BLOOD, SWEAT, AND TEARS: THE PATH TO
MODERNIZING THE FRAGMENTED DNA

EVIDENCE PROCEDURES IN INDIANA

MARY CATE PACHCIARZ*

INTRODUCTION

On April 21, 1992, a young woman was raped behind an abandoned building
in Muncie, Indiana.1 Soon after, police stopped thirty-five-year-old William
Barnhouse and made him stand in front of several squad cars in an identification
technique in which the victim identified him.2 Based on this procedure,
Barnhouse was arrested.3 Known as a one-on-one show-up, this technique “has
been described as the most suggestive identification procedure ever used.”4

At trial, the State’s case rested “on the show-up identification as well as the
testimony of a forensic serologist” that Barnhouse could not be disqualified as a
source of the semen recovered from the victim—evidence later disproven by
DNA tests.5 Moreover, a hair analyst testified that a hair recovered from the
victim’s body “matched” Barnhouse because the analyst could not pick out the
victim’s hair from “a pile of Barnhouse’s pubic hair.”6 Though the State asserted
that the hair analysis was a “silent witness” proving Barnhouse’s guilt,7 the FBI
has since acknowledged forensic hair analysis is flawed science.8 Barnhouse was
found guilty but mentally ill of rape and criminal deviate conduct and sentenced
to eighty years in prison.9 

* J.D. Candidate, 2022, Indiana University Robert H. McKinney School of Law; B.S.,

2019, Indiana University – Bloomington, Indiana. Thank you to my faculty advisor Professor

Frances Watson—an unparalleled wrongful conviction practitioner and a heroic advocate for

criminal justice reform in Indiana.

1. Indiana Man Exonerated After Serving More Than 25 Years for a Rape DNA Testing

Proves He Didn’t Commit, INNOCENCE PROJECT (May 10, 2017), https://www.innocenceproject.

org/indiana-man-exonerated-after-serving-more-than-25-years-for-a-rape-dna-testing-proves-he-

didnt-commit/ [https://perma.cc/8X6K-3PKB] [hereinafter Indiana Man Exonerated].

2. Id.

3. Id.

4. Michael D. Cicchini & Joseph G. Easton, Reforming the Law on Show-Up Identifications,

100 J. CRIM. L. & CRIMINOLOGY 381, 389 (2010).

5. Indiana Man Exonerated, supra note 1.

6. Id.

7. Id.

8. Spencer S. Hsu, FBI Admits Flaws in Hair Analysis Over Decades, WASH. POST (April

18, 2015), https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-

n e a r ly - a l l - c r i m i n a l - t r i a l s - f o r - d e c a d e s / 2 0 1 5 / 0 4 / 1 8 / 3 9 c 8 d 8 c 6 -e 5 1 5 -1 1 e 4 -b 5 1 0 -

962fcfabc310_story.html [https://perma.cc/S6U7-BREM].

9. Barnhouse v. State, 622 N.E.2d 247 (Ind. Ct. App. 1993) (affirming Barnhouse’s

conviction); Indiana Man Freed in 2017 Alleges Wrongful Rape Conviction, ASSOCIATED PRESS

(July 31, 2019), https://apnews.com/article/18402d40d3df405ea02ad8141a2cc1ad [https://perma.cc/



164 INDIANA LAW REVIEW [Vol. 55:163

Ultimately, through a letter from prison, Barnhouse sought help from the
Innocence Project—an organization that exonerates the wrongly convicted via
DNA testing.10 With the co-counsel of Professor Frances Watson and the
Wrongful Conviction Clinic at Indiana University McKinney School of Law, the
Innocence Project pursued DNA testing of the semen collected from the victim
and her jeans.11 The Delaware County prosecutor agreed to DNA testing12 and the
results excluded Barnhouse as the source of the semen.13

In May 2017, a Delaware County judge vacated Barnhouse’s conviction due
to the exculpatory DNA test results.14 At sixty, Barnhouse, who has struggled his
entire life with mental health conditions, finally ended his twenty-five-year fight
for justice15 and became the 350th person in the United States exonerated by
DNA evidence.16 Barnhouse’s story highlights the importance of DNA evidence
for correcting errors.

Since 1989, in the United States, 2,955 wrongfully convicted individuals
have been exonerated after spending an average of nine years in prison for crimes
they did not commit.17 Forty-three percent of those wrongful convictions involved
flawed forensic science,18 and since the development of DNA testing, 551
exonerations have been based on DNA evidence.19 With the exception of
DNA analysis, “no forensic method has been rigorously shown to have the
capacity to consistently, and with a high degree of certainty, demonstrate a
connection between evidence and a specific individual or source.”20 Accordingly,

35MK-ZNYN].

10. Douglas Walker, Bid Made to Clear Convicted Rapist, INDIANAPOLIS STAR, February 26,

2017, at 15A [https://perma.cc/3WVT-GVEG].

11. Indiana Man Exonerated, supra note 1.

12. E-mail Interview with Eric Hoffman, Prosecuting Attorney, 46th Judicial Circuit of

Indiana (Jan. 12, 2020) (on file with the Author and the Indiana Law Review).

13. DNA Tests Show Imprisoned Indiana Man Didn’t Commit ‘92 Rape, INDIANA LAWYER

(Mar. 2, 2017), https://www.theindianalawyer.com/articles/42962-dna-tests-show-imprisoned-

indiana-man-didnt-commit-92-rape [https://perma.cc/K5G5-86GU].

14. Douglas Walker, DNA Sets Convicted Muncie Man Free, INDIANAPOLIS STAR, May 9,

2017, at 3A.

15. Id.

16. Indiana Man Exonerated, supra note 1.

17. Exonerations in the United States, NAT’L REGISTRY OF EXONERATIONS, http://www.law.

u m ich .edu /special/exon eration /P ages/E xon eration s -in -t h e -U n it e d -S t a t e s -M a p .aspx

[https://perma.cc/JH8V-NEHR].

18. DNA Exonerations in the United States, INNOCENCE PROJECT, https://www.

innocenceproject.org/dna-exonerations-in-the-united-states/ [https://perma.cc/T9LA-5UYU].

19. Exonerations By Year: DNA and Non-DNA, NAT’L REGISTRY OF EXONERAT IONS,

h t t p :/ / w w w . la w . u m ic h . e d u / s pecial/exon e r a t io n / P a g e s / E x o n e r a t io n -b y-Y e a r . a s p x

[https://perma.cc/AB3H-PVL6].

20. COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCI. CMTY., NAT’L RES. COUNCIL,

DOC. NO. 228091, ST RENGTHENING FORENSIC SCI. IN THE U.S.: A PATH FORWARD 1, 7 (2009),

https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf [https://perma.cc/MSX4-34X4] [hereinafter



2022] BLOOD, SWEAT, AND TEARS 165

post-conviction litigation often hinges on re-examination of physical evidence
subjected to outdated or faulty testing methods.21 But DNA evidence can be
destroyed in the time between a conviction and a petition for post-conviction
testing.22 If biological evidence is not retained, post-conviction DNA testing is
impossible,23 and law enforcement loses the potential to solve cold, current, and
future cases.24 

Three crucial actions made Barnhouse’s exoneration possible: (1)
preservation of the biological evidence in his case;25 (2) prosecutorial consent to
post-conviction DNA testing;26 and (3) a profile comparison search of the DNA
database.27 Without the active participation of the State in these steps, Barnhouse
may not have been exonerated.28 Despite the importance of biological evidence
preservation and DNA database comparisons in exonerating the wrongly
convicted and identifying perpetrators,29 current law only permits DNA testing
(upon a prima facie showing).30

STRENGTHENING FORENSIC SCIENCE Report].

21. Hsu, supra note 8.

22. Preservation of Evidence, INNOCENCE PROJECT, https://innocenceproject.org/preservation-

of-evidence/ [https://perma.cc/ZM86-WMTM].

23. DNA evidence played a role in the exoneration of eleven Hoosiers, who spent an average

of sixteen years behind bars: Richard Alexander, William Barnhouse, Harold Buntin, David Camm,

Keith Cooper, Glenn Roosevelt, Larry Mayes, Christopher Parish, Darryl Pinkins, Dwayne D.

Scruggs, and Jerry Watkins. See Browse Cases, NAT’L REGISTRY OF EXONERATIONS, https://www.

law.umich.edu/special/exoneration/Pages/browse.aspx [https://perma.cc/UD8M-3V43].

24. Preservation of Evidence, supra note 22.

25. State of Indiana’s Motion to Dismiss at 1-2, State v. Barnhouse, No. 18D02-9204-CF-46,

at (Del. Cir. Ct. No. 2 May 9, 2017) [https://perma.cc/Z4JD-VZZF].

26. Post-Conviction DNA Testing Agreement and Instructions to Testing Laboratory, State

v. Barnhouse, No. 18D02-9204-CF-46 (Del. Cir. Ct. No. 2 Jan. 22, 2016) [https://perma.cc/G8YF-

6NDL].

27. State of Indiana’s Motion to Dismiss, supra note 25, at 3.

28. Order on Joint Motion for Release in Lieu of Posting Bail, State v. Barnhouse, No.

18D02-9204-CF-46 (Del. Cir. Ct. No. 2 Mar. 8, 2017) [https://perma.cc/S8AU-WV44]; Order on

Motion to Dismiss at 1, State v. Barnhouse, No. 18D02-9204-CF-46, at (Del. Cir. Ct. No. 2 May

10, 2017) [https://perma.cc/9UJZ-AW9S]; Indiana Man Exonerated, supra note 1.

29. DNA’s Revolutionary Role in Freeing the Innocent, INNOCENCE PROJECT (Apr. 18, 2018),

https://innocenceproject.org/dna-revolutionary-role-freedom/ [https://perma.cc/Z2CK-L9G3].

30. IND. CODE § 35-38-7-1 to 7-19 (2021). At the time of this Note’s publication in March

2022, a bill pends in the Indiana General Assembly, which if enacted, will require uniform,

statewide preservation of evidence of violent offenses potentially containing DNA. See Senate Bill

263, 2022 Session, IND. GENERAL ASSEMBLY, http://iga.in.gov/legislative/2022/bills/senate/263

[https://perma.cc/EL8S-7QHV] (last updated Feb. 16, 2022) [hereinafter SB 263]. The result of

efforts by Professor Frances Watson and the Innocence Project, among other stakeholders, SB 263

was authored by Sen. Blake Doriot and Sen. Eric Koch; co-authored by Sen. Mike Bohacek, Sen.

Jack Sandlin, Sen. Rodney Pol, and Sen. Lonnie Randolph; and sponsored by Rep. Gregory

Steuerwald and Rep. Donna Schaibley. Id. The legislation finished its third reading in the



166 INDIANA LAW REVIEW [Vol. 55:163

To remedy miscarriages of justice, this Note proposes (1) implementation of
a provisional forensic science task force, (2) enactment of an evidence retention
statute,31 (3) expansion of opportunities for post-conviction DNA testing, and (4)
adoption of mandatory DNA database searches with all DNA tests.32 Following
a background on DNA evidence in Part I, Part II examines Indiana’s procedures
for evidence preservation, DNA testing, and database searches. Part III advocates
to establish a forensic science task force to recommend best practices for Indiana
and outlines the components of an effective DNA evidence statute. Finally, Part
IV addresses the barriers to the statutory scheme and considers the availability of
federal grants.

