcement
agencies may destroy the evidence only if the parties fail to request continued preservation or do not file a motion for testing
after ninety days of receiving notice of the pending destruction of evidence, and if there is no other federal or state law that
requires the preservation of the biological material).
203 Note, however, that "bad faith" may not be present in every case of the state's failure to preserve evidence according to the
literal language of the DNA evidence preservation statutes. Despite the state's best attempts to preserve evidence covered by
the DNA evidence preservation statutes, an "Act of God," such as a natural disaster or a terrorist attack, can destroy the
evidence by destroying the very facility where the evidence was being preserved. It appears unlikely that "bad faith" would
surround the destruction of evidence under such circumstances, as the state cannot be faulted for failing to preserve the
evidence in such an unforeseen event beyond its control.
204 See 189 Wis. 2d at 69, 525 N.W.2d at 298; see also supra notes 146-48 and accompanying text.
205 See Greenwold, 189 Wis. 2d at 69, 525 N.W.2d at 298; see also supra notes 146-48 and accompanying text.
206 See Greenwold, 189 Wis. 2d at 69, 525 N.W.2d at 298; supra notes 143-45 and accompanying text; cf. Holdren, 16 F.3d at
60 (holding that physicians, in acting as agents of the state, did not act in "bad faith" when following "standard procedures in
collecting, analyzing, and disposing of" evidence); Femia, 9 F.3d at 991-92, 994 (holding that the accidental destruction of audio-
cassette tapes that was in accordance with official authorization did not constitute "bad faith"); Montgomery, 956 F.2d at 680-81
(holding "bad faith" was not evident by the police losing photographs in an "unprofessional" manner); Sanders, 954 F.2d at 231
 Page 25 of 32
2004 Wis. L. Rev. 1245, *1280

presumptions created by the DNA evidence preservation statutes act as a "catchall." Accordingly, the presumptions
lead to the determination that all evidence covered by the statutes is "potentially useful." Moreover, a violation of the
statutes will always occur in situations that suggest "bad faith." 222 Therefore, at a minimum, every time the DNA
evidence preservation statutes are violated, the Youngblood preservation doctrine is violated as well. 223

C. The Implications and Origins of the Per Se Due Process Violation

Under the factual analysis dictated by the presumptions created by the DNA evidence preservation statutes, a
violation of the statutes always results in a due process violation. According to federal and state due process
jurisprudence regarding the state's duty to preserve evidence, the appropriate remedy for a violation of the DNA
evidence [*1281] preservation statutes is therefore always reversal of conviction.

The implication of the per se due process violation remedy cannot be fully appreciated until one realizes that the
DNA evidence preservation statutes cover all biological evidence that is collected "in connection" with a criminal
prosecution. 224 This means that any evidence collected by the police, regardless of its materiality at the time that it
was collected, is covered by the statutes. Moreover, this means that the destruction of this evidence, regardless of
its materiality at the time of its preservation, constitutes a violation of due process. 225 The irony lies in the fact that
the U.S. Supreme Court has been unwilling to read the Due Process Clause to impose an "undifferentiated and
absolute duty to retain and to preserve" all biological evidence that may possess some exculpatory value. 226
Applying due process jurisprudence to violations of the DNA evidence preservation statutes, however,
accomplishes exactly that.

A variety of factors - ranging from the construction of the statute to the ambiguity of the federal evidence
preservation doctrines - contribute to the per se due process violation. The first factor is the Wisconsin legislature's
failure to provide a remedies section in the statutes. The Wisconsin legislature could have avoided the result of the
per se due process violation by simply specifying what remedies are available to convicted individuals upon
violations of the DNA preservation statutes. 227 However, the legislature did not do so, forcing Wisconsin [*1282]

