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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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In <a href="http://publicdocs.courts.mi.gov:81/opinions/final/COA/20150707_C315982_77_315982O.opn.pdf" target="_blank" rel="noreferrer noopener">People v. Poole</a>, No. 315982, the Court of Appeals ruled that blood samples sought to be tested for DNA are material to the issue of a convicted felon’s identity as the perpetrator of the underlying crime, even where blood-type testing presented at the 1989 trial excluded the defendant. In so doing, the Court of Appeals also clarified the proper approach to analyze whether the defendant’s request for DNA testing must be granted under MCL 770.16. Because the trial court either improperly conflated the two phases of MCL 770.16 or improperly found that the biological material at issue was immaterial to the perpetrator’s identity, the Court of Appeals reversed and remanded for the trial court to order DNA testing.

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Defendant was convicted of first-degree murder in 1989. At trial, an expert in forensic serology testified that type O blood, which matched the victim’s blood type, was found on the victim’s clothing and on stones and grass recovered from the crime scene. A stone found in the victim’s pants had type A blood on it. Other testimony presented at trial revealed that defendant’s blood type is AB. On the basis of non-forensic circumstantial evidence, the jury nevertheless convicted defendant.

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MCL 770.16 provides that, on the petition of an incarcerated felon convicted before January 8, 2001, the circuit court for the county in which the defendant was sentenced must order DNA testing if the defendant meets the requirements of MCL 770.16(1)–(4). Importantly for this case, under MCL 770.16(4)(a) the defendant must present “prima facie proof that the evidence sought to be tested is material to the issue of the convicted person’s identity as the perpetrator of, or accomplice to, the crime that resulted in the conviction.” After the DNA testing is ordered and the results are provided to the court pursuant to MCL 770.16(5)–(6), the court considers the defendant’s motion for new trial under MCL 770.16(7)–(8). Where the results show that the defendant is not the source of the biological material, MCL 770.16(8) allows for a new trial if, among other requirements, “the defendant’s purported exclusion . . . balanced against the other evidence in the case, is sufficient to justify the grant of a new trial.”

In denying the defendant’s petition, the trial court noted that the convicting jury had been fully aware that the defendant was not the source of any of the blood. The trial court therefore concluded that any DNA testing that excluded the defendant as a donor would add nothing of relevance in a new trial. It was unclear if the trial court reasoned under MCL 770.16(4)(a) that the blood samples were immaterial to the issue of the defendant’s identity as the perpetrator, or if its analysis jumped ahead to MCL 770.16(8) and balanced the DNA test’s presumed exclusion of the defendant against the other evidence in the case. Whichever approach the trial court actually employed, the Court of Appeals found error in its reasoning. Under the two-phase structure of MCL 770.16, it is improper to deny DNA testing based on the hypothetical denial of a future motion for new trial regardless of the DNA testing results. Those results, moreover, might positively identify a particular person as the donor of the blood samples, which would more likely raise a reasonable doubt than would an exclusion of the defendant based on blood type. The Court of Appeals therefore reversed and remanded the case so that the trial court could enter an order directing DNA testing.

The Court of Appeals also addressed its own declaration in People v. Barrera, 278 Mich. App. at 740, relied upon by the trial court, that “where the biological evidence has already excluded a defendant, identity is not an issue.” That statement, the Poole court noted, was being discussed in the context of the requirement under MCL 770.16(4)(b)(iii) that the defendant’s identity as perpetrator was at issue during the trial, and not in the context of the materiality provision in MCL 770.16(4)(a). It was therefore irrelevant to the court’s analysis.

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Madelaine C. Lane

Labor and Employment

COA: DNA is material to defendant’s identify under MCL 770.16(3) even where blood-type evidence at trial excluded defendant as perpetrator

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COA: DNA is material to defendant’s identify under MCL 770.16(3) even where blood-type evidence at trial excluded defendant as perpetrator

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