I. AN OVERVIEW OF DNA EVIDENCE, STORAGE, AND ACCESS

To lay the foundation for the DNA evidence statutory framework, Part I
provides background on biological evidence, DNA databases, and types of
database searches.

A. Biological Evidence: Preserving the Possibility of DNA Identification

Although forensic science is intended to solve crimes, its flaws have also led
to wrongful convictions.33 “Wide variability exists across forensic science
disciplines with regard to techniques, methodologies, reliability, error rates,
reporting, underlying research, general acceptability, and the educational
background of its practitioners.”34 Some forensic disciplines are laboratory-based,
like DNA analysis and toxicology, but others, like forensic feature-comparison
methods, are subject to interpretation.35 In terms of scientific validity, the
analytically based disciplines hold an edge over disciplines founded on expert
interpretation.36 The opinion-based disciplines, in particular, are unreliable,
pending further developments.37 

To improve the accuracy of DNA analysis for samples that are degraded or
contain a mixture of DNA from more than one person, researchers continue to

Corrections and Criminal Law committee, chaired by Sen. Michael Young, and all proposed

amendments were adopted.

31. SB 263, supra note 30; see, e.g., 725 ILL. COMP. STAT. 5/116-4 (2021); MICH. COM P.

LAWS ANN. § 770.16 (West 2021); WIS. STAT. ANN. §§ 165.81, 757.54, 968.205, 978.08 (West

2021).

32. See, e.g., 725 ILL. COMP. STAT. 5/116-5 (2021); N.C. GEN. STAT. § 15A-269(a)-(b)

(2021); OHIO REV. CODE ANN. § 2953.74(E) (West 2021).

33. See Kayleigh E. McGlynn, Note, Remedying Wrongful Convictions Through DNA

Testing: Expanding Post-Conviction Litigants’ Access to DNA Database Searches to Prove

Innocence, 60 B.C. L. REV. 709, 715 (2019).

34. STRENGTHENING FORENSIC SCIENCE Report, supra note 20, at 182.

35. The subjective, feature-comparison methods include analyses of bitemarks, latent

fingerprints, toolmarks, firearms, footwear and tire marks, hair, insects, and handwriting. Id. at 7.

36. Id.

37. Id. at 1, 7.



2022] BLOOD, SWEAT, AND TEARS 167

develop probabilistic genotyping—a method of DNA interpretation used to
calculate the likelihood of identity.38 Excluding the most difficult cases, DNA
analysis is considered the gold-standard for forensic identification39 due to its
low, but nonzero, error rate.40

But DNA testing is dependent on preservation of evidence containing
biological material “in the form of skin, hair, tissue, bones, teeth, blood, semen,
or other bodily fluids.”41 Because DNA analysis offers consistently accurate
results42 and often plays a role in exonerations,43 retaining biological evidence is
a paramount concern for the future of criminal justice.44 

B. Where Are DNA Profiles Stored?: DNA Databases

Only when evidence containing biological material is maintained through
adequate storage practices is forensic analysis available to identify individual
DNA profiles. These genetic profiles are cataloged in the National DNA Index
System (“NDIS”),45 governed by the federal DNA Act,46 and the state-level DNA
database.47 The DNA Act48 permits the disclosure of records at NDIS “to the
Federal, State, and Local criminal justice agencies who participate in NDIS,”4 9

but a defendant may access only “the DNA samples and analyses performed in

38. KIRK E. LOHMUELLER & KEITH INMAN, NAT’L CRIMINAL JUSTICE REFERENCE SERVICE,

ADVANCING PROBABILISTIC APPROACHES TO INTERPRETING LOW-TEMPLATE DNA PROFILES AND

MIXTURES: DEVELOPING THEORY, IMPLEMENTING PRACTICE 2 (2018), https://www.ncjrs.gov/

pdffiles1/nij/grants/251805.pdf [https://perma.cc/ST5X-DN3D].

39. STRENGTHENING FORENSIC SCIENCE Report, supra note 20, at 5, 41.

40. Id. at 184. 

41. Id. at 18.

42. Id. at 130.

43. DNA Exonerations in the United States, supra note 18.

44. TECH. WORKING GRP. ON BIOLOGICAL EVIDENCE PRES., NAT’L INST. OF STANDARDS AND

TECH., NAT’L INST. OF JUS., BIOLOGICAL EVIDENCE PRESERVATION: CONSIDERATIONS FOR

POLICYMAKERS 1 (2015) https://nvlpubs.nist.gov/nistpubs/ir/2015/NIST.IR.8048.pdf [https://perma.

cc/RSJ5-Z5W6] [hereinafter CONSIDERATIONS FOR POLICYMAKERS].

45. NDIS, which is part of the Combined DNA Index System, is a national DNA database

that includes DNA profiles contributed by accredited laboratories at the federal, state, and local

levels. Frequently Asked Questions on CODIS and NDIS, FBI, https://www.fbi.gov/services/

laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet [https://perma.cc/Y34V-AG4K].

46. DNA Identification Act of 1994, 42 U.S.C. § 14132, Pub. L. No. 103-322, § 210304, 108

Stat. 1796, 2069-70 (codified as amended at 34 U.S.C. § 12592 (2018)) (establishing NDIS).

47. 240 IND. ADMIN. CODE 8 (2021) (outlining governance of the Indiana DNA database).

48. 34 U.S.C. § 12592 (2018).

49. See FBI, NATIONAL DNA INDEX SYSTEM (NDIS) OPERATIONAL PROCEDURES MANUAL

36 (2021), https://www.fbi.gov/file-repository/ndis-operational-procedures-manual.pdf/view

[https://perma.cc/9E42-R669] [hereinafter FBI OPERATIONAL PROCEDURES MANUAL].



168 INDIANA LAW REVIEW [Vol. 55:163

connection with [his or her] case.”50 Notably, the DNA Act51 does not guarantee
an NDIS search will be conducted with each DNA test conducted pursuant to
state law.52

C. Types of DNA Database Searches Conducted by Law Enforcement

The ability to analyze biological evidence and run searches of the databases
significantly aids crime detection and prevention. One common type of search is
a forensic offender DNA profile search, which occurs when law enforcement
possesses the DNA profile of a person of interest and executes a search that
compares that profile to all the profiles in the database.53 If the suspect’s DNA
sample matches a profile collected from a crime scene, police connect the
individual genotype to an unsolved crime.54

Alternatively, a crime-scene DNA profile search occurs when law
enforcement does not know the identity of the DNA profile.5 5 In that case, an
agency compares a crime-scene sample to known-identity profiles and to
unidentified profiles in the database.56 Law enforcement can connect individuals
to crimes if the crime-scene profile matches an identified offender’s profile.57 Or
an agency can tie two crimes together and possibly identify a serial offender if the
crime-scene DNA sample matches another unidentified DNA profile.58 

However, the quality of a DNA sample impacts the potential database search
methods.59 If evidence is improperly stored or contains a combination of DNA
from several people, the depth and accuracy of analysis is negatively impacted.60

To maximize the benefits of forensic analysis, all jurisdictions should legislate
comprehensive evidence preservation.

50. Id.; 34 U.S.C. § 12592(b)(3) (2018).

51. 34 U.S.C. § 12592 (2018).

52. FBI OPERATIONAL PROCEDURES MANUAL, supra note 49, at 34, 36, 56.

53. Id. at 27.

54. Jason Kreag, Letting Innocence Suffer: The Need for Defense Access to the Law

Enforcement DNA Database, 36 CARDOZO L. REV. 805, 816 (2015).

55. FBI OPERATIONAL PROCEDURES MANUAL, supra note 49, at 31, 55.

56. Id. at 54-55; McGlynn, supra note 33, at 726. 

57. McGlynn, supra note 33, at 726.

58. Kreag, supra note 54, at 816 n.52.

59. There are two methods of DNA database searches: (1) adding a complete DNA profile

to the database, which is preferrable because profiles in the database are included in future

searches; and (2) a manual keyboard search in cases of partial or degraded samples, which is

problematic because the data is not saved in the database for future comparisons. See FBI

OPERATIONAL PROCEDURES MANUAL, supra note 49, at 37, 40-42, 50, 56.

60. Michael P. Luongo, Note, Post-Conviction Due Process Right to Access DNA Evidence:

Dist. Attorney’s Office v. Osborne, 129 S. Ct. 2308 (2009), 29 TEMP. J. SCI. TECH. & ENVTL. L. 127,

130 (2010).



2022] BLOOD, SWEAT, AND TEARS 169

II. SHORTFALLS OF THE CURRENT PROCEDURES

Part II examines Indiana’s DNA evidence practices. Section A overviews
evidence preservation standards—both federal and local. Section B begins with
the development of Indiana case law on post-conviction DNA analysis and ends
with a breakdown of the DNA testing statute. Section C details the availability of
DNA database searches post-conviction. 

A. Evidence Preservation

1. Federal Standards: Post-Conviction Evidence Retention Practices are Left
to the States.—No federal statutes or regulations require states to retain DNA
evidence after a conviction.61 The length of time and the types of crimes for
which preservation is required vary from state to state.6 2 Federally, the DNA
Identification Act of 199463 requires forensic laboratories managing DNA records
on NDIS to comply with the quality assurance standards issued by the FBI64 and
to obtain accreditation from a professional association of forensic science65 (e.g.,
ANSI National Accreditation Board (“ANAB”)).66 To participate in NDIS, the
FBI67 and ANAB68 both require labs to maintain evidence retention procedures.
These national standards provide a benchmark to develop evidence preservation
procedures at the state level. 

61. Biological evidence preservation is required in the federal system. See 18 U.S.C. § 3600A

(2018); TECH. WORKING GRP. ON BIOLOGICAL EVIDENCE PRES., NAT’L INST. OF STANDARDS AND

TECH., NAT’L INST. OF JUS., THE BIOLOGICAL EVIDENCE PRESERVATION HANDBOOK: BEST

PRACTICES FOR EVIDENCE HANDLERS 1 (2013), https://www.nist.gov/system/files/documents/

forensics/NIST-IR-7928.pdf [https://perma.cc/6NTD-GB3S] [hereinafter BEST PRACTICES FOR

EVIDENCE HANDLERS].

62. Cristina Martin, Note, DNA Storage Banks: The Importance of Preserving DNA Evidence

to Allow for Transparency and the Preservation of Justice, 91 CHI.-KENT L. REV. 1173, 1174

(2016); BEST PRACTICES FOR EVIDENCE HANDLERS, supra note 61, at iv.; The criminal justice

system is fragmented into 12,656 law enforcement agencies with approximately 899,212 law

enforcement employees. Table 74: Full Time Law Enforcement Employees, 2014 Crime in the

United States, FBI, https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-74

[https://perma.cc/94D5-7JFL]

63. 42 U.S.C. §14132(b) (codified as amended at 34 U.S.C. § 12592 (2018)).

64. FBI, QUALITY ASSURANCE STANDARDS FOR FORENSIC DNA TESTING LABORATORIES

(2020), https://www.fbi.gov/file-repository/quality-assurance-standards-for-forensic-dna-testing-

laboratories.pdf/view [https://perma.cc/AU7V-WTN6] [hereinafter FBI QUALITY ASSURANCE

STANDARDS].

65. ISO/IEC 17025:2017-FORENSIC SCIENCE TESTING & CALIBRATION LABS.

ACCREDITATION REQUIREMENTS, ANSI NAT’L ACCREDITATION BD. (2019), https://anab.

qualtraxcloud.com/ShowDocument.aspx?ID=12371 [https://perma.cc/NWM8-M2TX] [hereinafter

ANAB ACCREDITATION REQUIREMENTS].