(holding that, in the destruction of a video tape, the FBI did not act in "bad faith" when the tape was destroyed while in the
possession of a commercial processing firm with which the FBI had a working relationship for over "fifteen years").
207 See Holdren, 16 F.3d at 60; Femia, 9 F.3d at 992, 995; Montgomery, 956 F.2d at 680-81; Sanders, 954 F.2d at 231.
208 See Greenwold, 189 Wis. 2d at 69, 525 N.W.2d at 298; supra notes 143-48 and accompanying text.
209 See 189 Wis. 2d at 67-68, 525 N.W.2d at 297.
210 Professors Findley and Pray have suggested to me a violation of the DNA evidence preservation statutes does not equate a
violation of a convicted individual's due process rights. They rather suggest that a violation of the DNA evidence preservation
statutes should merely create a rebuttable presumption of "bad faith" that could be overcome by a preponderance of the
evidence to the contrary. However, this suggestion does not take into account two aspects of both the DNA evidence statutes
and the Trombetta-Youngblood evidence preservation tests. First, as stated in the above text, the statutes codify the scope of
conduct police are required to undertake when preserving biological conduct. Destruction of evidence that occurs outside of that
scope of conduct automatically equates "bad faith" according to Youngblood. See 488 U.S. at 56-58. Second, the Youngblood
test does contemplate allowing the state to rebut a finding of "bad faith." See id. In any event, according to the Youngblood test,
anytime that a law enforcement agency acts outside of its scope of conduct - such as violating a law that mandates police
activity - "bad faith" exists, and cannot be rebutted. See id.
211 Greenwold, 189 Wis. 2d at 67, 525 N.W.2d at 297; see also Trombetta, 467 U.S at 488-89.
212 Postconviction DNA Testing, supra note 177, at 4; supra note 178 and accompanying text.
213 467 U.S. at 489. The most probable scenario of when comparable evidence is available to the convicted individual despite a
violation of the DNA evidence preservation statutes is when the state outsources the DNA testing to an independent laboratory.
If that independent laboratory preserves the samples used in the course of DNA testing despite the state's failure to preserve the
biological material in its possession, the defendant might have the opportunity to request the testing of the samples in the
laboratory's possession. However, this scenario also assumes a number of facts. First, it assumes that either the convicted
individual or the state is aware of the independent laboratory's protocol regarding the preservation of its working samples, and if
 Page 26 of 32
2004 Wis. L. Rev. 1245, *1282

courts to at least consider utilizing due process jurisprudence to fashion a remedy for a convicted individual when
the DNA evidence preservation statutes are violated.

The second factor contributing to the per se due process violation is the plain language of the statutes themselves.
As written, the DNA evidence preservation statutes consider a wide range of evidence as being "potentially useful."
The fact that the state has the duty to preserve any biological material collected "in connection with a criminal
investigation that resulted in a criminal conviction" automatically presumes that any evidence collected merely in
connection with an investigation may someday yield probative value. 228 The sheer scope of the evidence covered
by the statutes is mind-boggling, and the application of this language holds serious unintended consequences. For
instance, under the per se due process violation, the destruction of [*1283] biological evidence used to prove the
guilt of an individual would result in a violation of due process. After all, the statutes do not differentiate between
evidence used by the prosecution or by the defense; the statutes only require that the state collects the evidence "in
connection" with the criminal prosecution. 229

By mandating the preservation of any biological evidence collected in "connection with" a criminal conviction, the
statutes have no minimum requirements that the biological evidence must meet to qualify for preservation and be
deemed "potentially useful." Namely, the statutes do not require evidence to meet a minimum level of materiality to
be preserved. The statutes rather require the state to preserve all biological evidence collected "in connection" to a
criminal prosecution, 230 regardless of whether that evidence is material or immaterial to that criminal prosecution.
Likewise, the statutes do not require evidence to come from the crime scene, or even from the general proximity of
the crime scene, to be preserved. Again, the state could collect the evidence from anywhere on Earth; if the state
collects that evidence "in connection" with the criminal investigation, the evidence would nonetheless qualify for
preservation under the statutes. 231 Taken to their logical extreme, the statutes would extend to a wide-range of
biological evidence, no matter how material it is, and no matter where the evidence was recovered from, as long as
it was "in connection" with the criminal investigation. 232 And, the destruction of such an ancillary piece of evidence
would yield an outrageous result: the violation of the convicted individual's due process rights.

