Yesterday a statute took effect in Texas. All prosecutors and parole boards now have access to DNA evidence for crimes for which the statute of limitations has passed. This will allow them to use the information to attempt to lengthen the sentence of individuals for crimes in which the statute of limitations has not passed.

For example, say a defendant’s DNA matches that in a rape twenty years ago. Since the statute of limitations has passed he cannot be convicted for the old crime. But now he is charged with a rape that happened last year. The prosecutor could use the evidence of the old rape to attempt to get the defendant the maximum sentence in the newer crime.

If the information is only given to prosecutors and parole boards the law may well violate Wardius v. Oregon In Wardius the Supreme Court said that due process demands that discovery must be mutual. In other words if a statute allows a prosecutor access to information it must also allow the defense access to the information.

If the defense is given the information, the cost of defending the case goes way up as defense counsel needs to hire experts to test the DNA and challenge the validity of the police lab’s testing of the twenty year old substance.

While the law allows evidence to be used at sentencing that may not be admissible at trial, the use of DNA to show prior criminal activity where there was no trial or adversarial testing of the evidence may also violate due process. DNA evidence is very incriminating. Yet we know it is not 100% accurate and before its use to aggravate a sentence it should be subject to a jury using a beyond a reasonable doubt standard.