66. Frequently Asked Questions on CODIS and NDIS, supra note 45.

67. FBI QUALITY ASSURANCE STANDARDS, supra note 64, at 12-13, 20-21.

68. ANAB ACCREDITATION REQUIREMENTS, supra note 65, at 10-11, 15.



170 INDIANA LAW REVIEW [Vol. 55:163

For additional direction, policymakers should look to the Biological
Preservation Handbook, issued by the National Institute of Standards and
Technology and the National Institute of Justice,69 and the evidence preservation
requirements to qualify for federal grants.70

2. Unless SB 263 Passes, Indiana Evidence Retention Protocol Varies by
County.—At last, pending legislation may displace Indiana’s fragmented
evidence retention rules that have endured for far too long.71 But until and unless
SB 263 passes, Indiana remains one of fifteen states72 without a statute
delineating evidence preservation procedures after a conviction.73 Prior to the
introduction of SB 263, in Indiana, the only codified evidence preservation
policies have been found within the post-conviction DNA testing statute.74 Upon
filing a petition for DNA testing, the court must “order the state to preserve
during the pendency of the proceeding all evidence in the state’s possession or
control that could be subjected to DNA testing[.]”75 Thus, the duty to preserve
evidence is triggered only by a petition to the court,76 which may come years after
conviction.77 In essence, absent passage of SB 263, there is a period of time
between evidence collection and a petition in which evidence could be
destroyed.78

69. BEST PRACTICES FOR EVIDENCE HANDLERS, supra note 61.

70. See infra Section IV.B.

71. SB 263, supra note 30.

72. Fifteen states lack an evidence preservation statute that meets the standards outlined by

the Technical Working Group on Biological Evidence Preservation: Alabama, Delaware, Idaho,

Indiana, Kansas, New York, North Dakota, Pennsylvania, South Dakota, Tennessee, Utah,

Vermont, Washington, West Virginia, and Wyoming. Preservation of Evidence, supra note 22.

73. The only published instruction the state gives to court reporters on the disposition of

biological materials is the following:

Evidence containing biological materials 

Two problems on disposition 

a. proper, safe handling of such evidence; 

b. maintenance of evidence for DNA and other analysis for extended periods of time.

See IND. OFFICE OF COURT SERV., COURT REPORTER’S HANDBOOK 104 (5th ed., 3d revision 2018),

https://www.in.gov/judiciary/iocs/files/ctr-handbook.pdf [https://perma.cc/2RHU-Q2V4].

74. IND. CODE §§ 35-38-7-1 to 7-19 (2021).

75. Id. § 35-38-7-14.

76. Id. SB 263 would amend Indiana Code sections 34-24-1-2, -4.5, -9; 35-33-5-5; and 35-38-

7-14 to provide for mandatory preservation of evidence containing biological material for violent

crimes. See SB 263, supra note 30. Thus, in the future, SB 263 would prevent destruction or loss

of evidence during the gap between a conviction and a petition for testing; however, SB 263 would

not change the prima facie showing necessary to obtain post-conviction DNA testing under Indiana

Code section 35-38-7-8. Id.

77. Justin Brooks & Alexander Simpson, Blood Sugar Sex Magik: A Review of

Postconviction DNA Testing Statutes and Legislative Recommendations, 59 DRAKE L. REV. 799,

849-50 (2011).

78. Id.; CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 5.



2022] BLOOD, SWEAT, AND TEARS 171

For decades, Indiana evidence retention procedures have been governed by
local rules that vary by county.7 9 Depending on the county or the type of
evidence, evidence is managed by (1) the sheriff’s department,80 (2) the Indiana
State Police labs81 or county forensic agencies,82 or (3) the courts.83 The lack of
uniformity in procedures leads to fragmentation and mistakes.84 
In an attempt to guide the counties, the Records Access and Management
Committee, which studies and provides the Indiana Supreme Court
recommendations for the management of court records,85 drafted a model local
rule for evidence retention.86 The model rule recommends time periods for
storage based on the case type87:

79. Trial Courts & Clerks by County, Local Courts, COURTS.IN.GOV, https://www.in.gov/

courts/local/ [https://perma.cc/K3RD-HAAV].

80. Memorandum from James Walker, Dir. of Trial Court Mgmt., Div. of State Court

Admin., Survey of Law Enforcement (revealing half of the county sheriff’s departments surveyed

take custody of biological evidence after a trial) (on file with the Author and the Indiana Law

Review).

81. LABORATORY DIVISION COMMANDER, IND. STATE POLICE LAB. DIV., QUALITY

ASSURANCE MANUAL 32-33 (38th ed. 2020), https://www.in.gov/isp/labs/files/Lab_QA_Manual_

09-10-2020.pdf [https://perma.cc/YH6M-DK84].

82. See, e.g., Marion County Forensic Services Agency, INDY.GOV, https://www.indy.gov/

agency/marion-county-forensics-services-agency [https://perma.cc/3WZ8-HY4H].

83. Memorandum from James Walker, Dir. of Trial Court Mgmt., Div. of State Court

Admin., Survey of Court Reporters (Sept. 30, 2009) (on file with the Author and the Indiana Law

Review); see, e.g., Blackford LR 05-AR00-5(B); Hamilton LR29-AR07-113.20; Porter LR64-

AR00-3900.20; and Whitley LR92-AR7-3.

84. Martin, supra note 62, at 1179.

85. Records Access and Management Committee, COURTS.IN.GOV, https://www.in.gov/

judiciary/iocs/3860.htm [https://perma.cc/4MUW-59DG].

86. RETENTION OF EVIDENCE MODEL RULE (RECORDS MGMT. COMM. Apr. 2020)

[https://perma.cc/HLQ4-J29E].

87. Id.



172 INDIANA LAW REVIEW [Vol. 55:163

Type of Evidence Time Period for Retention

Civil Cases, 
Non-criminal
Proceedings

Dispose evidence four (4) months after the case is
decided unless an appeal is taken. If an appeal is taken,
evidence retained for two (2) years from termination of
the proceedings.

Criminal
Misdemeanor, Level
6 Felonies, and
Attempts

Dispose evidence three (3) years after the case is
dismissed, the defendant is found not guilty, or the
defendant is sentenced, unless an appeal is taken. If
appealed, retain evidence for three (3) years following
termination of the appeal.

Level 1-5 Felonies
and Attempts

Dispose evidence twenty (20) years after the case is
dismissed, the defendant is found not guilty, or the
defendant is sentenced, unless an appeal is taken. If an
appeal is taken, retain evidence for twenty (20) years
from termination of the appeal, retrial, or subsequent
appeal and termination, whichever is later, unless an
action challenging the conviction or sentence is pending.

Murder, Life without
Parole, and Death
Penalty Cases

Retain evidence for the lifetime of the defendant if (s)he
is found guilty. All exhibits shall be taken away by the
parties twenty (20) years after the case is dismissed or the
defendant is found not guilty unless an appeal is taken. If
an appeal is taken, retain all evidence for twenty (20)
years from termination of all proceedings.

Table 1. Recommended Time Periods for Evidence Storage (by Author).

After evidence is held for the above stated periods, the model rule recommends that
in all cases, “the Court shall provide actual notice, by mail . . . that the evidence will
be destroyed by a date certain if not retrieved before that date. . . . [E]vidence which
is not retaken after notice should be disposed of by the sheriff on the court’s
order.”88 

But this model rule is not published in a manual or distributed to counties.
Rather, the rule is sent to court administrators upon a request for guidance on
evidence retention.8 9 At present, forty-nine of ninety-two counties have a local
rule on criminal evidence retention.90 Specifically, twenty-two counties have a

88. Id. Lastly, if evidence is not claimed, it is destroyed if its possession is illegal or if it has

negligible value, and if valuable, evidence is auctioned by the sheriff for the county fund. Id.

89. E-mail Interview with Tom Jones, Records Manager, Office of Court Services (Jan. 14,

2020) (on file with the Author and the Indiana Law Review).

90. The following Indiana counties do not have a local rule addressing criminal evidence

retention: Adams; Benton (Civil evidence retention rule found at TR04-TR-3); Boone; Brown

(Proposed rule on Evidence Handling, Retention and Disposition pending approval found at LR07-

AR00-28); Cass; Clark; Clay; Clinton; Crawford; Daviess; Delaware; Dubois; Franklin; Fulton;

Greene; Hancock; Harrison; Jasper; Jefferson; Knox; Kosciusko; Martin; Miami; Newton; Orange;



2022] BLOOD, SWEAT, AND TEARS 173

local rule defining the duration for criminal evidence retention as at least ten
years;91 six counties have a local rule defining the duration for retention as greater
than six months, but less than or equal to five years;92 and twenty-one counties
have a local rule setting the duration for retention as less than six months.93

The relevant rule in Marion County falls into the last category—rules that
require retention for less than six months. The Marion County rule directs that for
all cases, civil and criminal, “exhibits in the custody of the Court Reporter shall
be removed by the offering parties four (4) months after the case is decided unless
an appeal is taken. If not removed after four months, the Court Reporter may
dispose of them without notice.”94 In sum, no county has adopted the retention
periods recommended by the Records Access and Management Committee for
evidence in murder cases or cases involving sentences of death or life without
parole.95 

In addition to the county rules, the Indiana State Police (“ISP”) operate four
nationally accredited crime labs96 that maintain the quality assurance standards,
including evidence preservation,9 7 set forth by both ANAB98 and the FBI.99 The

Perry; Posey; Pulaski; Putnam; Ripley; Rush; Scott; Spencer; Steuben; Sullivan; Switzerland;

Tipton; Union; Warrick; Washington; Wayne; Wells; and White.

91. The Indiana counties with a local rule defining the duration for criminal evidence

retention as at least ten years: Bartholomew LR03-AR7-1; Carroll LR08-AR7-16; Dearborn LR15-

AR-9; Decatur LR16-AR7-1; Floyd LR22-AR7-1-119; Gibson LR26-AR7-008; Hamilton LR29-

AR07-113.2; Jackson LR36-AR7-1; Jennings LR40-AR07-25; LaPorte LR 46-AR 00-11; Lawrence

LR47-AR00-003; Madison LR48-AR7-06; Monroe LR53-TR53-0208; Ohio LR58-AR-10; Owen

LR60-AR07-1; Parke LR61-AD00-AD-12.1-12.3; Shelby LR73-AR7-4; St. Joseph LR71-TR51-

212; Tippecanoe LR79-AR00-17; Vermillion LR 83-AR00-6; Wabash LR85-AR00-8; and Whitley

LR92-AR7-3.

92. The Indiana counties with a local rule defining the duration for criminal evidence

retention as greater than six months, but less than or equal to five years: Allen LR02-AR00-15;

Blackford LR 05-AR00-5(B); Johnson LR41-AR7-00163; Lake LR45-TR43-12; Pike LR63-TR00-

7; and Warren LR86-AP29-001.