such samples are indeed available to testing. Second, it assumes that the DNA evidence preservation statutes do not apply to
the independent laboratories in the first place. As stated above, section 165.81(3) extends the duty to preserve all biological
evidence to state crime laboratories. Supra note 26 and accompanying text. An argument could be made that, as acting as an
agent of the state through the state's outsourcing of the DNA testing, the independent laboratory could be subject to the same
duty to preserve biological evidence that is placed upon state crime laboratories. Therefore, a failure on the part of an
independent laboratory to preserve any working samples could also be seen as a violation of the DNA evidence preservation
statutes. Moreover, as it is unlikely that any other agency outside of the state would have access to the biological evidence other
than an independent laboratory, it is difficult to imagine where the convicted individual could turn to find biological evidence
comparable to the evidence lost or destroyed by the state. Therefore, if the biological evidence is not found in the possession of
either the state agencies directly named in the DNA evidence preservation statutes or the independent state agencies, it is a
safe assumption that the convicted individual will not be able to access evidence comparable to the evidence that was
destroyed.
214 See Trombetta, 467 U.S. at 488-89; supra note 178 and accompanying text (discussing what constitutes "apparently
exculpatory" in the context of the DNA evidence preservation statutes and giving an example of a case in which DNA evidence is
considered "apparently exculpatory"). Note that the "Act of God" exemption addressed above also applies here. See supra note
203. Despite the state's best attempts to preserve evidence covered by the DNA evidence preservation statutes, an "Act of
God," such as a natural disaster or terrorist attack, can destroy the evidence by destroying the very facility where the evidence
was being preserved. See id. It appears unlikely that the state would be held liable under the DNA evidence preservation
statutes for the destruction of evidence under such circumstances, as the state cannot be faulted for failing to preserve the
evidence in such an unforeseen event beyond its control. See id.
215 Supra notes 154-58 and accompanying text.
216 Youngblood, 488 U.S. at 56-58 (examining the material value of the destroyed evidence before examining whether the
evidence was destroyed in circumstances that suggested "bad faith"); Greenwold, 189 Wis. 2d at 67-68, 525 N.W.2d at 297; see
also Parker, 2002 WI App 159, P 14, 256 Wis. 2d at 160, 647 N.W.2d at 433.
 Page 27 of 32
2004 Wis. L. Rev. 1245, *1283

The plain language of the DNA evidence preservation statutes also essentially creates a strict liability duty to
preserve the evidence. The language greatly broadens the scope of what constitutes "bad faith" [*1284] when the
statute is violated and evidence is destroyed; indeed, it expands the definition of "bad faith" while not contradicting
the "official animus" requirement adopted by Wisconsin courts. 233 Had the Wisconsin legislature required a
specific demonstration of intent to prove a violation of the DNA evidence preservation statutes, it would have greatly
narrowed the scope of actions that indicate "bad faith." 234 This would have the effect of precluding courts from
finding a violation of a convicted individual's due process rights merely because the DNA evidence preservation
statutes are violated.

The third factor contributing to the per se due process violation is the Wisconsin courts' extension of the Trombetta
and Youngblood tests to postconviction litigation in Parker. 235 Given the legislature's silence regarding the
remedies available to convicted individuals for violations of the DNA evidence preservation statutes, Parker's
extension of Trombetta and Youngblood makes those tests viable methods for addressing violations of the statutes.
Had Wisconsin courts not extended this line of constitutional reasoning, the courts would have no foundation to
expand Trombetta and Youngblood to the postconviction stage.

The final factor contributing to the per se due process violation is the U.S. Supreme Court's ambiguous - and
arguably flawed - preservation standards announced in Trombetta and Youngblood. The vague definitions of
"apparently exculpatory" and "potentially useful," as well as the equally ambiguous "bad faith" standard, provide
little guidance in situations where state law mandates a law enforcement agency's duty to preserve evidence.
Whether these definitions will stand the test of time remains to be seen, especially in the context of fashioning
remedies for violations of DNA evidence preservation statutes. As twenty-two jurisdictions other than Wisconsin
have enacted DNA preservation statutes, 236 it appears probable that the Court will address this issue in the future.

