Attorney's Failure to Independently Examined Murder Weapon for Fingerprints

X was convicted of second degree murder following a jury trial. In an application for post-conviction relief he alleged, among other things, that his defense attorney was ineffective for failure to have the murder weapon, a knife, independently examined for fingerprints after the State's expert found no prints on it. In the post-conviction action, the district court denied a discovery motion by X to compel the State to make the knife and X's fingerprint exemplar available for an independent fingerprint examination. the district court thereafter summarily dismissed X's post-conviction action. On appeal, this Court is required to determine what showing must be made by a post-conviction applicant in order to compel production of evidence by the State where the evidence is sought to substantiate a claim that the criminal defense attorney provided ineffective assistance by failing to have the evidence examined or tested in the criminal proceedings. In our judgment, requiring that an applicant show a probability of different results from re-examination of physical evidence leaves too great a risk that a factually innocent defendant will be precluded from developing exonerating evidence in a post-conviction action for ineffective assistance of counsel. Consequently, we hold that if a post-conviction applicant makes a showing satisfactory to the trial court that the criminal defense attorney's failure to obtain independent examination or testing of physical evidence constituted deficient performance, i.e., did not meet objective standards of competence for a defense attorney in light of all the circumstances, including the seriousness of the criminal charge and the potential value of the physical evidence to exonerate the applicant, then discovery should be authorized in the post-conviction action to permit such scientific examination or testing without requiring that the post-conviction applicant also show, as a prerequisite to discovery, any probability that the independent examination will yield exculpatory evidence. The requirement of a threshold showing of deficient performance will prevent unwarranted and abusive discovery demands of the sort feared by the district court while allowing access to physical evidence in circumstances where the applicant can show that a competent defense attorney would have obtained expert examination of the evidence in the course of the criminal proceedings. ANALYSIS Motion for Release and Re-testing of the Knife and Pipe X contends that it was error for the district court to dismiss his post-conviction action without having allowed him to conduct the discovery and expert analysis necessary for development of an ineffective assistance of counsel claim based upon his defense attorney's omission to obtain an independent fingerprint examination of the knife and pipe. He argues that the inability to examine the evidence, and discover possible exculpatory fingerprints, made it impossible for him to show prejudice resulting from trial counsel's deficient performance. This Court is thus presented with the narrow issue of what showing a post-conviction applicant must make in order to obtain possession of physical evidence for scientific testing or analysis where the underlying claim or potential claim is one of ineffective assistance for defense counsel's failure to have obtained such testing or analysis during the criminal proceedings. X complied with this requirement. His discovery request was specific and narrow, limited to a request for production of the knife, pipe and fingerprint exemplar. X's counsel explained his need for the discovery in order to be able to demonstrate prejudice from the criminal defense attorney's omission to have the items examined. However, neither Aeschliman nor any other decision of the Idaho appellate courts has outlined the type of showing that would justify the allowance of discovery where, as here, the discovery is directed to a claim that a defense attorney's omission to obtain expert analysis of physical evidence constituted a deprivation of effective assistance of counsel. We emphasize that our analysis here does not apply where the underlying claim is not ineffective assistance but some other basis for post-conviction relief such as newly discovered evidence giving cause to doubt the reliability of expert testimony presented at trial, nor does it apply where the discovery request is based upon technological advances, such as DNA analysis, that may make possible more accurate tests or the revelation of new information that could not have been derived at the time of the criminal trial. In X's case, the district court declined to allow the requested discovery in the absence of reasons to distrust the State's expert or a showing that new technology, developed since the criminal trial, might lead to fingerprint findings different from those reached by the State's expert. The district court feared that without requiring such a showing, the discovery request would be a "pure fishing expedition to show that the State didn't do a competent job." X argues that the district court's approach unduly limited his ability to procure evidence to prove the prejudice prong of a claim of ineffective assistance. The district court was rightfully concerned that "fishing expedition" discovery should not be allowed. a post-conviction action is not a vehicle for unrestrained testing or retesting of physical evidence introduced at the criminal trial. On the other hand, there is merit in X's assertion that it is unduly restrictive to require an applicant presenting this type of claim to make a prima facie showing of prejudice from trial counsel's deficient performance as a condition to permitting discovery. Such a burden would place the applicant in a situation of needing to engage in discovery in order to acquire evidence of prejudice, but being required to show the prejudice in order to engage in discovery. Such a "catch-22" could prevent the coming to fruition of a valid post-conviction claim that an attorney's ineffectiveness prevented the acquisition and presentation of exculpatory scientific or technical evidence. Because we have here adopted a standard for discovery in post-conviction actions not previously articulated by the Idaho appellate courts, we will remand this case to the district court for reconsideration of X's discovery request. On remand, both parties should be allowed an opportunity to present further evidence as to whether the decision of X's criminal defense attorney to not obtain an expert examination of the pipe or knife for fingerprints constituted deficient performance. If X shows such deficient performance to the satisfaction of the trial court, then his request for access to the physical evidence for reexamination by an expert should be granted. CONCLUSION With respect to X's claim of ineffective assistance of counsel and the case remanded for reconsideration of X's request for access to, and an independent examination of, the fingerprint evidence. If that discovery request is granted on remand, after the independent examination has been completed X shall be given an opportunity to amend his post-conviction application, should he elect to do so, to further allege a claim that his defense attorney was ineffective for failure to obtain an independent examination of the fingerprint evidence. The dismissal of all other claims of ineffective assistance, which are unrelated to the fingerprint evidence, was not challenged on this appeal and is therefore affirmed. This matter is remanded to the district court for further proceedings consistent with this opinion.