93. The Indiana counties with a local rule defining the duration for criminal evidence

retention as less than six months: DeKalb LR17 AR 7-3; Elkhart LR20-TR00-NACE-11; Fayette

LR21-TR00-TR-23; Fountain LR23-TR 26-FLR 10(a)-(e); Grant LR-27 AR10-16; Hendricks

LR32-AR00-4; Henry LR33-AR00-3; Howard LR34-TR16-18; Huntington LR35-AD-00-13; Jay

LR38-AR00-3; LaGrange LR44-AR 00-14; Marion LR49-TR00-220; Marshall LR50-JR01-MLR-

015; Montgomery LR54-AR10-5; Morgan LR55-TR00-1.1-1.3; Noble LR57-AR 7-4; Porter LR64-

AR00-3900; Randolph LR68-AR00-703; Starke LR75-TR00-15; Vanderburgh LR82-AR7-1.26;

and Vigo LR84-TR00-19.

94. Marion LR50-JR01-MLR-015.

95. See supra notes 90-93 (listing the local rules for each county).

96. INDIANA STATE POLICE LAB. DIV., CERTIFICATE OF ACCREDITATION FOR FORENSIC

TESTING BY ANSI NAT’L ACCREDITATION BD., https://www.in.gov/isp/labs/files/Lab_Div_

Accreditation_Cert_5-10-2017_to_6-30-2021_V3.pdf [https://perma.cc/8GPE-4KH6].

97. 34 U.S.C. § 12592 (2018); Frequently Asked Questions on CODIS and NDIS, supra note

45; Telephone Interview with Carl Sobieralski, Forensic Scientist at the Ind. State Police Lab’y,



174 INDIANA LAW REVIEW [Vol. 55:163

ISP labs are an example of successful evidence retention practices in Indiana.100

However, chain of custody problems101 can arise when ISP labs transfer evidence
to individual law enforcement agencies or to other regional forensic labs
throughout the state.1 0 2 While the evidence retained at the ISP labs is securely
stored,103 based on the varying county rules on evidence disposition,104 local
facilities may not meet the national accreditation standards. To safeguard
evidence accessibility, Indiana should consider the national forensic laboratory
standards in implementing uniform storage practices.105

B. DNA Testing

To date, Indiana’s only codified DNA evidence policy is found in the post-
conviction DNA testing statute.106 To provide context, this section first outlines
the development of DNA evidence jurisprudence.

1. Case Law Evolution: Tension Over Legislative Intent.—“Indiana was an
early and noteworthy participant in using its bill of rights to defend personal
liberty.”107 For example, in 1882, based on constitutional notions of due process
and a fair trial, the Indiana Supreme Court recognized post-conviction procedures
in Sanders v. State, concluding that “where a new fact is suggested which would
have prevented judgment, the accused is entitled to the writ coram nobis.”108

Following the early recognition of post-conviction remedies, Indiana courts
allowed defendants to admit DNA evidence long before the DNA testing statute

IUPUI Adjunct Instructor of Forensic Biology (Jan. 29, 2020) (transcript on file with the Author

and the Indiana Law Review).

98. ANAB ACCREDITATION REQUIREMENTS, supra note 65.

99. FBI QUALITY ASSURANCE STANDARDS, supra note 64.

100. IND. STATE POLICE LAB. DIV., 2019 ANNUAL REPORT 15 (2019), https://www.in.gov/isp/

labs/files/2019_Annual_Report_ISP_Lab_Division.pdf [https://perma.cc/9K47-AZRW]; For

example, thanks to a search of the ISP DNA database which identified the actual perpetrator, Jerry

Watkins was exonerated after spending fourteen years in prison for murder. See Jerry Watkins,

NAT’L REGISTRY OF EXONERATIONS, https://www.law.umich.edu/special/exoneration/Pages/

casedetail.aspx?caseid=3724 [https://perma.cc/RL6D-4YVE] (last updated Mar. 8, 2017).

101. BEST PRACTICES FOR EVIDENCE HANDLERS, supra note 61, at 25.

102. IND. STATE POLICE LAB. DIV., supra note 100.

103. LABORATORY DIVISION COMMANDER, supra note 81.

104. See supra notes 90-93.

105. FBI QUALITY ASSURANCE STANDARDS, supra note 64; ANAB ACCREDITATION

REQUIREMENTS, supra note 65.

106. IND. CODE § 35-38-7-1 to 7-19 (2021). See SB 263, supra note 30.

107. Chief Justice Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 IND. L.

REV. 575, 576 (1989).

108. 85 Ind. 318, 330 (1882); Id. at 322 (“An innocent man suffering from an illegal sentence,

procured by fraud or extorted by violence, may desire a trial and an acquittal which shall remove

from his character the stain of guilt . . . . An acquittal is the vindication of a right, the award of

justice.”); id. at 324; IND. CONST. art. I, §§ 12, 13.



2022] BLOOD, SWEAT, AND TEARS 175

became law in 2001.109 In 1992, the Indiana Court of Appeals decided Sewell v.
State, which endorsed post-conviction DNA analysis.110 There, the court
permitted Sewell to access a rape kit for DNA testing ten years after his
conviction.111 The court concluded that Brady v. Maryland,112 which held that
federal due process requires the government to disclose exculpatory evidence to
defendants before trial, “can operate to require disclosure of evidence not
discoverable” at the time of trial.113 In sum, “where the specified evidence is
exculpatory, the defendant’s right to fundamental due process outweighs the
State’s interest in nondisclosure.”114 Sewell reveals that since the development of
DNA technology, Indiana courts have recognized its exculpatory benefits.115

A decade after Sewell, the General Assembly enacted the first DNA testing
statute in 2001,116 and debate emerged over its intent. For example, in the
controversial Williams case,117 the Indiana Supreme Court grappled with the reach
of the DNA testing statute118 and a 2003 amendment to the death sentence
statute119 which allowed for petitions to consider new evidence.120 Awaiting
execution after conviction for murder, Darnell Williams began his pursuit of
DNA analysis by filing a post-conviction petition for DNA testing of blood spots
on the shorts he was wearing when arrested.121 On review, the Supreme Court
acknowledged that DNA testing can reveal “important information relating to a
convicted person’s guilt or innocence,”122 but denied the petition because “even
a test result favorable to Williams would not . . . afford him relief . . . given the
other evidence.”123 

Then, only days before execution, Williams filed a petition for the
consideration of new evidence pursuant to a new provision of the death sentence
statute.124 The section provides:

109. Hopkins v. State, 579 N.E.2d 1297, 1302 (Ind. 1991) (recognizing the admissibility of

DNA evidence in criminal proceedings).

110. 592 N.E.2d 705, 707-08 (Ind. Ct. App. 1992).

111. Id. at 706.

112. Brady v. Maryland, 373 U.S. 83, 87 (1963).

113. Sewell, 592 N.E.2d at 707.

114. Id. at 707 n.4.

115. Id. at 708.

116. 2001 Ind. Acts 262, 265, Pub. L. 49-2001 (codified at IND. CODE § 35-38-7-14).

117. Williams v. State, 793 N.E.2d 1019 (Ind. 2003).

118. IND. CODE § 35-38-7-14 (2021).

119. Id. § 35-50-2-9(k).

120. Williams, 793 N.E.2d at 1021-22.

121. Williams v. State, 791 N.E.2d 193, 193-94 (Ind. 2003); see also IND. CODE § 35-38-7-14

(2021).

122. Williams, 791 N.E.2d at 194.

123. Williams v. State, 808 N.E.2d 652, 655 (Ind. 2004).

124. Williams, 793 N.E.2d at 1021. The death sentence statute and the post-conviction DNA

testing statutes set forth similar standards for relief; thus, Williams is relevant to the application of

the DNA testing statute. Compare 2003 Ind. Acts 1115, 1119-20, Pub. L. 147-2003 (codified at



176 INDIANA LAW REVIEW [Vol. 55:163

A person who has been sentenced to death . . . may file a written petition
with the supreme court seeking to present new evidence challenging the
person’s guilt . . . . The supreme court shall determine . . . whether the .
. . previously undiscovered evidence . . . undermines confidence in the
conviction or the death sentence.125

In his petition, Williams once more requested DNA testing of the blood on his
shorts.126 On July 25, 2003, despite the fact that DNA analysis had never been
performed, the Indiana Supreme Court again denied Williams’s request.1 2 7 In an
“unprecedented move” on July 28, 2003, Governor O’Bannon granted a stay of
execution to allow for DNA testing.128 O’Bannon stated DNA testing was
necessary “to permit all potentially relevant evidence to be discovered” in light
of the “unique circumstances” of Williams’s case.129

On May 21, 2004, the Indiana Supreme Court reviewed the test
results—which excluded the victims as sources of the blood on Williams’s shorts
except as to one area which was inconclusive, but denied relief.130 The court
reasoned “what the DNA test results seem to show is not much different from
what was presented at trial,”13 1 even though the evidence offered at trial related
only to the blood type of the samples. Once again disagreeing with the Supreme
Court, on July 2, 2004, Governor Kernan commuted Williams’s death sentence
to life without possibility of parole132 due to Williams’s mental status, lesser
degree of culpability compared to his co-defendant who was spared the death
penalty, and “doubt as to Williams’ direct participation” in the crime.133

Governors O’Bannon and Kernan signaled that the post-conviction DNA testing
statute should not be used to limit access to DNA testing, but rather, in the words

IND. CODE § 35-50-2-9(k)) (requiring a showing that “previously undiscovered evidence . . .

undermines confidence in the conviction”), with IND. CODE § 35-38-7-8 (2021) (demanding proof

that “a reasonable probability exists that the petitioner would not have been prosecuted, convicted,

or received as severe a sentence,” if DNA results had been obtained).

125. IND. CODE § 35-50-2-9(k) (2021).

126. Williams, 793 N.E.2d at 1024.

127. Id.

128. Fred Kelly, Governor Stalls Execution; DNA Will Be Tested, INDIANAPOLIS ST AR, July

29, 2003, at A1 [https://perma.cc/NX54-8RY7]; see also Joel M. Schumm, Recent Developments

in Indiana Criminal Law and Procedure, 37 IND. L. REV. 1003, 1008 (2004).

129. Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 38 IND.

L. REV. 999, 1028 (2005).

130. Williams v. State, 808 N.E.2d 652, 660 (Ind. 2004). From the DNA tests, the male victim

“could not be excluded as a source for the second spot of blood on the shorts,” because the sample

included a mixture of DNA types. Id. at 659-60.

131. Id. at 660.

132. See Mary Beth Schneider & Theodore Kim, Governor Spares Life of Inmate; Convicted

Killer of Gary Couple Was to be Executed Next Week, INDIANAPOLIS STAR, July 3, 2004, at 1A

[https://perma.cc/KA47-NH4P].