217 488 U.S. at 56-58; Greenwold, 189 Wis. 2d at 67-68, 525 N.W.2d at 297; see also Parker, 2002 WI App 159, P 14, 256 Wis.
2d at 160, 647 N.W.2d at 433.
218 Supra Part III.A.2 (discussing how the DNA evidence preservation statutes create the presumption that all biological
evidence covered by the statues is "potentially useful").
219 See Youngblood, 488 U.S. at 56-58.
220See Youngblood, 488 U.S. at 56-58; supra Part III.A.3 (discussing how the DNA evidence preservation statutes create the
presumption that each violation of the statutes constitutes "bad faith" on the part of the state).
221 Trombetta, 467 U.S. at 488-89; Greenwold, 189 Wis. 2d at 68-69, 525 N.W.2d at 297-98.
222 See Youngblood, 488 U.S. at 56-58; Trombetta, 467 U.S. at 488-90; Greenwold, 189 Wis. 2d at 67-70, 525 N.W.2d at 297-
98. It is also worth noting that the timing of the violation of the DNA evidence preservation statutes also may affect the outcome
of the due process analysis. Specifically, the analysis is greatly affected by whether the violation of the statutes occurred before
or after a motion to test DNA under section 974.07 is granted by a court or stipulated to by the prosecution. This timing adds to
the determination of whether the evidence can be considered "apparently exculpatory" or "potentially useful" and whether a
better claim of "bad faith" can be made. In order for a section 974.07 motion to be granted, the movant must demonstrate that
the evidence was relevant to the investigation or prosecution that resulted in the conviction and that had DNA testing taken place
before the prosecution, it is reasonably probable that the movant would not have been prosecuted or convicted. See Wis. Stat.
974.07(7)(a)2. In other words, the statute hypothesizes DNA test results that are favorable to the convicted individual. See id.
Therefore, the evidence must be considered, for all intents and purposes, at least "potentially useful," and depending on the
facts of the particular case, "apparently exculpatory" in some circumstances. Second, the timing could determine whether the
destruction of the biological evidence in violation of the DNA evidence preservation statutes demonstrates "bad faith." Once the
 Page 28 of 32
2004 Wis. L. Rev. 1245, *1284

If - and when - the Court does address this issue, hopefully it will provide guidance that will not only apply to the
DNA evidence preservation statutes, but also clarify the evidence preservation doctrines in general.

[*1285]

IV. The Per Se Due Process Violation: A Cause for Legislative Clarification

The adoption of the per se due process violation by a court would undoubtedly be controversial. Both opponents
and proponents of the result would argue over its propriety, and the policy implications of the result amply support
both sides. As this controversy stems from the failure of the Wisconsin legislature to provide for a remedy for
convicted individuals for violations of the DNA evidence statutes, the legislature should address the controversy
directly. It should clarify its position and state what remedy, if any, is available to convicted individuals upon
violation of the DNA evidence preservation statutes, and thereby remove the possibility of the per se due process
violation being adopted by courts.

By adding a remedies section to the DNA evidence preservation statutes, the legislature would be recognizing that
the per se due process violation is an unacceptable remedy. 237 Just the bare implication of the remedy - namely,
that it applies to all evidence collected in connection to a criminal investigation - creates a logistical and
administrative nightmare for law enforcement agencies and courts to comply with the preservation standard. Absent
an event beyond the control of the law enforcement agency that results in the destruction of the evidence, 238 any
time that the state fails to preserve evidence in violation of the DNA evidence preservation statutes, a violation of
due process occurs.

