You asked for a summary of the state law that allows a criminal case to be reopened because of DNA evidence. You also asked whether a person can collect from the state if he was wrongly convicted. Finally, you asked if other states have a special procedure or system for compensating such people.

State law requires that biological evidence acquired during a criminal investigation be preserved when a person is convicted of a crime and sentenced to prison or the court orders it for good cause. The evidence must be preserved for the convicted person's incarceration term.

The law permits anyone convicted of a crime and sentenced to prison to file a petition with the sentencing court requesting DNA testing of evidence that is in the possession or control of the government. The petitioner must state under penalty of perjury that the testing is related to the investigation or prosecution that led to his conviction and that the evidence sought to be tested contains biological evidence.

After notifying the prosecutor and holding a hearing, the court must allow the testing if it finds that:

1. a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results (evidence raising doubt about the defendant's guilt) had been obtained through DNA testing;

2. the evidence still exists and can be tested;

3. the evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was not resolved by previous testing; and

4. the petition was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.

If the test results support the petitioner, he may go to court seeking an order for a new trial on the basis of newly discovered evidence.

Connecticut does not have a law that expressly addresses the compensation of people who have been wrongly convicted. Such people must rely on tort and civil rights theories when pursuing compensation either through the claims commissioner or in court. Typical tort theories that might be used, depending on the circumstances, include negligence, willful or malicious misconduct, intentional misconduct, and malicious prosecution.

The federal government has a compensation law that explicitly deals with this issue. Under federal law, any person pursuing such a claim must allege and prove that (1) his conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted; (2) in a new trial or rehearing he was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction; or (3) he has been pardoned upon the stated ground of innocence and unjust conviction. The amount of damages awarded may not exceed $ 100,000 for each 12-month period of incarceration for anyone who was unjustly sentenced to death and $ 50,000 for each 12-month period of incarceration for others.

According to Professor Adele Bernhard, an expert on compensation laws, at least 22 states have enacted laws establishing a separate system for compensating wrongfully convicted people. Typically, these laws apply to felony convictions and require the claimant to actually be innocent. They also typically require the complainant to have received a pardon or a reversal of the sentence and be free of any pending related criminal charges, and to establish by clear and convincing evidence that he had been wrongly convicted and had not pleaded guilty. Most of the laws establish limits on what a claimant can recover.

State law permits any person convicted of a crime and sentenced to jail to file a petition with the sentencing court requesting DNA testing of evidence that is in the possession or control of the Division of Criminal Justice, a law enforcement agency or laboratory, or the Superior Court (CGS § 54-102jj to 102pp). The petitioner must state under penalty of perjury that the testing is related to the investigation or prosecution that led to his conviction and that the evidence sought to be tested contains biological evidence.

The court must notify the prosecutor and hold a hearing. The court must allow the testing if it finds that:

1. a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results (evidence raising doubt about the defendant's guilt) had been obtained through DNA testing;

2. the evidence still exists and can be tested;

3. the evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was not resolved by previous testing; and

4. the petition was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.

Additionally, the court may order testing if it finds criteria 2, 3, and 4 above, and that a reasonable probability exists that the testing will produce DNA results which would have altered the verdict or reduced the petitioner's sentence.

Prisoners seeking DNA testing have the right to be represented by counsel and to have a court-appointed lawyer if they cannot afford one. It allows the court, in the interest of justice, to order either the prisoner or the state to pay for the test. But judges cannot deny a petition because of a prisoner's inability to pay (CGS § 54-102kk(d) & (e)).

The state and local police departments, their agents, and anyone to whom they have transferred biological evidence acquired during the course of a criminal investigation must preserve the evidence when (1) a person is convicted of a capital felony, (2) a person is tried and convicted of any other crime, or (3) the court orders it upon a finding of good cause. They must keep the evidence for the person's incarceration term (CGS § 54-102 jj(b)).

But these entities may apply to the court in which the offender's case was prosecuted for permission to destroy the evidence. The court must grant the application, after notifying all defendants charged in connection with the prosecution and holding a hearing, if it finds either (1) that the Connecticut Supreme Court has decided the defendant's appeal and the defendant does not seek further preservation of the evidence or (2) good cause(CGS § 54-102 jj(d)).

The law requires the chief court administrator to establish a wrongful conviction advisory commission comprised of: (1) the chief state's attorney, the chief public defender, and the victim advocate, or their designees; (2) one representative each from the Connecticut Police Chiefs and Connecticut Bar Associations; and (3) representatives from one or more Connecticut law schools and colleges with criminal justice and forensic science programs (CGS § 54-102pp(a)).

The law authorizes the commission to investigate and determine the cause of wrongful convictions. Investigations must include:

1. an examination of the nature and circumstances of the crime;

2. the background, character, and history of the defendant; and

3. the manner in which the investigation, evidence collection, prosecution, defense, and trial of the case was conducted.