133. Schumm, supra note 129, at 1028 (citing Schneider & Kim, supra note 132).



2022] BLOOD, SWEAT, AND TEARS 177

of Governor O’Bannon, should be used to “permit all potentially relevant
evidence to be discovered.”134

Then in Lacey v. State,135 the Indiana Supreme Court limited the reach of
Williams by reversing a court’s denial of post-conviction relief and ordering the
State to deliver a hat from the crime scene to Lacey’s counsel for DNA testing.136

Notably, the court determined the DNA testing statute137 did not control.138 Rather
the “normal rules of discovery”139 in post-conviction proceedings, which “entitled
[Lacey] to employ reasonable means . . . to obtain evidence in support of his
petition,”140 applied. The court furthered that the State’s attempt to use the DNA
testing statute to limit access to DNA analysis contravened the purpose of the
legislation to provide “convicted felons greater access to DNA testing . . . to
exonerate themselves.”141 Although Lacey reveals an unresolved tension between
the post-conviction rules of court and the DNA testing statute,142 the decision
develops authority that post-conviction discovery rules should be used to
facilitate, not restrict, DNA testing.143

In 2009, the Supreme Court of the United States decided to leave post-
conviction evidence procedures to the states in District Attorney’s Office for the
Third Judicial District v. Osborne.144 There, Osborne brought a Section 1983
claim proposing the recognition of a substantive due process right of access to
post-conviction DNA testing.145 Relying on Brady v. Maryland, the Court noted
that federal due process requires prosecutors to disclose exculpatory evidence to
the defendant before trial,146 but that the duty does not extend to the post-
conviction context.147 Osborne held that due process was satisfied by the state
statutes under review and the federal habeas remedies available to a defendant
seeking post-conviction relief.148 Despite recognizing that “[m]odern DNA testing
can provide powerful new evidence unlike anything known before,” the Court

134. Schumm, supra note 128, at 1008 (citing Kelly, supra note 128).

135. Lacey v. State, 829 N.E.2d 518 (Ind. 2005).

136. Id. at 520.

137. Indiana Code §§ 35-38-7-1 to 7-19 (2021).

138. Lacey, 829 N.E.2d at 519.

139. Id.

140. Id.

141. Id. (quoting Joel M. Schumm, Survey: Criminal Law and Procedure: Recent

Developments in Indiana Criminal Law and Procedure, 35 IND. L. REV. 1347, 1348 (2002)

(emphasis added by the Indiana Supreme Court)).

142. Id.

143. Id. A petition for DNA testing of evidence, “whether denominated as a petition filed

pursuant to Ind. Code § 35-38-7-5 or not, is considered a Petition for Post-Conviction Relief.” IND.

POST-CONVICTION RULE 1(1)(d).

144. 557 U.S. 52 (2009).

145. Id. at 55-56.

146. Brady v. Maryland, 373 U.S. 83, 87 (1963).

147. Osborne, 557 U.S. at 55-56.

148. Id.



178 INDIANA LAW REVIEW [Vol. 55:163

rejected Osborne’s claim149 because it would “thrust the Federal Judiciary into an
area previously left to state courts and legislatures.”150 

In the words of the former Chief Justice of the Indiana Supreme Court,
Randall T. Shepard, the outcome in Osborne underscores:

[t]he rights of Americans cannot be secure if they are protected . . . only
by one court. Civil liberties protected only by a U.S. Supreme Court are
only as secure as the Warren Court or the Rehnquist Court wishes to
make them. The protection of Americans against tyranny requires that
state supreme courts and state constitutions be strong centers of authority
on the rights of the people.151

Despite the crucial role states play in protecting civil liberties, for more than a
decade after Osborne, Indiana has failed to take steps to develop meaningful
standards to preserve biological evidence to remedy potential wrongful
convictions.152

2. Indiana’s DNA Testing Statute: An Insurmountable Burden.—The
common law of DNA access in Indiana provides the backdrop to the DNA testing
statute itself.153 Under the statute, a court may—not must—order DNA testing for
petitioners convicted of a felony upon a prima facie showing on four elements.154

First, a petitioner must establish the evidence sought to be tested is material to
identifying the petitioner as the perpetrator of the offense that resulted in
conviction.155 Second, the evidence must meet a chain of custody standard to
demonstrate its reliability.156 Third, the petitioner must prove that the evidence
sought to be tested was not previously tested, or was tested, but the requested
DNA testing will provide results that will more likely identify the perpetrator or
will have a reasonable likelihood of contradicting prior test results.157 Lastly, a
post-conviction litigant must show that a reasonable probability exists that the
petitioner would not have been prosecuted, convicted, or received as severe a

149. Id. at 69.

150. Id. at 56, 62, 73 n.4. But see Skinner v. Switzer, 562 U.S. 521, 525 (2011) (concluding

a defendant’s complaint alleging a state post-conviction DNA testing statute violated procedural

due process was “sufficient to cross the federal court’s threshold”); Newton v. City of New York,

779 F.3d 140, 153 (2d Cir. 2015) (finding that, because state “law provide[d] a convicted prisoner

a liberty interest in demonstrating his innocence with newly available DNA evidence,” the city

could be held liable in a Section 1983 action for its inadequate evidence management system that

deprived the exonerated petitioner access to the state remedy).

151. Shepard, supra note 107, at 586.

152. But see SB 263, supra note 30.

153. 2001 Ind. Acts 262, Pub. L. 49-2001 (codified at IND. CODE §§ 35-38-7-1 to 7-19). 

154. IND. CODE § 35-38-7-8 (2021). The pending legislation does not affect the burden of

proof to access post-conviction DNA testing. See SB 263, supra note 30.

155. IND. CODE § 35-38-7-8(1) (2021).

156. Id. § 35-38-7-8(2).

157. Id. § 35-38-7-8(3).



2022] BLOOD, SWEAT, AND TEARS 179

sentence for the offense, if exculpatory DNA results had been obtained.158

Although the statute permits post-conviction DNA testing, petitioners must
overcome an incredibly high burden and the final decision is discretionary.

C. Access to DNA Databases: Defense Counsel Must Obtain a Court Order

A minority of jurisdictions provide DNA database searches to post-conviction
litigants upon successful petitions for DNA testing—nine states159 and the federal
system.160 But to reap the maximum benefits of evidence reform through
biological evidence preservation and broadened DNA testing opportunities, DNA
database comparison is pivotal.161 In addition to excluding the victim or the
defendant as a source of the DNA from the evidence, a DNA database search is
necessary to realize the goal of DNA testing—identifying perpetrators.162 For
both victims and the wrongly convicted, determining the identity of the true
offender is a final hurdle towards closure.163 

Currently, Indiana enters DNA profiles into NDIS and the Indiana DNA
database.164 But when DNA testing is approved in the post-conviction setting, no
statute requires the State run a database search and deliver the results to the
defense.165 When a petition for DNA testing is granted, the court must “order the
production of any laboratory reports that are prepared in connection with the
testing and analysis.”166 In other words, the statute specifies that after testing,
defense counsel is entitled only to the results of that specific DNA analysis,
which may or may not include a database check.167 To guarantee the State
conducts a database search, defense counsel must obtain a separate court order.168

158. Id. § 35-38-7-8(4); cf. id. § 35-50-2-9(k) (mirroring the DNA testing statute standard).

159. The nine states are Colorado, Georgia, Illinois, Maryland, Mississippi, New York, North

Carolina, Ohio, and Texas. See COLO. REV. ST AT. § 18-1-412(9) (2021); GA. CODE ANN. § 5-5-

41(9) (2021); 725 ILL. COMP. STAT. ANN. 5/116-5 (West 2021); MD. CODE ANN., CRIM. PROC. §

8-201(d)(2) (West 2021); MISS. CODE ANN. § 99-39-11(10) (2021); N.Y. CRIM. PROC. LAW §

440.30.1-a(c) (McKinney 2021); N.C. GEN. STAT. § 15A-269 (2021); OHIO REV. CODE ANN. §

2953.74(E) (West 2021); TEX. CODE CRIM. PROC. ANN. art. 64.035 (West 2021).

160. 18 U.S.C. § 3600(e)(1)(B) (2018).

161. Access to Post-Conviction DNA Testing, INNOCENCE PROJECT, https://innocenceproject.

org/causes/access-post-conviction-dna-testing/ [https://perma.cc/89KJ-R77Z] (recommending all

DNA tests include database checks).

162. Kreag, supra note 54, at 810.

163. McGlynn, supra note 33, at 732.

164. 34 U.S.C. § 12592 (2018); Combined DNA Index System (CODIS), FBI, https://www.fbi.

gov/services/laboratory/biometric-analysis/codis [https://perma.cc/PL2G-ABKW]; 240 IND. ADMIN.

CODE 8-1-2 (2021).

165. IND. CODE § 10-13-6-15(5) (2021) (Forensic labs “may disclose . . . DNA analysis results

. . . [f]or purposes of postconviction DNA testing” under Ind. Code § 35-38-7.).

166. Id. § 35-38-7-13. 

167. Id. § 10-13-6-15(5).

168. Id.§ 35-38-7-13.



180 INDIANA LAW REVIEW [Vol. 55:163

The DNA testing statute169 does not include language explicitly addressing
database searches. Nonetheless, DNA evidence advocates argue language
contained in the statute’s prima facie showing that the evidence sought to be
tested is “probative of the identity of the perpetrator”170 indicates legislative
intent for DNA database comparisons. If the purpose of DNA testing is to identify
the culprit, then database searches should be a routine aspect of DNA analysis.
But absent an express statutory directive, state actors decide whether to run a
search.171 

III. THE PROPOSAL: STATUTORY REFORM

Through a domino effect, by guaranteeing evidence is preserved, increased
access to DNA technology will provide the truth for litigants whose convictions
rested on flawed science. Biological evidence preservation is also crucial to
identify perpetrators.172 Of the 551 exonerations based on DNA evidence
nationwide,173 the true perpetrators were detected in thirty percent of cases
totaling 165 actual assailants identified.174

Identifying perpetrators, biological evidence reform also benefits sexual
assault victims. Experts estimate hundreds of thousands of rape kits sit untested
in storage facilities across the country in the “rape kit backlog.”175 To ensure rape
kits are analyzed and criminal actions commenced, the Sexual Assault Forensic
Evidence Reporting Act Working Group recommends:

[J]urisdictions that do not have evidence retention laws should adopt
biological evidence retention policies . . . that are victim-centered and
preserve evidence from uncharged or unsolved reported cases for 50
years or the length of the statute of limitations, whichever is greater.176

Simply put, DNA evidence reform is essential to bring justice to sexual assault
victims.

Without uniform storage and retention periods, DNA samples could be

169. Id.

170. Id. § 35-38-7-8(1), (3) (emphasis added).

171. Kreag, supra note 54, at 818.

172. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at iv.

173. Exonerations By Year: DNA and Non-DNA, supra note 19.

174. DNA Exonerations in the United States, supra note 18.

175. Because most states do not have systems that track rape kits and no federal law mandates

tracking, there is no surety of the number of untested rape kits nationwide. See What is the Rape

Kit Backlog?, END THE BACKLOG, http://www.endthebacklog.org/backlog/what-rape-kit-backlog

[https://perma.cc/4VSK-N7HJ].

176. SEXUAL ASSAULT FORENSIC EVIDENCE REPORTING (SAFER) ACT WORKING GROUP,

NAT’L INST. OF JUST., NATIONAL BEST PRACTICES FOR SEXUAL ASSAULT KITS: A

MULTIDISCIPLINARY APPROACH 68-71 (2017), https://www.ojp.gov/pdffiles1/nij/250384.pdf

[https://perma.cc/N8H7-JGYH].



2022] BLOOD, SWEAT, AND TEARS 181

“mishandled, misplaced, lost, or destroyed.”177 To provide closure to victims, aid
law enforcement in identifying and prosecuting perpetrators, and afford the
wrongly convicted an avenue for relief, Indiana must take the next step in
modernizing its criminal justice system: codify biological evidence procedures.
An ideal statute would (1) establish a task force to ascertain best policies to
resolve forensic science issues; (2) mandate evidence retention procedures; (3)
amend the DNA testing statute to expand testing availability; and (4) codify DNA
database searches as a standard feature of DNA analysis. These proposals are
discussed in turn below.

