|
Home
Mission
Causes and Remedies
Frequently Asked Questions
Legislation
DNA News
Links
Wrongful Convictions Course
Support Us
| |
SAMPLE MODEL STATUTE FOR OBTAINING POSTCONVICTION DNA TESTING
1. Petition for postconviction DNA (deoxyribonucleic acid) testing.
Notwithstanding any other provision of law governing postconviction relief, a
person convicted of a crime may at any time file a petition requesting the
forensic DNA testing of any evidence that was secured in relation to the
investigation or prosecution that resulted in the judgment of conviction, and
that may contain biological evidence. Persons eligible for testing shall include
any and all of the following:
A. Persons convicted on a plea of not guilty, guilty or nolo contendere;
B. Persons currently incarcerated, serving a sentence of probation, or who have
already been released on parole; and/or
C. Persons who have finished serving their sentences.
2. Proceedings. The petitioner shall be granted full, fair, and prompt
proceedings upon the filing of a motion under this Act. The petitioner shall
serve a copy of such motion upon the attorney for the State. The State shall
file its response to the motion within thirty days of the receipt of service.
The court shall, no sooner than thirty and no later than ninety days after such
motion is filed, hear the motion.
3. Order for Postconviction DNA Testing. Upon the filing of a motion for
postconviction DNA testing, and after the court provides the state with notice
and an opportunity to respond, and holds a hearing on the motion, the court
shall order testing if it finds that:
A. A reasonable probability exists that the petitioner would not have been
convicted, or would have received a lesser sentence, if favorable results had
been obtained through DNA testing at the time of the original prosecution; and
B. One or more of the item(s) of evidence that the petitioner seeks to have
tested is still in existence; and C. The evidence to be tested was secured in
relation to the offense that is the basis of the challenged conviction, and: 1)
was not previously subjected to DNA testing; or 2) although previously subjected
to DNA testing, can be subjected to additional DNA testing that provides a
reasonable likelihood of more probative results; and D. The chain of custody of
the evidence to be tested establishes that the evidence has not been tampered
with, replaced, or altered in any material respect or, if the chain of custody
does not establish the integrity of the evidence, the testing itself has the
potential to establish the integrity of the evidence. For purposes of this Act,
evidence that has been in the custody of law enforcement, other government
officials, or a public or private hospital shall be presumed to satisfy the
chain-of-custody requirement of this subsection, absent specific evidence of
material tampering, replacement, or alteration; and E. The application for
testing is made for the purpose of demonstrating innocence or the
appropriateness of a lesser sentence, and not to unreasonably delay the
execution of sentence or the administration of justice. 4. Counsel. The court
may, at any time, during proceedings under this Act, appoint counsel for an
indigent petitioner. A. If the petitioner has filed pro se, upon a showing that
DNA testing may be material to the petitioner's claim of wrongful conviction,
the court shall appoint counsel for the petitioner. B. The Court, in its
discretion, may refer pro se requests for DNA testing to qualified parties for
further review, including, but not limited to, indigent defense organizations or
clinical legal education programs, without appointing the parties as counsel at
that time. C. If the petitioner has retained private pro bono counsel
(including, but not limited to, counsel from a nonprofit organization that
represents indigent persons), the Court may, in its discretion, award reasonable
attorney's fees and costs at the conclusion of the litigation. 5. Discovery. At
any time after a petition has been filed under this Act, the Court may order the
following: A. The Court may order the State to locate and provide the petitioner
with any documents, notes, logs, or reports relating to items of physical
evidence collected in connection with the case, or otherwise assist the
petitioner in locating items of biological evidence that the State contends have
been lost or destroyed. The Court may further order the State to take reasonable
measures to locate biological evidence that may be in its custody, or to assist
the petitioner in locating evidence that may be in the custody of a public or
private hospital, public or private laboratory, or other facility. B. If
evidence had previously been subjected to DNA testing, the court may order
production of laboratory reports prepared in connection with the DNA testing, as
well as the underlying data, and the laboratory notes. C. If any DNA or other
biological evidence testing was previously conducted by either the prosecution
or defense without knowledge of the other party, such testing shall be revealed
in the motion for testing or response, if any. D. If the court orders DNA
testing in connection with a proceeding brought under this Act, the court shall
order the production of any laboratory reports prepared in connection with the
DNA testing, and may in its discretion order production of the underlying data,
bench notes, or other laboratory notes. E. The results of any postconviction DNA
testing conducted under this Act shall be disclosed to the prosecution, the
petitioner, and the Court. 6. Preservation of evidence. A. Preservation.