The commission has access to all police, court, and prosecutor's records pertaining to the case, but may not disclose them further.

safety commissioner, police chief of any local department involved in the investigation of the case, and other interested persons the commission deems appropriate (CGS § 54-102pp(c)).

By law, the Superior Court may grant a new trial based on the discovery of new evidence (CGS § 52-270). The judges of the Superior Court may, in addition, provide by rule for the granting of new trials in cases where the parties or their counsel have not adequately protected their rights during the original trial.

To use this statute, attorneys representing the person claiming to be wrongfully convicted must file a civil lawsuit naming the state's attorney's office as defendant and in its suit ask for a new trial. The burden of proof is on the convicted person and the standard of proof is a preponderance of evidence (more likely than not).

Connecticut does not have a law that explicitly addresses the compensation of people who have been wrongly convicted. But under current law, it is possible for people who were wrongly convicted to recover damages in a lawsuit depending on the circumstances. In order to recover, the person would have to prove that his conviction was based on the negligence or other misconduct of one or more people involved in the criminal justice system. Thus, for example, a person who was convicted based on an honest mistaken identification by an eye-witness would not be able to recover damages absent some wrongdoing by a government official.

Various legal theories of recovery are available depending on the precise facts. For example, a person might allege that his constitutional rights were violated or that he was the victim of negligence, intentional tort, or malicious prosecution (see Ham v. Greene, 248 Conn. 508 (1999)).

Even if a person can prove negligence or other wrongdoing, he may not be able to recover damages because of the absolute or partial immunity that shields prosecutors, police, judges, and others involved in the criminal justice system.

One of the claims in a wrongful conviction case is almost always alleged violations of one or more constitutional rights that resulted in the wrongful conviction. Claimants ground these claims on a federal civil rights statute-42 USCA § 1983.

Section 1983 states in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

In order to establish liability under § 1983, the complainant must prove that he has been deprived of a federal statutory or constitutional right by someone acting under state law (Parratt v. Taylor, 451 US 527, 535 (1981)).

Lawsuits filed under § 1983 have several advantages. For example, they may be filed in either federal or state court and provide for the awarding of attorney fees and punitive damages.

But there are limitations to claims brought under this law. First, while claimants may sue municipalities directly for damages under § 1983 claimants may not use it to directly sue the state government or state employees in their official capacity. The 11th Amendment to the U. S. Constitution bars federal lawsuits against states, their agencies, and their officers acting in their official capacities. Although a state can waive its immunity under the 11th Amendment and Congress can override it, in either case, it must do so explicitly and unambiguously by statute, which is not the case for wrongful convictions (Monell v. Department of Social Services, 436 US 658 (1978)).

In order to receive damages under § 1983, a plaintiff must sue state employees and officials personally. In other words, claimants must allege facts that the named individuals acted in their individual capacities.

Individuals involved in the criminal justice system are protected from § 1983 liability by either an absolute or qualified immunity. Those who have an absolute immunity have complete protection against damages lawsuits and thus may not be ordered to pay damages.

Prosecutors are entitled to absolute immunity from a § 1983 lawsuit for conduct intimately associated with the judicial phase of the criminal process (Imbler v. Pachtman, 424 US 409 (1976); Hill v. New York, 45 F3d 653 (2d Cir. 1995)). The immunity applies to decisions made and actions taken initiating a prosecution and presenting the state's case. The immunity is not limited to duties prosecutors perform in the courtroom (Dory v. Ryan, 25 F3d 81 (2d Cir. 1994)). For example, prosecutors who allegedly engaged in certain misconduct, including the falsification of evidence and the coercion of perjured testimony from a number of witnesses, were absolutely immune from liability under § 1983 (Lee v. Williams, 617 F2d 320 (2d Cir. 1980)). Absolute immunity is not available when a prosecutor undertakes conduct that is beyond the scope of his litigation-related duties (Smith v. Gribetz, S. D. N. Y. , 958 F. Supp. (1997)).

Judges are also protected by absolute immunity for the work that they do in their official capacity (Pierson v. Ray, 386 U. S. 547, 554 (1967)). Testifying witnesses are protected as well unless the prosecution is without merit and the complaint is made with malice (White v. Frank, 855 F. 2d 956 (2d Cir. 1988)).

Police officers, however, have only “qualified immunity,” which protects them from civil actions filed under § 1983 involving the performance of their discretionary functions. The United States Supreme Court has held that the qualified immunity defense protects government officials performing discretionary functions from liability for civil damages insofar as their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known (Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action assessed in light of the legal rules that were clearly established at the time it was taken (Anderson v. Creighton, 483 U. S. 635, 639 (1987)). In other words, this immunity applies only if it was objectively reasonable for the officers to have believed, even incorrectly, that their behavior was lawful.