A. Institute a Task Force for Forensic Science Issues

To date, eleven states have established state-level task forces or working
groups to focus on forensic science issues.178 These commissions develop best
practices for the preservation of biological evidence, DNA testing, and database
access.179 Because of the varied resources and management of government
entities, Indiana should commission a task force with statutory authority to
“consult[] relevant stakeholders to strike a balance in creating DNA evidence
standards that allow a degree of professional discretion . . . when necessary.”180

The task force would survey the best methods to meet Indiana’s evidentiary
needs, draft DNA evidence legislation, and aid in the implementation of new
standards.

B. Evidence Retention Statute

In part based on the information provided in this Note, an evidence
preservation bill—embracing many of this Note’s recommendations—was
introduced in the 2022 session of the Indiana General Assembly.181

Notwithstanding this development, the section below outlines the components of
an ideal evidence preservation statute to serve as a resource for future
amendments to SB 263, if enacted, and as a reference for other states.

First, pursuant to current best practices, a statute must stipulate the types of
crimes for which biological evidence is preserved.182 The majority of evidence
retention statutes require preservation for felonies and violent offenses.18 3 The
legislature could adopt aspects of the model rule put forth by the Records

177. BEST PRACTICES FOR EVIDENCE HANDLERS, supra note 61, at iv.

178. The eleven states are California, Connecticut, Florida, Illinois, Louisiana, Oklahoma,

New York, North Carolina, Pennsylvania, Texas, and Wisconsin. See CONSIDERATIONS FOR

POLICYMAKERS, supra note 44, at 9.

179. Id.; see, e.g., OHIO REV. CODE ANN. § 2933.82(C) (West 2010); CAL. PENAL CODE §

11062 (West 2021); Ill. Exec. Order No. 2019-13 (Aug. 16, 2019).

180. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 9.

181. SB 263, supra note 30.

182. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 7.

183. See, e.g., ARIZ. REV. STAT. ANN. § 13-4221(A) (2022); ARK. CODE ANN. § 12-12-105(a);

MONT. CODE ANN. § 46-21-111(1)(a) (2022).



182 INDIANA LAW REVIEW [Vol. 55:163

Management Committee, which requires—in addition to shorter-term retention
for lesser offenses—long-term evidence retention for level one to five felonies
and for murder, life without parole, and death penalty cases.184

Second, consistent with expert recommendations, the statute must specify the
time periods for retention.1 8 5 Following the majority trend, an ideal statute would
mandate the preservation of DNA evidence for the length of incarceration, or for
death penalty cases, life.186

Third, an ideal statute should mandate the automatic preservation of
biological evidence for the decided offenses from the time of collection through
the defined periods.187

Fourth, the statute should enumerate standards for storage facilities to ensure
biological evidence is kept in suitable environments, based on scientific practices,
to prevent its loss, degradation, or contamination.188

Fifth, the statute must detail a formal process for the early disposition of
evidence1 89 of lesser crimes or offenses in which the statute of limitations has
elapsed. The process should involve notification to relevant parties, including the
convicted person, the prosecutor, and the victims.190 The notification should

184. RETENTION OF EVIDENCE MODEL RULE, supra note 86. SB 263 would require

preservation of biological evidence for “violent offense[s] (as defined in IC 11-12-3.7-6),” which

includes, among others, homicide, battery, sex crimes, burglary, kidnapping, arson, and “[a]ny

other crimes evidencing . . . violence.” IND. CODE § 11-12-3.7-6; SB 263, supra note 30.

185. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 7.

186. The time period of incarceration is the standard in twenty-four states and the District of

Columbia. Krista A. Dolan, Creating the Best Practices in DNA Preservation: Recommended

Practices and Procedures, 49 NO. 2 CRIM. LAW BULLETIN ART 6 (2013). SB 263’s amendment to

Indiana Code section 35-33-5-5(g) would mandate preservation of all evidence “in the law

enforcement agency’s possession or control that could be subjected to DNA testing and analysis.

. . for the latest of,” (1) twenty years “from the date the defendant’s conviction becomes final,” or

(2) “[t]he period of the defendant’s incarceration.” SB 263, supra note 30.

187. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 18. SB 263 would require

automatic retention through an amendment to Indiana Code section 35-33-5-5(g): “all evidence of

a violent offense . . . in the law enforcement agency’s possession or control that could be subjected

to DNA testing and analysis shall be preserved[.]” SB 263, supra note 30.

188. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 19. In its current form, SB 263

does not offer guidance on the methods or environments to maintain evidence, but hopefully

relevant state agencies will promulgate specific statewide rules to ensure best storage practices. SB

263, supra note 30.

189. See, e.g., WIS. STAT. ANN. §§ 165.81 (West 2022); OHIO REV. CODE ANN. §

2933.82(B)(6) (West 2022).

190. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 19. SB 263 provides disposal

and notice procedures to be codified at Indiana Code section 35-33-5-5(l): 

The law enforcement agency responsible for disposing of property under subsection (g),

shall do the following: 

(1) Maintain a record of the preserved evidence. 

(2) Schedule a disposal date for the preserved evidence. 



2022] BLOOD, SWEAT, AND TEARS 183

provide an opportunity for the parties to collect the evidence or to dispute the
early disposition of the evidence.191

Sixth, the statute should include an annual disposition review process to help
“avoid the need for additional storage space and staffing.”192 The International
Association for Property and Evidence recommends law enforcement agencies
“have a systematic review process assuring that each item of property and
evidence is evaluated for possible purging on an annual basis.”193 To determine
which evidence should be purged, agencies should consider whether the evidence
relates to a serious offense and whether the statute of limitations has elapsed.194

Seventh, the statute must address the difficulty of storing bulky evidence
items, which may contain biological material, like a car, walls of a house, carpet,
or furniture.195 Because the storage of such evidence can be impractical,196 Indiana
should establish standards for retaining the portions of bulk evidence that contain
biological material.197 In handling large items, ISP labs, which are nationally
accredited, preserve “area(s) recognized as having evidentiary value” by
swabbing or “cutting.”198 The statute should adopt similar guidelines.199

Eighth, the statute must carefully define all relevant terms. The current DNA

(3) Provide notice to the last known address of the defendant and the defendant’s

attorney: 

(A) when the preserved evidence is removed from its secure location; or 

(B) of the date the preserved evidence has been marked for disposal.

SB 263, supra note 30.

191. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 14.

192. JOSEPH T. LATTA & ROBERT E. GILES, INTERNATIONAL ASSOCIATION FOR PROPERTY AND

EVIDENCE, INC., PROFESSIONAL STANDARDS 69 (2016). Though SB 263 contains a process for

disposing of biological evidence from violent offenses, it does not offer any annual or ongoing

review process to ensure evidence of lesser offenses does not overcrowd storage facilities. SB 263,

supra note 30.

193. LATTA & GILES, supra note 192, at 69.

194. Id.

195. BEST PRACTICES FOR EVIDENCE HANDLERS, supra note 61, at 3.

196. Further, if the origin of a DNA sample is well documented (e.g., through photographs or

case files), it may not be necessary to store the entire piece of evidence. Id.

197. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 18.

198. IND. STATE POLICE LAB. DIV., PHYSICAL EVIDENCE BULLETIN: EVIDENCE PACKAGING

AND SUBMISSION GUIDELINES 2 (2020), https://www.in.gov/isp/labs/files/PEB-20_Evidence_

Packaging_and_Submission_Guidelines_11-19-2020.pdf [http://perma.cc/5TP6-ZP55].

199. SB 263 provides bulk evidence storage procedures, which if enacted, would be codified

at Indiana Code section 35-33-5-5(g): “If the preservation of the evidence is impracticable, the law

enforcement agency shall remove portions of the material evidence likely to contain biological

evidence related to the offense, in a quantity sufficient to permit future DNA testing before

returning or disposing of the physical evidence.” SB 263, supra note 30.



184 INDIANA LAW REVIEW [Vol. 55:163

testing statute200 defines “DNA,”201 “offense,”202 and “victim.”203 In addition, the
retention statute should explain key terms including “biological material,”
“custody,” “profile,” and “state.”204 For guidance on thorough definitions, Indiana
should look to the Mississippi statute.205

Ninth, the statute should specify measures to prevent chain of custody
problems and delineate procedures to rectify chain of custody issues that do arise.
For instance, if evidence cannot be located, a provision could mandate courts to
order the responsible agency to conduct a physical search for the evidence and
file a report of the results.206 

Lastly, the statute must contemplate sanctions for state actors who fail to
comply and remedies for litigants who are wronged by the failure. Despite
adopting statutory preservation requirements, denial of access to biological
evidence could occur due to loss of evidence, contamination, or mistaken,
negligent, or “bad faith” destruction.207

Two existing Indiana statutes include sanctions for evidence destruction in
the post-conviction setting. First, the post-conviction DNA testing statute
provides that if “evidence is intentionally destroyed after the court orders its
preservation, the court may impose appropriate sanctions.”208 Second, the Indiana
obstruction of justice law prohibits evidence tampering.209 A person commits
obstruction of justice if he or she “alters, damages, or removes any record . . .
with intent to prevent it from being . . . used as evidence in any official
proceeding,”210 which encompasses the post-conviction context. 

In addition to these statutes, Indiana courts apply the “bad faith” destruction
of evidence standard set forth by the Supreme Court of the United States in

200. IND. CODE § 35-38-7-1 to 7-19 (2021).

201. Id. § 35-38-7-2 (defining DNA as “deoxyribonucleic acid”).

202. Id. § 35-38-7-3.

203. Id. § 35-38-7-4.

204. Dolan, supra note 186. SB 263 does not define any new terms. SB 263, supra note 30.

205. The Mississippi statute meticulously defines “biological evidence,” “custody,” “profile,”

and “state.” MISS. CODE ANN. § 99-49-1 (2022). See also MASS. GEN. LAWS ch. 278A, § 1 (2022);

OHIO REV. CODE ANN. § 2933.82 (West 2022).

206. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 20. Aside from a provision

permitting courts to impose sanctions for statutory violations, SB 263 does not outline protocol

applicable when evidence is lost due to chain of custody problems. SB 263, supra note 30.

207. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 15. SB 263 stipulates the

following sanctions and remedies, which if enacted, would be codified at Indiana Code section 35-

33-5-5(m): “Failure of a law enforcement agency to follow the procedures described in this section

may constitute contempt of court. However, failure to follow the[se] procedures . . . shall not be

grounds for reversal of a conviction unless the defendant proves a violation of the defendant’s due

process rights.” SB 263, supra note 30.

208. IND. CODE § 35-38-7-14(3) (2021). SB 263 does not alter this provision. SB 263, supra

note 30.