Notwithstanding any other provision of law, all appropriate governmental
entities shall retain all items of physical evidence which contain biological
material that is secured in connection with a criminal case for the period of
time that any person remains incarcerated, on probation or parole, civilly
committed, or subject to registration as a sex offender in connection with that
case. This requirement shall apply with or without the filing of a petition for
postconviction DNA testing, as well as during the pendency of proceedings under
this Act. In cases where a petition for postconviction DNA testing has been
filed under this Act, the State shall prepare an inventory of the evidence
related to the case and submit a copy of the inventory to the defense and the
court. If evidence is intentionally destroyed after the filing of a petition
under this Act, the Court may impose appropriate sanctions on the responsible
party or parties. B. Definition. "Biological evidence" means: 1) the contents of
a sexual assault examination kit; and/or 2) any item that contains blood, semen,
hair, saliva, skin tissue, or other identifiable biological material, whether
that material is catalogued separately (i.e,. on a slide, swab, or in a test
tube) or is present on other evidence (including, but not limited to, clothing,
ligatures, bedding or other household material, drinking cups, cigarettes,
etc.). 7. Choice of Laboratory. If the Court orders DNA testing, such testing
shall be conducted by a facility mutually agreed upon by the petitioner and by
the state and approved by the court. If the parties are unable to agree, the
court shall designate the testing facility and provide parties with a reasonable
opportunity to be heard on the issue of choice of laboratory. The court shall
impose reasonable conditions on the testing to protect the parties' interests in
the integrity of the evidence and the testing process. 8. Payment. If DNA
testing under this Act is performed at a state or county crime laboratory, the
State shall bear the costs of such testing. If testing is performed at a private
laboratory, the court may require either the petitioner or the State to pay for
the testing, as the interests of justice require. If the state or county crime
laboratory does not have the ability or resources to conduct the type of DNA
testing to be performed, the State shall bear the costs of testing at a private
laboratory which does have such capabilities. 9. Appeal. The petitioner shall
have the right to appeal a decision denying postconviction DNA testing. 10.
Successive Petitions. A. If the petitioner has filed a prior petition for DNA
testing under this Act or any other provision of law, the petitioner may file,
and the Court shall adjudicate, a successive petition or petitions under this
Act, provided the petitioner asserts new or different grounds for relief,
including, but not limited to, factual, scientific, or legal arguments not
previously presented, or the availability of more advanced DNA technology. B.
The Court may also, in its discretion, adjudicate any successive petition if the
interests of justice so require. 11. Additional Orders. A. The Court may in its
discretion make such other orders as may be appropriate. This includes, but is
not limited to, designating: 1) The type of DNA analysis to be used; 2) The
testing procedures to be followed; 3) The preservation of some portion of the
sample for replicating the testing; 4) Additional DNA testing, if the results of
the initial testing are inconclusive or otherwise merit additional scientific
analysis; and/or 5) The collection and DNA testing of elimination samples from
third parties. B. DNA profile information from biological samples taken from any
person pursuant to a motion for postconviction DNA testing shall be exempt from
any law requiring disclosure of information to the public. 12. Procedure after
testing results are obtained. A. If the results of forensic DNA testing ordered
under this Act are favorable to the petitioner, the Court shall schedule a
hearing to determine the appropriate relief to be granted. Based on the results
of the testing and any evidence or other matter presented at the hearing, the
court shall thereafter enter any order that serves the interests of justice,
including any of the following: 1) An order setting aside or vacating the
petitioner's judgment of conviction, judgment of not guilty by reason of mental
disease or defect, or adjudication of delinquency; 2) An order granting the
petitioner a new trial or fact-finding hearing; 3) An order granting the
petitioner a new sentencing hearing, commitment hearing, or dispositional
hearing; 4) An order discharging the petitioner from custody; 5) An order
specifying the disposition of any evidence that remains after the completion of
the testing; 6) An order granting the petitioner additional discovery on matters
related to DNA test results or the conviction or sentence under attack,
including, but not limited to, documents pertaining to the original criminal
investigation, or the identities of other suspects; and/or 7) An order directing
the State to place any unidentified DNA profile(s) obtained from postconviction
DNA testing into state and/or federal databases. B. If the results of the tests
are not favorable to the petitioner, the court 1) shall dismiss the petition;
and 2) may make any further orders that are appropriate, including any of the
following: a. An order providing that the parole board or a probation department
be notified of the test results. b. An order requesting that the petitioner's
DNA profile be added to the state's convicted felons database. 13. Consent.
Nothing in this Act shall be interpreted to prohibit a convicted person and the
State from consenting to and conducting postconviction DNA testing by agreement
of the parties and without filing a motion for postconviction DNA testing under
this Act. Notwithstanding any other provision of law governing postconviction
relief, if DNA test results are obtained under testing conducted upon consent of
the parties which are favorable to the petitioner, the petitioner may file, and
the Court shall adjudicate, a motion for postconviction relief based on the DNA
test results under section 12 of this Act. This model legislation was prepared
by the directors and staff of the Innocence Project, Inc., a nonprofit legal
clinic and criminal justice reform organization based at the Benjamin N. Cardozo
School of Law in New York, NY. Founded in 1992 by Prof. Barry Scheck and
attorney Peter Neufeld, the Project pioneered the postconviction DNA testing and
litigation and currently represents dozens of prisoners in such litigation
nationwide. This model legislation is based upon the the US Project's extensive
experience litigating postconviction DNA testing claims under both state and
federal laws over the last decade.
|