Municipalities are liable for damages caused by negligent acts or omissions of the municipality or any of its employees, officers, or agents acting within the scope of their employment or official duties; negligent performance of functions from which they derive profit or pecuniary benefit; or actions that create or participate in creation of a nuisance (CGS § 52-557n). But, a municipality is not liable for (1) damages caused by acts or omissions that constitute criminal conduct, fraud, actual malice, or willful misconduct, or (2) acts or omissions that require the exercise of judgment or discretion as an official function of the authority granted by law.

Employees performing these duties are generally immune from liability unless their actions are wanton, willful, or malicious or they acted negligently when they could have foreseen imminent injury to a specific person. Conversely, they are given much less latitude in performing ministerial duties, which are acts in which the employee must follow specific procedures and make no judgments. Employees may be held liable if they perform such ministerial duties negligently.

Wanton, Willful, and Malicious Misconduct. Connecticut courts have long held that municipal employees are immune from liability for their official acts or omissions as long as they are done “in good faith, in the exercise of an honest judgment, and not in abuse of discretion, or maliciously or wantonly. Where the discretion has been exercised erroneously but in good faith through an error of judgment, the public official should not be required to pay damages for his acts” (Wadsworth v. Middletown, 94 Conn. 435).

The courts have generally equated wanton acts with acts done recklessly or with callous disregard. These are acts that indicate a reckless disregard of the rights or safety of others or of the consequences

of the action. If these elements are present, it is not necessary to prove that an official actually intended to harm someone (West Haven v. Hartford Ins. Co. , 221 Conn. 149).

A willful and malicious injury is one inflicted intentionally without just cause or excuse. Both the act and the resulting injury must be intentional. The intentional injury aspect may be satisfied if the resultant harm was the direct and natural consequence of the intended act (Markey v. Santangelo, 195 Conn. 76).

Willful misconduct is conduct that shows willful disregard of someone's interest, such as deliberate violations of procedure or of expected standards of behavior. It includes deliberate disobedience or the intentional violation of a known rule (Todd v. Administrator of Unemployment, 5 Conn. App. 309).

Negligence. Negligence is a breach of duty. The Wadsworth rule (noted above) makes no mention of negligence as a cause for losing immunity. In fact, it could be argued that using words such as “malicious and wanton” implies that negligent conduct is excluded. But public employees are liable for their negligent acts in two situations: (1) when the employee is acting in a ministerial capacity and (2) when he could have foreseen that his act would subject a specific person to imminent harm.

Ministerial Acts. A ministerial act is one performed by an employee in “a given state of facts,” in a prescribed manner, without considering or using his own judgment or discretion on the propriety of the act being done. A ministerial act often follows the employee's determination of the “given state of facts. ” Making that determination itself is a discretionary act. But once the determination is made, the act that follows is ministerial (Pluhowsky v. New Haven, 151 Conn. 337).

For example, in Wright v. Brown, the court held that a dog warden's finding that a dog had bitten someone outside of its owner's premises was a discretionary determination of facts. Having made that finding, keeping the dog in quarantine for 14 days was a ministerial act. Releasing the dog before the mandatory end of quarantine was a negligent act for which she was liable (167 Conn. 464).

Duty Due to a Specific Person. Negligence in carrying out discretionary duties due to the public will not subject a public employee to liability. But Connecticut courts have noted situations where a public employee should recognize that a failure to act would likely subject an identifiable person to imminent harm. In these situations, the courts have held that the employee could be liable.

Recognizing these situations is not always easy. In 1979, the Connecticut Supreme Court held that the estate of a person killed during a riot could bring a Groton policeman to trial because he failed to act to disperse the rioters (Sestito v. Groton, 178 Conn. 520). Three years later, the court held that a Stonington policeman could not be brought to trial for failing to detain a probably drunken driver who later caused a death in a traffic accident (Shore v. Stonington, 187 Conn 147). Justice Peters failed to see the distinction between the two sets of circumstances and dissented in the latter case.

Under CGS § 7-465, a municipality must pay on behalf of its employees any sums they become obligated to pay because of liability imposed by the court for acts within the scope of their employment. The law covers police officers. Governmental immunity is not a defense to actions brought under this section. The indemnification applies to damages for infringement of someone's civil rights or personal property damage cased by negligence. The municipality does not have to indemnify someone for willful or wanton acts or for libel or slander. An injured person must notify the municipality of his intent to bring an action under this section within six months of the event and begin the suit within two years.

Another statute protects municipal employees and exposes municipalities to potential liability. Under this law, municipalities must “protect and save harmless” employees from financial loss and expense, including legal fees, from any lawsuit alleging: infringement of civil rights; malicious, wanton, or willful misconduct; or actions that exceed one's authority (CGS § 7-101a). The employee must reimburse the municipality if the court finds that he acted maliciously, wantonly, or willfully, or exceeded his authority. Municipalities can insure against this liability, and an injured person must notify the municipality of his intent to bring an action under this section within six months of the event and begin the suit within two years.