209. IND. CODE § 35-44.1-2-2 (2021).

210. Id. § 35-44.1-2-2(a)(3) (emphasis added).



2022] BLOOD, SWEAT, AND TEARS 185

Arizona v. Youngblood,211 which provides that bad faith destruction of
“potentially useful” evidence violates due process and may entitle a defendant to
a remedy.212 In Indiana, to prove bad faith “a defendant must show that the State
failed to preserve the evidence pursuant to a ‘conscious doing of wrong because
of dishonest purpose or moral obliquity.’”213 However, Youngblood and the
“Indiana cases following it all deal with the destruction of evidence prior to the
conclusion of a defendant’s trial”;214 whether Youngblood applies in the post-
conviction setting is undecided. But even if applicable to the post-conviction
context, the standard provides relief only in the most egregious cases.215 Due to
the unique role of DNA in exonerations, an evidence retention statute should
specify a burden of proof216 for inadvertent or negligent biological evidence
destruction.217 

Despite Indiana case law and the two statutes related to evidence destruction,
the ability of wronged litigants to pursue sanctions is limited because the burden
to prove intentional destruction of evidence is unrealistic. To protect litigants
whose evidence is unintentionally lost or destroyed, the statute should set forth
a separate standard. For example, if the responsible agency loses or destroys
biological evidence in connection with a case, and “the court finds that biological
evidence was destroyed in violation of . . . the statute,”218 judges could have
discretion to order appropriate sanctions and remedies. By adopting a standard for
evidence loss or destruction that recognizes the justice system’s tilt in favor of
law enforcement, the legislature would enact a flexible and realistic remedy.

In sum, an ideal evidence preservation statute should provide (1) the types of
crimes for which evidence retention is required, (2) the time periods for
preservation, (3) the standard to trigger retention (i.e., automatic), (4) adequate
storage environments, (5) early disposition procedures, (6) annual disposition
review processes, (7) best methods for bulk evidence storage, (8) clear
definitions, (9) measures to prevent and resolve chain of custody problems, and

211. 488 U.S. 51, 58 (1988).

212. Id. at 58.

213. Terry v. State, 857 N.E.2d 396, 408 (Ind. Ct. App. 2006).

214. Id. at 407; see also Land v. State, 802 N.E.2d 45, 49 (Ind. Ct. App. 2004); Blanchard v.

State, 802 N.E.2d 14, 26 (Ind. Ct. App. 2004).

215. See, e.g., Illinois v. Fischer, 540 U.S. 544, 545 (2004) (concluding that defendant’s due

process rights were not violated when police, in “good faith,” destroyed alleged cocaine evidence

after defendant filed a discovery motion to retest the evidence).

216. Principles of federalism permit states to adopt more rigorous evidence preservation

standards than those required by the federal constitution. Youngblood, 488 U.S. at 58.

217. Fischer, 540 U.S. at 549 (Stevens, J., dissenting) (quoting Youngblood, 488 U.S. at 61

(Stevens, J., concurring)) (“[T]here may well be cases in which the defendant is unable to prove

that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so

critical to the defense as to make a criminal trial fundamentally unfair.”).

218. Preservation of Evidence, supra note 22. The remedial provision included in SB 263 is

a crucial advancement from the previously available sanctions because it does not require proof of

intentional destruction of evidence. SB 263, supra note 30.



186 INDIANA LAW REVIEW [Vol. 55:163

(10) sanctions and remedies for noncompliance.219 By defining practices in these
ten areas, the General Assembly would codify a clear, complete statute that
achieves its purposes: to deter improper evidence management, to promote
transparency in the justice system, to offer reprieve to victims, and to guarantee
due process to defendants.

C. Amend the Burden of Proof to Obtain DNA Testing

In addition to an evidence retention statute, Indiana should amend the current
DNA testing statute.220 Although DNA testing is available in all U.S. jurisdictions
upon meeting certain criteria,221 Indiana should lessen the prima facie showing
necessary to obtain DNA testing. Currently, DNA testing is available only to
felony offenders who meet specific conditions and the ultimate decision is
discretionary.222 But the standard should not rest on showing the results be
“material” or “probably impacted the verdict”; such standards allow the court to
deny any testing request it considers doubtful to be favorable due to other
evidence of guilt.223 Rather, Indiana should mandate DNA testing upon a showing
that the results of the testing would be relevant to identity of the perpetrator of the
crime. Tracking the Massachusetts approach, Indiana should amend its statute
such that a petitioner must establish “the testing results would bear on the identity
of the perpetrator, not that the result will be favorable to the defendant[.]”224 By
amending the prima facie showing, the legislature will heed Governor
O’Bannon’s instruction that the DNA testing statute should be used “to permit all
potentially relevant evidence to be discovered.”225

219. SB 263 adopts six of the ten features of an ideal evidence preservation statute. The bill

lacks definitions of the terms “biological material,” “custody,” “profile,” or “state,” and although

the bill states the evidence “shall be preserved by the law enforcement agency” in possession of the

evidence, there is no direction on how or where exactly to maintain the evidence. Also, the bill does

not provide a process for periodic reviews of all evidence in storage to ensure continued purging;

rather, it only notes disposal process for the biological evidence contemplated in the bill. Lastly,

the bill does not reflect any specific measures to prevent and resolve chain of custody problems

aside from the remedial provision for noncompliance. SB 263, supra note 30.

220. IND. CODE §§ 35-38-7-1 to 7-19 (2022).

221. Ian J. Postman, Note, Re-Examining Custody and Incarceration Requirements in

Postconviction DNA Testing Statutes, 40 CARDOZO L. REV. 1723, 1727 n.36 (2019).

222. IND. CODE §§ 35-38-7-1 to 7-19 (2022).

223. See discussion of Williams v. State, 808 N.E.2d 652, 663 (Ind. 2004) supra Section

II.B.1.

224. Theodore Tibbits, Post-Conviction Access to DNA Testing: Why Massachusetts’ 278A

Statute Should Be the Model for the Future, 36 B.C.J.L. & SOC. JUST. 355, 385 (2016) (citing

Commonwealth v. Wade, 5 N.E.3d 816, 819 (Mass. 2014)); MASS. GEN. LAWS ch. 278A, § 2

(2021) (To obtain a post-conviction DNA test, a petitioner must show “the analysis has the potential

to result in evidence that is material to [his or her] identification as the perpetrator.”).

225. Schumm, supra note 128, at 1008 (emphasis added).



2022] BLOOD, SWEAT, AND TEARS 187

D. Provide Access to DNA Database Searches with All
Post-Conviction DNA Tests

Lastly, through a new provision to the post-conviction DNA testing statute,
Indiana should mandate DNA database comparison searches as a part of all DNA
analyses. Ideally, the database provision would include: definitions; standards for
obtaining a database search (e.g., automatic upon DNA testing); defense counsel
access to a report of the search;226 and detailed instructions for law enforcement.
For guidance, Indiana can look to the statutes of other states.

For the depth of a search, Indiana should look to Illinois’ statute, which
provides defendants—both pre-trial and post-conviction—the opportunity to
motion for a DNA database search.227 Though the statute requires only a minimal
showing that DNA evidence is material or relevant to the defendant’s case, the
ultimate decision is discretionary: “a court may order a DNA database search.”228

Despite its permissive nature, the Illinois statute affords a comprehensive search
when one is ordered.229 The searches may involve comparing a crime-scene DNA
sample to both identified offender profiles and profiles from unsolved crimes
stored in local and national databases.230 Further, Illinois provides defense access
to all documents generated in relation to the database analysis.231 To afford a
thorough search and increase the chance of identifying perpetrators, like Illinois,
Indiana should prescribe the specific types of database comparisons. 

To determine when a database search should accompany DNA testing,
Indiana should model its approach after North Carolina. North Carolina mandates
that, upon a post-conviction litigant’s showing of five criteria, “the court shall
grant the motion for DNA testing and . . . the run of any profiles obtained from
the testing.”232 Thus, when DNA analysis is ordered, the assessment must include
a database search.233 North Carolina illustrates the legislature’s ability to
guarantee database searches as a standard aspect of DNA analysis.

In delineating step-by-step procedures for database searches, Indiana should
take note of Ohio’s law.234 In Ohio, if the court grants a petition for post-

226. See Ethan Bronner, Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data, N.Y.

TIMES, Jan. 3, 2013, at A1, https://www.nytimes.com/2013/01/04/us/lawyers-saying-dna-cleared-

inmate-pursue-access-to-data.html [https://perma.cc/H64R-4CTZ] (quoting then President of the

National Association of Criminal Defense Lawyers, Steven Benjamin) (“Juries expect the defense

to be able to prove that if your client didn’t do it, who did? Science doesn’t belong to the

government, but they act like it does. Unless the defense is given access to this information, the

playing field remains uneven in criminal justice.”).

227. 725 ILL. COMP. STAT. 5/116-5 (2021).

228. Id. (emphasis added).

229. Id.

230. Id.

231. Id. at 116-5(c).

232. N.C. GEN. STAT. § 15A-269(b) (2021).

233. Id. at 269(a)-(b); see also TEX. CODE CRIM. PROC. ANN. art. 64.035 (West 2021).

234. OHIO REV. CODE ANN. § 2953.74(E) (West 2021).



188 INDIANA LAW REVIEW [Vol. 55:163

conviction DNA testing, the court may also order a database search.235 Although
Ohio sanctions judicial discretion, the statute provides detailed “instructions for
law enforcement agencies conducting the DNA database searches.”236 By
providing uniform procedures, the Ohio justice system can promote fairness and
transparency in the depth and quality of each database search.

In sum, Indiana should mandate DNA database searches as part of all post-
conviction DNA tests. To encourage veracity, the provision should include
detailed procedures for law enforcement and forensic laboratories and give
defendants access to reports of the search.

IV. IMPLICATIONS OF THE PROPOSAL

Part IV addresses anticipated criticism by assessing the ramifications of
implementing this proposal and offering approaches to mitigate adverse
consequences.  

A. Constitutional Privacy Interests

Privacy advocates argue uniform DNA storage infringes on the citizens’ right
to be free from government intrusion guaranteed by the state237 and federal238

constitutions. Thus, Indiana must determine whether the interests in public safety,
closure to victims, and crime detection and prevention outweigh personal privacy
interests.

In spite of privacy concerns, Indiana already endorses DNA storage as law
enforcement are mandated to collect two DNA cheek swabs from felony
arrestees,239 which are submitted to the ISP lab.240 The lab undertakes DNA
analysis on one cheek swab and catalogues the DNA profile into NDIS and the
local database.241 The second swab is retained in a storage facility for future
use.242 DNA collection enables law enforcement to check the databases for
matches with DNA profiles gathered from other crimes.243 By adopting a DNA
collection statute for felony arrestees, Indiana joins the majority of states24 4 and
signals that the ability of DNA evidence to solve crimes outweighs the privacy

235. Id.

236. Id.; McGlynn, supra note 33, at 736.

237. IND. CONST. art. I, § 11.

238. U.S. CONST. amend. IV; Ken Strutin, DNA Without Warrant: Decoding Privacy,

Probable Cause and Personhood, 18 RICH. PUB. INT. L. REV. 319, 324-26 (2015); Martin, supra

note 62, at 1189.

239. IND. CODE § 10-13-6-10 (2021) (mandating DNA collection for felony arrestees).

240. Telephone Interview with Carl Sobieralski, supra note 97.

241. IND. CODE §§ 10-13-6-8, -10 (2021).

242. Telephone Interview with Carl Sobieralski, supra note 97.

243. IND. CODE § 10-13-6-8 (2021).

244. Associated Press and Indiana Lawyer Staff, Indiana law for felony arrest DNA collection

takes effect, IND. LAW. (Jan. 2, 2018) [https://perma.cc/64X6-ABKG].



2022] BLOOD, SWEAT, AND TEARS 189

interests at issue.245 
Notwithstanding opposing DNA collection, privacy activists concede that if

a state routinely collects DNA samples, uniform DNA evidence procedures are
essential to minimize the risk of constitutional violations.246 Because Indiana
gathers DNA from felony arrestees, the state should take preventative
measures—through the procedural framework set forth in this Note—to protect
individual privacy after DNA is seized, tested, and stored.

