DNA Testing Excerpt from Criminal Law in Oregon

The 2022 revision of Criminal Law in Oregon is scheduled to release in December. It will be available for preorder soon, in both print and digital formats. This revision contains up-to-date case law and statutory changes that have happened since the 2013 revision was released. We are excited to be offering this new edition in a durable, convenient, and accessible perfect bound format.

One of the new areas addressed in this revision deals with postconviction motions for DNA testing. This post is an excerpt from that chapter, written by authors Ryan Kahn, Daniel Toulson, and Jason Weber. It is available here before it is completely final or posted to the BarBooks online library.


ORS 138.688 to 138.700 provide a means for people convicted of certain crimes to seek DNA (or “deoxyribonucleic acid”) testing of evidence related to their convictions. Those provisions are not part of the PCHA, and thus, contain their own independent procedure.

Caveat: Because the DNA-testing statutes underwent significant amendments in 2019, the court of appeals decisions addressing motions for DNA testing may have limited application to motions filed under the post-2019 provisions. Attorneys should carefully review the existing court of appeals’ decisions to determine their continued applicability.

Commencement of DNA Proceedings

ORS 138.690(1) provides that a person who has been convicted of aggravated murder or a felony in which DNA evidence “could exist and is related to the investigation or prosecution that resulted in the judgment of conviction” can initiate a DNA-testing proceeding by filing in the circuit court of conviction a petition requesting the commencement of a DNA-testing proceeding. In the petition, the person may also request the appointment of counsel “for the purpose of determining whether to file a motion under ORS 138.692 for the performance of DNA testing on specific evidence[.]” ORS 138.690(1). See also ORS 138.694 (setting out procedure for appointment of counsel).

After commencing the proceeding, the person may file a motion asking the court to order that the person receive records relating to evidence in the case and the results of prior forensic testing that has occurred, ORS 138.690(2)(a), and discovery materials that they could not obtain from their prior defense counsel, ORS 138.690(2)(b).

Motion for DNA Testing

Requirements of Motion; Answer

After initiating the DNA-testing proceedings under ORS 138.690, the person may file a motion for DNA testing. As required by ORS 138.692(1), the motion must be supported by (1) a sworn declaration by the person seeking testing that “the person is innocent of the offense for which the person was convicted;” and (2) a statement that includes the following additional information:

  • the identification of evidence to be tested, with “as much specificity as is reasonably practicable”—the evidence “must have been secured in connection with the prosecution” that resulted in the conviction, ORS 138.692(1)(b)(A);
  • the results of any previous DNA test of the evidence, ORS 138.692(1)(b)(B);
  • that the “identity of the individual who committed the crime or conduct was at issue in the underlying prosecution,” or that no crime occurred, ORS 138.692(1)(b)(C); and
  • an explanation of how, in light of all the evidence, “there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution:” (a) the person “would not have been prosecuted or convicted of the offense;” or (b) there “would have been a more favorable outcome to the underlying prosecution,” ORS 138.692(1)(b)(D)(i)–(ii).

With the filing of the motion, the person seeking DNA testing must serve the district attorney with a “copy of any prior sworn testimony by the person concerning the underlying prosecution,” and in a prior postconviction action challenging the conviction, or a document affirming that no prior sworn statements exist. ORS 138.692(2)(a)–(b). Upon being served with those documents, the district attorney must answer the motion and may refute the basis for it. ORS 138.692(4).

Court’s Order Regarding Motion

ORS 138.692(5) provides that the court may allow the testimony of witnesses if such testimony will assist the court in ruling on the motion for DNA testing; but the court may not allow the testimony of the victim without the victim’s consent.

Under ORS 138.692(6), the court is required to order DNA testing if it finds the following:

  • “the evidence to be tested has been subject to a chain of custody sufficient to establish” that it has not been altered;
  • “[t]he motion is made for the purpose of demonstrating the innocence of the person of the offense and not to delay the execution of the sentence or administration of justice”;
  • “[t]he identity of the individual who committed the crime or conduct was at issue in the underlying prosecution,” or “[i]f the person alleges that no crime occurred, the testing could not have been obtained during the criminal proceedings” with the exercise of due diligence; and
  • “[i]n light of all of the evidence, there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution, the person would not have been prosecuted or convicted of the offense.”

ORS 138.692(6)(a)–(c).

ORS 138.692(7) gives the court the discretion to order DNA testing if makes the first three of the foregoing findings, and in addition, finds that “there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution, there would have been a more favorable outcome to the underlying prosecution.” ORS 138.692(7)(d). The court must make written findings. ORS 138.692(15).

If the court grants the motion, it may impose reasonable conditions “designed to protect the interests of the state in the integrity of the evidence and the testing process.” ORS 138.692(8). In addition, if the person seeking DNA testing has a pending appeal of the underlying conviction, or a pending postconviction case related to that conviction, the court ordering DNA testing must notify those courts, and a pending appeal or postconviction case will be stayed pending the outcome of the DNA-testing proceedings. ORS 138.692(14).

DNA Testing and Results

Unless the parties agree or the court finds compelling circumstances otherwise, the court will order the Department of the State Police to conduct any DNA testing ordered. ORS 138.692(10). The court may order a second test if the court finds that the state police did not “follow appropriate DNA protocols and that failure reasonably affected the accuracy of the DNA test.” ORS 138.692(10).

The laboratory that conducts the DNA test is required to provide to the person seeking testing and to the state access to the test results and to any related written materials, “including reports, underlying data, notes and protocols.” ORS 138.692(13).

If the result of the testing “produces inconclusive evidence or evidence that is unfavorable to the person requesting the testing,” ORS 138.696(1) requires the court to “forward the results to the State Board of Parole and Post-Prison Supervision.” In addition, the State Police is required to compare the evidence to evidence from unsolved crimes in the Combined DNA Index System. ORS 138.696(1)(b).

If the DNA testing produces “exculpatory” evidence, the person who requested testing may file a motion for a new trial based on “newly discovered evidence.” ORS 138.696(2). The person may file that motion, notwithstanding the time limit in ORCP 64 F, “during the 60-day period that begins on the date the person receives the test results.” ORS 138.696(2). The court will hear the motion pursuant to ORCP 64. ORS 138.696(2).

If the court sets aside a conviction based on DNA testing, “the prosecution of any offense that was either dismissed or not charged pursuant to a plea agreement” may be commenced within the later of the statute of limitations provided in ORS 131.125 to 131.155, or “two years after the date the conviction was set aside.” ORS 138.698.

Caveat: ORS 138.700 provides detailed provisions for entry of DNA test results into the national and state DNA Index Systems, if the results from an NDIS-participating laboratory produce an unidentified DNA profile. The statute also contains provisions allowing a court to order a NDIS-participating laboratory to evaluate whether a nonparticipating laboratory is in compliance with federal standards for the purpose of uploading DNA profiles to the Combined DNA Index System (CODIS). Parties litigating DNA testing should review these detailed provisions carefully if the result involves an unidentified DNA profile.


A person seeking DNA testing may appeal to the court of appeals from an order denying or limiting DNA testing, denying appointment of counsel, or denying a motion or new trial. ORS 138.697(1). The court must appoint counsel to the person in the same manner as for criminal defendants under ORS 138.500. ORS 138.697(4).

The state may appeal to the court of appeals from an order allowing DNA testing, or granting a new trial. ORS 138.697(2).