motion is granted or stipulated to, the state is officially made aware that the evidence is, at least, "potentially useful." The fact
that the motion was granted or stipulated to demonstrates that either the court or the prosecution agrees with this assessment of
exculpatory value, and that the state is therefore given notice of that assessment. This adds to an argument for the presence of
"bad faith" surrounding the destruction of the evidence. Simply put, once it is determined that DNA testing will occur, the law
enforcement agencies are aware that the evidence in question could form a basis for the exoneration of a defendant, thus
making it aware "of the exculpatory value of the evidence at the time it was lost or destroyed." See Youngblood, 488 U.S. at 57
n.. The circumstances surrounding the destruction could therefore suggest "bad faith," resulting in a due process violation. See
id.
223 See Youngblood, 488 U.S. at 56-58; Greenwold, 189 Wis. 2d at 67-70, 525 N.W.2d at 297-98.
224 See Wis. Stat. 165.81(3)(b), 968.205(2), 978.08(2) (emphasis added); see also id. 757.54(2)(b) (stating that the DNA
evidence preservation statutes extend to biological material collected "in connection with the [criminal] action or [delinquency]
proceeding").
225 See supra Part III.B.
226 Youngblood, 488 U.S. at 58.
227 It is unknown whether a statutory remedy that provides for less than reversal of conviction would also be a violation of
incarcerated individuals' due process rights. Such an examination would most likely center around a cause of action similar to
what is deemed a Bivens claim, stemming from the case Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics. 403 U.S. 388 (1971).
In Bivens, the U.S. Supreme Court held that a constitutional cause of action against federal officials is proper when necessary to
vindicate constitutional guarantees. Id. at 397; see also David C. Nutter, Note, Two Approaches to Determine Whether an
Implied Cause of Action Under the Constitution Is Necessary: The Changing Scope of the Bivens Action, 19 Ga. L. Rev. 683,
683-85 (1985) (noting that initially Bivens actions were frequently allowed because "many federal statutes provided partial
redress to civil rights claimants, but rarely did such statutes offer a remedy as effective as damages"). These constitutional
causes of action may be extended to state officials through a claim filed according to 42 U.S.C. 1983. See supra note 84
(discussing the possible applicability of 1983 to formulate remedies for violations of Wisconsin's DNA evidence preservation
statutes).
However, the Supreme Court has been hesitant to expand the applicability of Bivens claims. In Correctional Services Corp. v.
Malesko, for example, the Court held that only two circumstances warrant an extension of Bivens: "to provide an otherwise
 Page 29 of 32
2004 Wis. L. Rev. 1245, *1285

Beyond the remedy's expansive scope, it also disregards victims and their families by creating the possibility of
freeing a truly guilty individual because of the mere incompetence of law enforcement agencies. Not only does this
possibility carry with it its own sense of injustice, it jeopardizes the public safety by prematurely releasing an
adjudicated criminal into society. In addition, this result mocks the criminal justice system by effectively making trial
courts' determinations of both law and fact irrelevant and ignoring juries' official determinations of guilt.

Moreover, the per se due process violation creates a heavy burden on the criminal justice system. It places the duty
on the state to ensure that the convicted individual's right to biological access is preserved after conviction, and, in
theory, that the convicted individual can request DNA testing an unlimited number of times. 239 In so doing, the per
se [*1286] due process violation contradicts one of the primary policies that underlie postconviction litigation: the
need for finality. Traditionally, the judicial system has taken a very restrictive approach when addressing criminal
issues at the postconviction stage to preserve finality in litigation. Wisconsin courts are by no means an exception
to the rule. 240

In sum, the per se due process violation is simply drastic and flawed. As is, it is unlikely that courts will not view it as
a viable option when addressing violations of the DNA evidence preservation statutes. Due to all of the opposition
that would arise to a court's adoption of the remedy, it is unlikely that a court would be willing to spend its political
capital on such an extreme result. In fact, because the per se due process violation stems from the lack of guidance
from the Wisconsin legislature regarding remedies for convicted individuals, courts should refrain from adopting a
remedy and rather allow the legislature to clarify what remedy it intended to provide.

That is not to say that there are no compelling arguments in favor of the per se violation, or that a court would never
be swayed by those arguments. Proponents of the result would argue that, while the per se due process violation is
an extreme remedy, it is nonetheless needed. The preservation and testing of DNA evidence is, after all, an
effective safeguard against wrongful convictions, a problem in the criminal justice system that is more prevalent that
one might think. Several notable commentators have estimated that every year, 8500 wrongful convictions occur in

nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for
a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct." 534 U.S. 61,
70 (2001). Therefore, under Malesko, courts may be hesitant to formulate a new remedy when one is already statutorily
provided. See also Andrea Robeda, The Death of Implied Causes of Action: The Supreme Court's Recent Bivens Jurisprudence
and the Effect on State Constitutional Tort Jurisprudence: Correctional Services Corp. v. Malesko, 33 N.M. L. Rev. 401, 401-02
(2003); Nutter, supra, at 685 ("The Court permits a Bivens action only if the claimant faces a "damages or nothing'
situation.").Any examination of the applicability of a Bivens claim - or any action similar to a Bivens claim - to violations of
Wisconsin's DNA evidence preservation statutes is well beyond the scope of this Comment. This Comment, rather, argues that
because of the lack of guidance from the Wisconsin legislature and other jurisdictions, Wisconsin courts will have to turn to
Trombetta and Youngblood to formulate an appropriate remedy for violations of the DNA evidence preservation statutes.
228 See Wis. Stat. 165.81(3)(b), 968.205(2), 978.08(2); see also id. 757.54(2)(b) (stating that the DNA evidence preservation
statutes extend to biological material collected "in connection with the [criminal] action or [delinquency] proceeding").
229 See id. 165.81(3)(b), 757.54(2)(b), 968.205(2), 978.08(2). Using DNA to prove the guilt of a criminal defendant has become
increasingly prevalent, especially with sexual assaults. In fact, law enforcement agencies have indicted individuals for sexual
assaults solely on the basis that their DNA profile matched the DNA taken from the victim of the sexual assault, even when the
identity of the perpetrator of the assault was originally unknown. See Sabrina Tavernise, Police, Tracing "John Doe' DNA, Name
Suspect in Old Sex Crime, N.Y. Times, Oct. 28, 2004, at A1. Such "John Doe" sex crime indictments have become increasingly
commonplace, and states such as Wisconsin, Illinois, and California have provided legislation to freeze the statute of limitations
for sexual assaults to allow more time for prosecutors to seek "John Doe" indictments. See id. In New York City alone, fifty "John
Doe" indictments were issued in the past four years. Id.
230 See. id. 165.81(3)(b), 968.205(2), 978.08(2); see also id. 757.54(2)(b).
231 See. id. 165.81(3)(b), 968.205(2), 978.08(2); see also id. 757.54(2)(b).
232 See. id. 165.81(3)(b), 968.205(2), 978.08(2); see also id. 757.54(2)(b).
233 See Greenwold, 189 Wis. 2d at 68-69, 525 N.W.2d at 297-98.
 Page 30 of 32
2004 Wis. L. Rev. 1245, *1286

the United States. 241 And, while most of these wrongful convictions do not involve DNA evidence, for those that
do, [*1287] DNA technology is the most effective method to combat these manifest injustices.

In fact, since courts first accepted DNA as evidence in 1986, it has become "the foremost forensic technique for
identifying perpetrators, and eliminating suspects, when biological tissues such as saliva, skin, blood, hair, or
semen are left at a crime scene." 242 And, in this role, "[a] remarkable feature of DNA testing is that it not only
helps to convict but also serves to exonerate." 243 For instance, in 1995, a "survey of laboratories reported that
DNA testing excluded suspects in about one-fourth to one-fifth of the cases" in those instances where DNA was
available to test. 244 Additionally, as of November 28, 2004, exclusionary DNA testing results have exonerated 153
wrongly convicted individuals in the United States alone. 245

The strongest argument for the proponents of the per se due process violation would focus on perhaps the most
remarkable aspect of DNA technology: its constant evolution and progress that always provides the promise of
someday being able to yield a result where one was before unobtainable. As the National Commission on the
Future of DNA Evidence noted:

The technological progress that occurred in the 1990s now makes it possible to obtain conclusive results in cases
in which previous testing had been inconclusive. Consequently, postconviction testing will be requested not only in
cases in which DNA testing was never done, but also in cases in which a newer, more sensitive technology may
now be able to furnish a conclusive answer. 246

The Wisconsin legislature, by enacting the DNA evidence preservation statutes, has embraced the potential of
DNA technology by codifying the state's faith in DNA technology to right wrongful convictions. The DNA evidence
preservation statutes therefore ensure that DNA technology is able to meet its fullest potential by preserving the
rights of wrongfully convicted individuals to pursue one of the most effective - and in many cases, only - avenues
available to prove their innocence. 247