B. The Fiscal Impact

Critics will argue this Note’s proposals are cost prohibitive, because
government agencies often lack adequate funding to maintain operations.247

Without funds, a statute forcing agencies to build evidence storage facilities or
hire additional employees is not feasible.

But technology and systems are in place to store evidence containing
biological material,248 and Indiana can take steps to decrease or eliminate the need
to build additional storage facilities. To minimize costs, agencies must reallocate
space for evidence from the most serious offenses, maintain purging procedures,
and retain “cuttings” of bulky evidence.249

Simply put, moving forward is impossible in the absence of uniform practices
to store and maintain biological evidence. According to the International
Association of Property and Evidence, anecdotally sixty-five to ninety percent of
evidence in storage rooms is misdemeanor evidence.250 If this estimate holds true
for Indiana, the State has an option to redirect space.

In addition to implementing evidence room practices to alleviate spatial
concerns, by codifying state-wide procedures for evidence retention, Indiana will
become eligible for federal funds. A federal grant known as the Postconviction
Testing of DNA Evidence Program251 awards funds to states to “help defray the

245. Those wrongfully arrested may request removal of their DNA profiles from the database.

Request for Removal from the DNA Database, FAQs, ISP Laboratory Division, INDIANA.GOV,

https://www.in.gov/isp/labs/2544.htm [https://perma.cc/F2R8-7UNA].

246. Gabrielle A. Sulpizio, Your Body, Your DNA: Addressing the Constitutionality of

Databanked DNA Under the Fourth Amendment, 10 CHARLESTON L. REV. 417, 443 (2016).

247. CONSIDERATIONS FOR POLICYMAKERS, supra note 44, at 11.

248. Telephone Interview with Carl Sobieralski, supra note 97 (relaying that the ISP labs

retain the vast majority of evidence submitted, either as a whole or a cutting).

249. Other agencies throughout the state should follow the lead of Indiana State Police labs,

which continually audit storage rooms to dispose of unnecessary evidence and retain all biological

material. INDIANA STATE POLICE LAB. DIV., supra note 96.

250. LT. JOSEPH T. LATTA & CHIEF GORDON A. BOWERS, PROPERTY AND EVIDENCE BY THE

BOOK 263 (2d ed. 2011).

251. In 2004, Congress passed the Justice for All Act, which adopted the Kirk Bloodsworth

Post Conviction DNA Testing Grant Program. Justice for All Act of 2004, Pub. L. No. 108-405,

§ 412, 118 Stat. 2260, 2284-85 (codified as amended at 34 U.S.C. § 40727 (2018)).



190 INDIANA LAW REVIEW [Vol. 55:163

costs of post-conviction DNA testing”252 and prevent wrongful convictions and
the average award is nearly 500,000 dollars.253 

To qualify for the program, applicants must submit a certification from the
chief legal officer of the State, typically the Attorney General, that the State
provides access to post-conviction DNA testing and that “reasonable measures
are taken by all jurisdictions within the State to preserve [biological] evidence.”254

Admittedly, a preservation law is not required for Attorney Generals to certify.
The preservation prerequisite can be met through local ordinances, rules, or
regulations, so long as all local jurisdictions take “reasonable measures” to
preserve biological evidence.255 At present, almost half of Indiana counties do not
have evidence retention standards;2 56 consequently, Indiana would not qualify for
funding unless SB 263 passes.

Indiana should also encourage local governments with forensic science units
to apply for the Paul Coverdell Forensic Sciences Improvements Grants
Program,257 which awards funding aimed “to improve the quality and timeliness
of forensic science . . . services in the state,” and “to eliminate a backlog in the
analysis of forensic science evidence.”258 And since 2016, the Judiciary Courts
of the State of Indiana, the Indiana Criminal Justice Institute, and the City of Fort
Wayne have received a total of six Coverdell awards—over $1,500,000.259 

Financial concerns are addressed through best practices; by reallocating
storage space and purging inventory, the State avoids the need to build additional
storage facilities. Further, adopting statewide evidence retention procedures will
allow Indiana to qualify for federal funds.

252. 34 U.S.C. § 40727 (2018).

253. In 2019, neighboring states with evidence preservation laws were awarded grants:

Kentucky Department of Public Advocacy, $861,650; University of Illinois Springfield, $304,626;

Cook County (Illinois) State’s Attorney’s Office, $816,325; Michigan Department of Attorney

General, $734,930; and Michigan State Appellate Defender Office, $165,810. See FY 2019

Postconviction Testing of DNA Evidence, BUREAU OF JUSTICE ASSISTANCE, May 6, 2019,

https://bja.ojp.gov/funding/opportunities/bja-2019-15423 [https://perma.cc/BG8S-9VD3].

254. U.S. DEP’T OF JUSTICE, NAT’L INST. OF JUSTICE, POSTCONVICTION TESTING OF DNA

EVIDENCE 5, 22 (2019), https://nij.ojp.gov/sites/g/files/xyckuh171/files/media/document/NIJ-2019-

15423.pdf [https://perma.cc/49S2-CBBZ].

255. Id. at 22.

256. See supra notes 90-93 (listing the local rules for each county).

257. 34 U.S.C. §§ 10561-10566 (2018).

258. BUREAU OF JUST. ASSISTANCE, PAUL COVERDELL FORENSIC SCIENCE IMPROVEMENT

GRANTS PROGRAM – COMPETITIVE, FY 2020 COMPET IT IVE GRANT SOLICITATION 5-6 (2020),

h ttps://bja.ojp.gov/sites/g/files/xyckuh186/files/media/docu m en t/bja-2 0 2 0 -1 8 4 3 3 .pdf

[https://perma.cc/K86C-ATWG].

259. See Awards, Funding & Awards, BUREAU OF JUST. ASSISTANCE, OFF. OF JUST.

PROGRAMS, U.S. DEP’T OF JUST., https://bja.ojp.gov/funding/awards/list?field_award_status_value=

All&state=IN&field_funding_type_value=All&fiscal_year=&combine_awards=Coverdell&aw

ardee=&city= [https://perma.cc/QA39-WAAH].



2022] BLOOD, SWEAT, AND TEARS 191

C. Absence of Unity in the Criminal Justice System

Potential funding aside, will executing uniform procedures be impracticable?
Despite fragmentation in the criminal justice system, Indiana agencies have
previously collaborated to advance public policies and could do the same in
implementing DNA evidence practices.260 

For example, in 2017, Chief Justice Loretta Rush of the Indiana Supreme
Court co-founded the National Judicial Opioid Task Force in reaction to the
opioid crisis.261 In 2019, the task force issued a report delivering policy
recommendations to state governments, highlighting the court system’s
responsibility to bring together “government agencies and community
stakeholders to address the opioid epidemic and [its] causes.”262 The Indiana
judiciary’s response to the opioid epidemic shows that the courts are willing and
able to work with the other branches to address issues that taint the credibility of
the criminal justice system. A similar approach can be taken in response to
antiquated evidence retention procedures destined to thwart justice.

D. Judicial Economy: “Flooding” the Courts

Finally, critics will assert that reducing the prima facie showing in the DNA
testing statute is unwarranted because the petitioners already “had their day in
court.” Will a decreased burden of proof open the floodgates for post-conviction
cases and strain public resources?

The possibility of new claims is not a worthy excuse for the use of ill-defined
procedures that yield preventable mistakes. Implementing uniform evidence
procedures will promote equity in the criminal justice system by providing
Hoosiers the opportunity to solve cold cases and prove innocence. At any rate,
DNA testing is dependent on evidence retention. Assuming that evidence can be
located, convicted persons that were never able to test evidence should be given
the chance.263 Additionally, DNA analysis has become increasingly accurate in
the past fifteen years.264 Thus, retesting evidence that produced inconclusive
results many years ago is merited. 

Because much of the DNA evidence from past convictions has either been

260. For example, the Records Management Committee supervised the Language Access Task

Force. See Order Amending Administrative Rule 4, No. 19S-MS-41 (Ind. Apr. 29, 2019),

https://www.in.gov/judiciary/files/order-rules-2019-admin4.pdf [https://perma.cc/8SN2-YZ33].

261. NATIONAL JUDICIAL OPIOID TASK FORCE, CONVENING, COLLABORATING, CONNECTING:

COURTS AS LEADERS IN THE CRISIS OF ADDICTION 5 (2019), https://www.ncsc.org/__data/assets/

pdf_file/0018/15840/njotf_final_report_111819.pdf [https://perma.cc/938L-RTDD].

262. Id. at 4.

263. The Teague v. Lane standard for the retroactivity of procedural rules to final convictions

is inapplicable because this Note proposes a statute. 489 U.S. 288 (1989).

264. Mary May, Next Generation Forensics: Changing the role DNA plays in the justice

system, HARV. U.: SCIENCE IN THE NEWS (Nov. 9, 2018), http://sitn.hms.harvard.edu/flash/2018/

next-generation-forensics-changing-role-dna-plays-justice-system/ [https://perma.cc/4XSG-S462].



192 INDIANA LAW REVIEW [Vol. 55:163

routinely destroyed or has already been tested, it is unlikely that the proposed
statute’s application will cause a “flood” of petitions. In large part, this proposal
is a preventative measure to protect future claims and to “promote discovery of
the truth.”265 Though it may not be feasible to right the injustices of each person
whose evidence has been mishandled or destroyed, Indiana should nevertheless
offer the benefits of the proposed statute to those already convicted.

CONCLUSION

Osborne left the individual states to define the contours of evidence access
for post-conviction litigants.266 But with the rise in media coverage on wrongful
convictions,267 the Supreme Court again may be inclined to address post-
conviction relief issues through a federal due process lens. Until then, Indiana
should keep pace with the procedural safeguards adopted by other states. To
shield victims and prevent wrongfully convictions, Indiana should embrace the
components outlined in this Note.

Fortunately, the evidence in William Barnhouse’s case was preserved and the
prosecutor consented to DNA testing.268 But not all post-conviction litigants fare
the same in a system characterized by law enforcement discretion.269 Indiana’s
lack of evidence preservation procedures to date is inconsistent with the intent of
the legislature to provide persons alleging wrongful convictions, upon a showing
of certain criteria, with a chance to be exonerated through post-conviction DNA
testing.270 Without appropriate DNA evidence legislation in Indiana, the
possibility remains that wrongly convicted persons, whose exoneration can be
attained through DNA analysis, will be without an adequate opportunity for post-
conviction relief.

265. Bedolla v. State, 123 N.E.3d 661, 667 (Ind. 2019) (internal citation omitted).

266. Dist. Att’y’s Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52 (2009).

267. See, e.g., THE CENTRAL PARK FIVE (Sundance Selects 2012); MAKING A MURDERER

(Netflix 2015); 13TH (Netflix 2016); BRIAN BANKS (Hulu 2018); THE INNOCENT MAN (Netflix

2018); TRIAL BY FIRE (Hulu 2018); WHEN THEY SEE US (Netflix 2019); JUST MERCY (Warner Bros.

Pictures 2019); THE INNOCENCE FILES (Netflix 2020); TRIAL 4 (Netflix 2020).

268. E-mail Interview with Eric Hoffman, supra note 12.

269. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505,

526 (2001).

270. IND. CODE §§ 35-38-7-1 to 7-19 (2021); Lacey v. State, 829 N.E.2d 518, 520 (Ind. 2005).