CRIMINAL LAW, EVIDENCE: Death case; DNA swab, mere possibility of exculpatory evidence: Victor Dewayne Taylor v. Commonwealth of Kentucky (SC 6/25/2009)

Victor Dewayne Taylor v. Commonwealth of Kentucky
2008-SC-000273-MR June 25, 2009
Opinion by Justice Noble. All sitting; all concur.

Taylor, a death row inmate, filed for DNA testing on crime scene evidence pursuant to KRS 422.285. The Commonwealth produced an inventory which erroneously stated that there was a swab taken from one of the victims—later explaining that the swab had been consumed during preparation of two sample slides. The Commonwealth also informed Taylor and the trial court that, contrary to the previously entered preservation of evidence order, it had tested one of the slides prior to Taylor’s request and were able to find no DNA profile. The trial court subsequently dismissed Taylor’s petition without a 5 hearing.

The Supreme Court affirmed, holding that the record showed Taylor had been aware of the nonexistence of the swab prior to his request. Furthermore, the Court held that even if there had been evidence sufficient for a DNA profile, Taylor could only establish a “mere possibility” of exculpatory evidence—not a “reasonable certainty” as required by KRS 422.285. Lastly, the Court held that the Commonwealth’s “technical disobedience” of the preservation of evidence order did not rise to the level of misconduct needed to warrant a new trial.

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