234 However, requiring an "official animus" element would contradict the very essence of the DNA evidence preservation
statutes: to ensure that DNA testing can occur if an incarcerated individual fulfills the requirements of section 978.08.
235 Parker, 2002 WI App 159, PP 13-14, 256 Wis. 2d at 160, 647 N.W.2d at 433.
236 See supra note 73 and accompanying text.
237 This is one point that Findley and Pray agree with.
238 See supra notes 203, 214 (discussing the "Act of God" exceptions to the per se due process remedy)
239 I suggest here that the convicted individual may be able to request DNA testing an unlimited number of times because the
technology used to test DNA is constantly changing and improving. According to section 974.07 of the Wisconsin Statutes, a
court may grant DNA testing if the convicted individual can demonstrate that new technology utilizes a scientific technique that
was not previously available or was not utilized, or that the new method of testing also provides a reasonable likelihood of more
accurate and probative results. Wis. Stat. 974.07(2)(c).
240See, e.g., State v. Escalona-Naranjo, 185 Wis. 2d 168, 185 517 N.W.2d 157, 163 (1994) ("We need finality in our litigation.");
State v. Walberg, 109 Wis. 2d 96, 104, 325 N.W.2d 687, 691-92 (1982). As the Wisconsin Supreme Court stated in Walberg:

Because the conviction being challenged has been secured in a proceeding whereby the defendant was protected by the
beyond a reasonable doubt standard of proof, and the motion is available only after other postconviction remedies have been
unsuccessful or not utilized, public policy requires that the defendant bear the heavier burden in order to get relief from such a
finalized conviction. The clear and convincing burden of proof is required to further the public policy of finality of judgments after
the defendant has been given ample opportunity to challenge the conviction by direct remedies.
109 Wis. 2d at 104, 325 N.W.2d at 691-92.
 Page 31 of 32
2004 Wis. L. Rev. 1245, *1287

[*1288] Finally, the proponents would argue that the per se due process violation recognizes the power of DNA
technology to overcome the inherent flaws of the criminal justice system. The objectivity of DNA technology
provides a counter to the bias that may be present in judges and juries, 248 as well as the inherent weaknesses of
eyewitness testimony. 249 The power of DNA is that, in certain circumstances, cold and objective scientific proof
can exonerate an individual of a crime, as well as implicate the true perpetrator of a crime. This, in turn, removes
human bias and error, leaving a result as close to the absolute truth as is obtainable through science.

The ability to preserve the opportunity to overcome these shortcomings of the criminal justice system is therefore of
the utmost importance, and should be enforced by the strongest means possible. Indeed, proponents of the per se
due process violation would argue that the destruction of DNA evidence in violation of state law should result with
the only appropriate remedy: the per se due process violation.

As one can see, there are compelling policy interests both supporting and opposing the per se due process
violation. Undoubtedly, the DNA evidence preservation statutes are a wonderful means to protect against wrongful
incarceration - just ask Christopher Ochoa and Steven Avery about the power of preserved biological evidence.
However, it cannot be denied that a remedy in which a violation of the evidence preservation statues results in a
violation of due process rights is simply too harsh and controversial for a court to adopt.

The policy debate surrounding the per se due process violation is exacerbated since it is unclear how the Wisconsin
legislature intended for courts to address violations of the statutes. Since this ambiguity [*1289] stems from the
Wisconsin legislature not contemplating remedies for convicted individuals for violations of the DNA evidence
preservation statutes, 250 the legislature should clarify its position on this issue of remedies 251 by adding a

