1.
The prosecution is under a duty to preserve evidence which may
foreseeable be favorable to the accused. Gallagher v. District Court, etc.,
656 P. 2d 1287 (Colo. 1983), People v. Gomez 596 P.2d 1192, cert. denied
455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed. 2d 655; Garcia v. District Court,
589 P.2d 924 (1979).
2.
Failure to preserve material evidence for defense use is violative of
defendant's due process rights under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and the Colorado
Constitution, Art. II; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963)
3.
There exists a reasonable possibility that evidence may be submitted for
genetic testing, and where such testing is conducted by the prosecution,
such testing will be improper or incorrect. Garcia v. District Court, supra.
Specifically, issues of evidence contamination are always present when
PCR/DNA is utilized. Moreover, the CBI laboratory where the proposed
testing is to take place is relatively new and the reliability of their testing
methods, procedures, etc., may be at issue.
4.
The independent testing requested by the defense is material because the
results would tend to either prove, or disprove, a material matter at issue.
People v. Holloway, 649 P.2d 318 (Colo. 1982).