Connecticut courts have recognized that the Connecticut and federal due process provisions have similar meanings. State v. Linares, 32 Conn. App. 656, 661 n.9 (1993), aff’d in part, rev’d in part on other grounds, 232 Conn. 345 (1995). So, under the Due Process Clause of the United States Constitution, the State must provide the petitioner with any exculpatory evidence in its possession which is material to guilt or innocence. See U.S. const. amends. V and XIV; see also Brady v. Maryland , 373 U.S. 83 (1963). Also, this right includes the opportunity to introduce evidence and to have judicial findings based upon that evidence. Id.

The Discovery Rule

In addition, the discovery rule in Brady evolves from the fundamental right to a fair trial provided by the Fifth and Fourteenth Amendments to the United States Constitution. Brady, 373 U.S. at 86; see United States v. Agurs , 427 U.S. 97, 107 (1976); see also Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987); in addition, see United States v. Bagley, 473 U.S. 667, 675 (1985). The concept of a fair trial imposes a constitutional duty on the prosecution to disclose evidence material to a defendant’s guilt or innocence. In addition, see Bagley, 473 U.S. at 674, 675; also see Brady, 373 U.S. at 87. So, the purpose of requiring disclosure is, “not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.” Bagley, 473 U.S. at 765.

The quest for truth does not terminate with a defendant’s conviction. As evidenced by the Connecticut Supreme Court’s orders in Hammond, justice gets served by permitting one convicted of a crime to prove factual innocence, even if that undermines the finality of the conviction. The State remains bound by the constitutional rules of simple fairness that Brady and its progeny have established.

Courts in Other Jurisdictions

In addition, courts in other jurisdictions have concluded that the State is required, pursuant to Brady, to preserve and produce evidence for post-conviction examination. In Matter of Dabbs v. Vergari, 149 Misc.2d 844 (N.Y.Sup.Ct. Westchester 1990), the court examined a defendant’s right to post-conviction DNA testing in light of Brady and held that a defendant has a constitutional right, retained even after conviction, to get informed of exculpatory information in the State’s possession. Id. at 848.

In addition, the due process analysis articulated in Dabbs has gotten adopted by courts in other jurisdictions which have ordered post-conviction DNA testing. See Sewell v. State, 592 N.E.2d 705, 708 (Ind.Ct.App. 1992)(fundamental fairness requires post-conviction discovery of rape kit and laboratory records notwithstanding a lack of strict compliance with normal statutory discovery procedures); Also see State v. Thomas, 586 A.2d 250, 253 (N.J.Super.Ct.App.Div. 1991)(Constitution guarantees post-conviction discovery of rape kit in the prosecutor’s possession which may yield material susceptible to DNA testing).

In addition, Commonwealth v. Brison, 618 A.2d 420 (Pa.Super. 1992)(principles of justice require post-conviction discovery of samples taken from rape victim for purposes of DNA testing; testing ordered, defendant excluded, conviction vacated); Mebane v. State, 902 P.2d 494 (Ka.App. 1995)(fundamental fairness requires defendant be able to obtain DNA testing); Deberry v. State, 457 A.2d 744 (Del. 1983)(State required by Brady to preserve and produce defendant’s clothing for post-conviction examination). Also, these courts put aside procedural objections to post-conviction DNA testing, recognizing that it is unfair to deny an incarcerated person this powerful tool for establishing innocence.

Conviction of Innocent

Our system fails every time an innocent person is convicted no matter how meticulously the procedural requirements governing criminal trials get followed. That failure is even more tragic when an innocent person is sentenced to a prison term…There is a possibility, if not a probability, that DNA testing now can put to rest the question of defendant’s guilt…We would rather permit the testing than sit by while a possibly innocent man…languishes in prison…[W]e will not elevate form so highly over substance that fundamental justice is sacrificed.

State v. Thomas, 245 N.J.Super. at 435-36; see Sewell v. State, 592 N.E.2d at 708.

So, the federal courts, ruling on federal habeas petitions, have granted access to evidence and DNA testing where there is a likelihood that the test results could exonerate the defendant. See Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997); Also see Toney v. Gammon, 79 F.2d 693 (8th Cir. 1996).

Exculpatory Evidence

Finally, it should be emphasized that the United States Supreme Court’s rulings with respect to a duty to preserve potentially exculpatory evidence, a variant of the Brady obligation, also support granting Petitioner a right of access to the evidence. The leading case, Arizona v. Youngblood, 488 U.S. 51 (1988), concerned the destruction of rectal swabs containing semen which Youngblood claimed could prove his innocence through serological testing. Without proof that the swabs were destroyed in bad faith, the Youngblood court held that there was no constitutional violation. Nonetheless, there was never any dispute that Youngblood had a constitutional right to conduct serological testing on the swabs if they had been preserved because the swabs were potentially exculpatory evidence. 488 U.S. at 58.

Accordingly, due process requires that the Court permit Petitioner to go forward with mtDNA testing on the hairs.