concurring.
Because deoxyribonucleic acid (DNA) testing would not conclusively prove that Mohamed El-Tabech is innocent of the murder of Lynn El-Tabech, I concur in the result of the instant case. Unlike the majority, however, I am of the opinion that in a rare and appropriate case, a claim of “actual innocence” may be presented by way of a motion seeking postconviction relief under Neb. Rev. Stat. §§ 29-3001 through 29-3004 (Reissue 1995).
Section 29-3001 provides:
A prisoner in custody under sentence and claiming a right to be released on the ground that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States, may file a verified motion at any time in the court which imposed such sentence, stating the grounds relied upon, and asking the court to vacate or set aside the sentence.
... If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States, the court shall vacate and set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial as may appear appropriate.
As with any other claim made as part of a motion for postconviction relief, however, a defendant asserting an “actual innocence” claim bears the burden of showing that she or he is entitled to relief. Before an “actual innocence” claim may properly result in postconviction relief, it must be determined which, if any, of a prisoner’s constitutional rights have been denied so as to render the judgment void or voidable.
The U.S. Supreme Court has noted that “the injustice that results from the conviction of an innocent person has long been *528at the core of our criminal justice system.” Schlup v. Delo, 513 U.S. 298, 325, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). Prior to Schlup, Justice Blackmun, joined by Justices Stevens and Souter, explained that it “may violate the Eighth Amendment to imprison someone who is actually innocent,” but declined to address the question because the Court “[was] not asked to decide . . . whether petitioner’s continued imprisonment would violate the Constitution if he actually is innocent.” Herrera v. Collins, 506 U.S. 390, 432 n.2, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) (Blackmun, J., dissenting). Justice Blackmun noted the distinct possibility that the continued incarceration of an innocent person violates the Eighth Amendment and has suggested that for that reason, such a person must have recourse to the judicial system. Id. I am also of the opinion that the continued imprisonment of someone who is actually innocent may well violate the Eighth Amendment and that due process mandates that such a person have recourse to the judicial system. The right to fundamental fairness does not end at the conclusion of a criminal trial.
The continued imprisonment of an actually innocent person would violate the fundamental principles upon which our criminal justice system is based. To avoid such a grievous outcome, courts should solemnly consider reopening a case if a “truly persuasive” showing of actual innocence lies close at hand. See Herrera v. Collins, 506 U.S. at 417. Accord Jenner v. Dooley, 590 N.W.2d 463 (S.D. 1999).
The Due Process Clause of both the federal and the state Constitutions requires more than a defendant’s being convicted as a result of a trial free of constitutional error, as the very absence of a procedure through which “actual innocence” claims can be addressed implicates an individual’s constitutional right to due process. See, e.g., People v. Washington, 171 Ill. 2d 475, 665 N.E.2d 1330, 216 Ill. Dec. 773 (1996) (holding that actual innocence claims are cognizable under due process provision in state constitution); Sewell v. State, 592 N.E.2d 705 (Ind. App. 1992) (noting that fundamental fairness may require postconviction DNA testing in appropriate case); Com. v. Brison, 421 Pa. Super. 442, 453, 618 A.2d 420, 425 (1992) (relying on “principles of justice” to vacate conviction and order *529postconviction DNA testing). In the rare case of actual innocence, it is the state’s continued incarceration of such an innocent person, without affording an opportunity to present newly discovered compelling evidence, that constitutes “such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States.” § 29-3001.
Even with that established, I want to be clear that not every convict who cries innocence should be able to reopen a case to analyze old evidence based on the newest scientific techniques. Our system of justice would be given little respect if its judgments were never final. Only in extraordinary circumstances should a court allow postconviction scientific testing.
Several courts have formulated guidelines for when postconviction scientific analysis may be authorized, and after careful consideration, I would postulate the following conditions for Nebraska courts: First, a showing must be made that if the matter were presently tried, the defendant would be entitled to the testing and the results would be admissible, i.e., scientifically reliable. Second, because convicted defendants may not obtain reconsideration of their cases whenever some new technology promises to reveal another angle on the evidence against them, it must be shown that a favorable result using the latest scientific procedures would most likely produce an acquittal in a new trial. Jenner v. Dooley, supra (citing Dumond v. Lockhart, 911 F.2d 104 (8th Cir. 1990)). With biological evidence, courts have generally found postconviction testing most suitable when (1) identity of a single perpetrator is at issue; (2) evidence against the defendant is so weak as to suggest real doubt of guilt; (3) the scientific evidence, if any, used to obtain the conviction has been impugned; and (4) the nature of the biological evidence makes testing results on the issue of identity virtually dispositive. Jenner v. Dooley, supra.
With the foregoing in mind, and applying these guidelines, I conclude that postconviction scientific analysis is unsuitable in the instant case. I discern no likelihood that a favorable DNA test result of the physical evidence obtained at the scene of the crime would produce an acquittal were El-Tabech granted a new trial. The evidence against him at the original trial was quite per*530suasive. Even proof that someone else’s DNA might appear on some unspecified physical item at the crime scene does not exclude El-Tabech as the perpetrator of the crime. At most, DNA testing in the present case would create only another circumstance on which El-Tabech could argue reasonable doubt. Simply put, scientific testing would not prove conclusive on the question of innocence, especially in light of all the other evidence against El-Tabech. The evidence in the original trial did not suggest any real doubt of the guilt of El-Tabech. See State v. El-Tabech, 225 Neb. 395, 405 N.W.2d 585 (1987).
In sum, postconviction DNA testing is not appropriate in the instant case because it cannot be shown that any type of favorable result using the latest DNA testing procedures would most likely produce an acquittal of El-Tabech in a new trial. Therefore, based on the above reasoning, I would affirm the order of the district court denying El-Tabech’s request for DNA testing and postconviction relief.