241See Dr. Elizabeth Loftus & Katherine Ketcham, Witness for the Defense: The Accused, the Eyewitness, and the Expert Who
Puts Memory on Trial, Wis. Defender, Aug. 1998, at 6 (citing the doctoral dissertation by Arye Rattner entitled Convicting the
Innocent: Where Justice Goes Wrong).
242 Postconviction DNA Testing, supra note 177, at 1.
243 Id. at 2.
244 Id.
245 See The Innocence Project, at http://www.innocenceproject.org (last visited Nov. 28, 2004).
246 Postconviction DNA Testing, supra note 177, at 2.
247 Cf. supra note 84 (suggesting that an additional avenue of recourse may be civil litigation based on a 1983 civil rights claim).
248 The recent exoneration of Avery provides some valuable insight into how juror bias can contribute to wrongful convictions.
See Kertscher, supra note 4, at 1A; supra Introduction. On September 11, 2003, Avery was released from prison after results
from DNA testing on thirteen hairs preserved from the crime scene excluded him as the perpetrator of a sexual assault and
implicated the true perpetrator of the crime. Kertscher, supra note 4, at 1A. One former juror from the Avery trial, Violet Hansen,
indicated to the Milwaukee Journal Sentinel that she believed that Avery was guilty even before weighing the evidence
presented: ""I thought from the beginning that he was guilty.'" Id.
249 See Fredric D. Woocher, Note, Did Your Eyes Deceive You? Expert Psychological Testimony of the Unreliability of
Eyewitness Identification, 29 Stan. L. Rev. 969, 970 (1977) ("Although improper suggestive procedures used by law enforcement
officials in procuring identification evidence account for many mistaken identifications, the great majority probably are attributable
 Page 32 of 32
2004 Wis. L. Rev. 1245, *1289

remedies section to the statutes. 252 It is only then that the policies supporting and opposing the per se remedy will
be addressed fully, and the welfare and constitutional rights of free and convicted individuals will be given the
consideration they deserve.

V. Conclusion

Without a doubt, Wisconsin's DNA evidence preservation statutes are wonderful provisions. Taken together with
section 974.07, Wisconsin law provides, under certain circumstances, a convicted individual the right to obtain DNA
testing to prove his or her innocence. There is no DNA evidence preservation statute in the nation that is as
comprehensive as Wisconsin's. As postconviction DNA testing is the foremost method to detect and rectify wrongful
convictions, the Wisconsin legislature should be proud to have extensively codified the ability for a convicted person
to prove his or her innocence.

That is not to say that the Wisconsin legislature should begin patting itself on the back quite yet. As the legislature
failed to provide remedies for convicted individuals for violations of the DNA evidence preservation statutes, they
created an unintended result: with no guidance from the legislature, courts are left to reach the result that there is a
violation of the convicted individual's due process rights whenever the statutes are violated. While compelling
arguments support this result, its sheer extremity makes it unacceptable. The Wisconsin legislature should
therefore revisit the DNA evidence preservation statutes and provide a remedies section that addresses whether a
remedy for convicted individuals is available in the event of the statutes' violation. The Wisconsin legislature should
finish what it started, and reach a result more conducive to the criminal justice system, [*1290] postconviction
litigation, and society as a whole by providing a remedy that is not as extreme as the per se due process violation.

Wisconsin Law Review

Copyright (c) 2004 University of Wisconsin Law School

End of Document

both to the inherent unreliability of human perception and memory and to human susceptibility to unintentional, and often quite
subtle, suggestive influences."); Loftus & Ketcham, supra note 241, at 5 ("Although witnesses try hard to identify the true
criminal, when they are uncertain - or when no one person in the lineup exactly matches their memory - they will often identify
the person who best matches their recollection of the criminal. And often their choice is wrong.").
250 See supra Part I.A.
251 Of course, it would be entirely up to the legislature to provide any remedies to convicted individuals. The legislature could
easily state that no remedies are available to convicted individuals in the event the statutes are violated. For example, the
legislature could amend the DNA evidence preservation statutes to include the language, "a violation of these statutes should
not be construed to indicate a violation of an incarcerated individual's right to due process under either the Wisconsin
Constitution or U.S. Constitution."
252 Again, it is unclear as to whether a violation of the DNA evidence preservation statutes would still be a violation of due
process even with the presence of a remedies section in the statutes, but such an examination is beyond the scope of this
Comment. See supra note 227 (discussing the applicability of a Bivens claim to violations of DNA evidence preservation statutes
that provide remedies for incarcerated individuals).