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Nebraska Supreme Court Clarifies Applicable Standard for Mandatory Testing Under DNA Testing Act, Reverses District Court for Applying Wrong Standard

by Chad Marks

The Supreme Court of Nebraska reversed a district court’s order denying prisoner James Myers’ request for DNA testing pursuant to the DNA Testing Act, Neb. Rev. Stat. §§ 29-4116 to 29-4125, related to evidence dating back to 1995.

Myers was charged with first-degree murder, use of a deadly weapon in the commission of a felony, and possession of a deadly weapon by a felon in connection with a 1995 shooting death.

Myers was eventually convicted of the charges. Those convictions were affirmed on appeal in 1999.

In 2016, Myers sought to have 26 items of evidence tested pursuant to the DNA Testing Act that may contain biological material. The district court denied Myers’ motion seeking DNA testing, relying primarily on the Nebraska Supreme Court’s opinion in State v. Buckman, 267 Neb. 505, (2004). Specifically, the district court reasoned that DNA testing was not warranted under § 29-4120(5)(c) because the test results would not exonerate or exculpate Myers in light of the evidence presented at trial.  

Myers appealed the district court’s decision contending: (1) the court erred in refusing to order DNA testing and (2) the court made findings of fact and conclusions of law without actual DNA results.

The Nebraska Supreme Court stated that the district court erroneously applied principles governing relief that might be available after testing when it should have limited its consideration to whether it was required to order testing in the first place. That is, the lower court erroneously applied the Buckman standard for determining whether DNA testing that’s already been ordered and results received exonerate or exculpate the defendant. The Court explained that this standard and determination takes place only after testing has been ordered and is more rigorous than the standard for determining whether DNA testing must be ordered in the first place.

The Buckman standard for whether DNA testing must be ordered is comprised of the following factors: (1) person in custody files motion requesting DNA testing of biological material, (2) forensic DNA testing is available for any biological evidence related to the investigation or prosecution leading to the conviction, (3) the evidence is in the actual or constructive possession of the State or its agent, and (4) the evidence either was not previously tested or can now be retested with more accurate forensic techniques. The likelihood of exoneration or exculpation as a result of the testing is not the governing criterion at the initial determination stage. The Buckman Court itself characterized the request for testing standard as “relatively undemanding.”  

It then explained that if the foregoing criteria are met together with the other requirements in § 29-4120(5), the district court “must” order testing. The Court clarified that although it used permissive “may order testing” language in Buckman, it has subsequently made it clear that courts are “required” to order testing if the standard is met, i.e., it’s not within the discretion of the district court to order testing or not.

The Court concluded that the district court applied the wrong standard in determining whether to order the requested DNA testing. However, it explained that it is unable to determine whether the district court abused its discretion in denying Myers’ motion, which is the governing standard upon appeal. Because the district court confused the applicable standards and failed to make clear that its denial was based exclusively on § 29-4120(5), the Court stated that it is unable to determine whether the lower court abused its discretion. 

As a result, the Court concluded “we must remand the cause to the district court for a determination under that section [§ 29-4120(5)], based upon the existing record.” Accordingly, the Court reversed the order of the district court and remanded the case for the lower court to determine whether Myers met the requirements to have DNA testing done. See: State v. Myers, 919 N.W.2d 893 (Neb. 2018). 

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