False allegations that are the subject of prosecution may subject the accuser to a civil action for damages. If the action lacks probable cause, the other person will receive double damages; if the action is also malicious and brought with the intent to vex and trouble, the other person will receive treble damages (CGS § 52-568); McGann v. Allen 105 Conn. 177 (1926)). A person lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted. Malice is acting with an improper purpose, which is a purpose other than to secure the proper adjudication of the claim (DeLaurentis v. City of New Haven, 220 Conn. 225 (1991)).

Malicious prosecution involves a charge in a criminal trial that was without probable cause on which the accused is acquitted or discharged. The person must have initiated the proceeding by directing, requesting, or pressuring the prosecutor and this activity is the determining factor in the decision to commence the prosecution. Malice is implied by the lack of probable cause. A prosecutor is absolutely privileged for public policy reasons.

Under the common law sovereign immunity doctrine, the state cannot be sued for negligence without its consent. In response to this doctrine, the state has created a claims commissioner and a structure to process negligence and other claims against the state. Thus, most negligence claims would have to be presented to the claims commissioner.

But the law authorizes people to go directly to court in several situations (see below). If the negligence occurred within the context of one of these categories, the injured person could bypass the claims commissioner and file a negligence lawsuit directly in court.

By statute, state employees are not liable for damage or injury that is caused within the scope of their employment or by the discharge of their duties and is not wanton, reckless, or malicious. Thus state employees and officials are not personally liable for acts of negligence (CGS § 4-165). Claims against state employees for negligence must be presented as a claim against the state (1) to the claims commissioner or (2) as a lawsuit against the state if it is a type of case the legislature permits to be brought directly to court.

The legislature allows injured people to go directly to court to sue the state in the following circumstances without going to the claims commissioner.

CGS § 19a-24 authorizes claims in excess of $ 1,500 against the commissioners of public health and mental retardation and their staffs to be brought as a lawsuit in Superior Court. The attorney general must defend and damages are paid by the state. This law also authorizes lawsuits against certain other state entities such as the Council on Mental Retardation. Claims of $ 1,500 or less must be brought to the claims commissioner.

CGS § 4-197 authorizes those who are aggrieved by a violation of the law protecting the privacy of personal data about state employees to sue for damages.

CGS § 13a-144 authorizes those injured by a defective road or bridge to sue the commissioner of transportation for damages (the defect must be the sole proximate cause).

CGS § 17A-550 allows a person injured by a violation of the patient's bill of rights for mentally ill people to sue the state or its commissioners for damages (Mahoney v. Lesnick, 2123 Conn. 548 (1990)).

CGS § 52-556 allows anyone injured because of the negligence of any state official or employee operating a state owned and insured motor vehicle to sue the state for damages.

Federal law gives the United States Court of Federal Claims jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned (25 USCA § 1495).

Any person pursuing such a claim must allege and prove (1) his conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, (2) on new trial or rehearing he was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or (3) he has been pardoned upon the stated ground of innocence and unjust conviction (25 USCA § 2513(a)).

He must also prove that he did not (1) commit any of the acts charged or his acts or omissions connected with such charge did not constitute an offense against the United States, or any state, territory or the District of Columbia and (2) by misconduct or neglect, cause or bring about his own prosecution.

The law specifies that no pardon or certified copy of a pardon may be considered by the United States Court of Federal Claims unless it contains recitals that the pardon was granted after the applicant had exhausted all recourse to the courts and that the time for any court to exercise its jurisdiction had expired (25 USCA § 2513(c)).

The amount of damages awarded may not exceed $ 100,000 for each 12-month period of incarceration for any plaintiff who was unjustly sentenced to death and $ 50,000 for each 12-month period of incarceration (25 USCA § 2513).

Adele Bernhard, Associate Professor of Law at Pace University Law School, is an expert regarding laws designed to compensate people who were wrongly convicted. She recently identified 22 states that have enacted such laws. Bernhard prepared the following table, which summarizes the major features of these laws. The table specifies the state, statutory citation, the conditions that must be satisfied before compensation may be paid, the standard of proof, the person or entity that decides on compensation, the time limits for filing a claim, the maximum amount that may be awarded, the enactment date, and the extent to which the claimant's actions contributed to his conviction.

Adele Bernhard¹

The following table summarizes the statutes on indemnification for unjust conviction and imprisonment that Adele Bernhard discusses in her article When Justice Fails, 6 U Chi L Sch Roundtable 73. (Last updated October 5, 2005. )

¹ Associate Professor of Law, Pace University School of Law, B. A. and J. D. New York University