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Posted February 25, 2010
Post-Conviction DNA Motions
February 2010
Each state has its own set of procedural rules for post-conviction relief. These rules set the grounds upon which a new trial is available and the threshold that must be met in order to merit a new trial. Traditionally in most states, the rules of criminal procedure require new evidence to be brought before the court within six months of the conviction.
In recent years, the potential for DNA to exonerate, as well as convict offenders, has led to specific statutes in a growing number of states to allow for post-conviction DNA testing. Under certain circumstances, such DNA tests might provide important evidence relevant to the case, even after the convicted person has exhausted all of his/her appeals. The motions allowed and the processes being created under these laws allow judges broader authority to order or admit DNA evidence in such cases.
To date, 47 states have post-conviction DNA access laws; Alaska, Massachusetts and Oklahoma are excluded. Many statutes have been enacted since about 2000 because the interest and opportunity for post-conviction review has expanded with DNA technology in criminal justice systems.
Other, related actions in states address preservation of biological evidence; standards and procedures for forensic labs, and one to broadly address innocence issues.
Post-conviction DNA laws include:
Alabama
Public Law 2009-768
Any person imprisoned for a capital offense may apply for post-conviction DNA testing, provided that no DNA testing was performed at the time of trial. Testing will be approved only if the results could show factual innocence. The reviewing court may also deny such testing if it believes the original outcome would not have been affected by the presence of the test results. Identity must have been at issue at the initial trial. Individuals have one year to file a petition from whichever is later: the law’s passage or their conviction.
Arizona
Ariz. Rev. Stat. 13-4240
At any time, a person who was convicted of and sentenced for a felony offense and who meets the requirements of this section may request the forensic deoxyribonucleic acid testing of any evidence that is in the possession or control of the court or the state, that is related to the investigation or prosecution that resulted in the judgment of conviction, and that may contain biological evidence. Reasonable probability of exoneration required.
Arkansas
Ark. Code Ann. §§ 16-112-201 through16-112-207
A person convicted of a crime may make a motion for forensic testing including DNA analysis. Requires that the specific evidence to be tested was not previously subjected to testing and the person making the motion under this section did not.
California
Cal. Penal Code 1405
A person convicted of a crime may make a motion for the performance of fingerprinting, forensic deoxyribonucleic acid (DNA) testing, or other tests which may become available through advances in technology to demonstrate the person's actual innocence. The proposed testing must be reasonable in scope, utilize scientifically sound methods, and be consistent with accepted forensic practices.
Colorado
Colo. Rev. Stat. ann. §§18-1-411 through §§18-1-417
An incarcerated person may apply to the district court in the district where the conviction was secured for DNA testing concerning the conviction and sentence the person is currently serving.
Connecticut
Conn. Gen. Stat 54-102-kk
Any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court. The petitioner shall state under penalties of perjury that the requested testing is related to the investigation or prosecution that resulted in the petitioner's conviction and that the evidence sought to be tested contains biological evidence.
After notice to the prosecutorial official and a hearing, the court shall order DNA testing if it finds that: A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; the evidence is still in existence and is capable of being subjected to DNA testing. etc.
Delaware
Del. Code Ann. 11 § 4504
Defendants convicted of crimes in Delaware may apply for DNA testing using newly developed technologies.
Florida
F.S.A. § 925.11, Fla. R. Crim. P. Rule §§ 3.600, 3. 853
A person who has been tried and found guilty of committing a felony and has been sentenced by a court established by the laws of this state may petition that court to order the examination of physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced that may contain DNA and that would exonerate that person or mitigate the sentence that person received.
Georgia
Ga. Code Ann. 5-5-41
The state statute allows any person convicted of a "serious violent felony" to petition for post-conviction DNA testing at any time with the court that entered the judgment of conviction.
Hawaii
2005 Hi. ALS 112 (Part 11)
A person who was convicted of and sentenced for a crime, or acquitted of a crime on the ground of physical or mental disease, disorder, or defect excluding responsibility, may file a motion, at any time, for DNA analysis of any evidence that is in the custody or control of a police department, prosecuting attorney, laboratory, or court.
Idaho
Idaho Code §§19-4901,02
Any person who has been convicted of and sentenced to a crime and who claims to be innocent may apply for post-conviction DNA testing with the trial court that entered the judgment of conviction within one year of the conviction date.
Illinois
725 Ill. Comp. Stat. Ann. 5/116-3
A defendant may make a motion before the trial court that entered the judgment of conviction in his or her case for the performance of fingerprint, integrated ballistic identification system, or forensic DNA testing, including comparison analysis of genetic marker groupings of the evidence collected by criminal justice agencies pursuant to the alleged offense.
Indiana
Ind. Code Ann. §§35-38-7-1 through 19
Persons convicted of and sentenced for murder of a class A, B, or C felony may apply at any time for post-conviction DNA testing with the court that determined the sentence.
Iowa
I.C.A. 81.10 (and amended by 2005 Ia. Legis. Serv. Ch. 158 (H.F. 619) (WEST) (2005))
A defendant who has been convicted of a felony and who has not been required to submit a DNA sample for DNA profiling can make a motion for the post-conviction DNA testing to the court where he/she was convicted.
Kansas
Kan. Stat. Ann. 21-2512
Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material.
Kentucky
Ky. Rev. Stat. Ann §§ 422.285, 287
A person convicted and sentenced to death for a capital offense is permitted to petition the court for post-conviction DNA testing at any time.
Louisiana
L.S.A-C.Cr.P. Art. 926.1
Prior to August 31, 2014, a person convicted of a felony may file an application under the provisions of this Article for post-conviction relief requesting DNA testing of an unknown sample secured in relation to the offense for which he was convicted. On or after August 31, 2014, a petitioner may request DNA testing under the rules for filing an application for post-conviction relief as provided in Article 930.4 or 930.8 of this Code.
Maine
Me. Rev. Stat. Ann. §§15 - 2136 through 2138
A person who has been convicted of and sentenced for a crime under Maine state law that carries the potential punishment of imprisonment of at least one year and for which the person is in actual execution of either a sentence of imprisonment, including parole, or a sentencing alternative may file a petition for DNA testing.
Maryland
Md. Code Ann., Crim. Proc. 8-201
A person convicted of murder, manslaughter, or rape and sexual offense may be eligible for post-conviction DNA testing.
Michigan
Mich. Comp. Laws Ann. 770.16
A defendant convicted of a felony at trial before January 8, 2001 who is serving a prison sentence for the felony conviction may petition the circuit court to order DNA testing of biological material identified during the investigation leading to his or her conviction, and for a new trial based on the results of that testing. The petition shall be filed not later than January 1, 2012. A defendant convicted of a felony at trial on or after January 8, 2001 who establishes that all of the following apply may petition the circuit court to order DNA testing of biological material identified during the investigation leading to his or her conviction, and for a new trial based on the results of that testing.
Minnesota
Minn. Stat. Ann. §§ 590.01 through 590.06
Any person convicted of a crime who claims innocence can file for post-conviction DNA testing within two years of conviction.
Mississippi
Senate Bill 2709 code 99-39-5
Any person sentenced by a court may apply for post-conviction DNA testing, including those presently incarcerated, civilly committed, on parole or probation, or subject to sex offender registration. Testing may be granted if results could demonstrate by reasonable probability that the petitioner would not have been convicted, or would have received a lesser sentence, if the results of such testing had been available at the time of the original prosecution. Persons who pled guilty, nolo contendere, confessed or admitted to a crime may apply for testing. The state shall bear the costs of testing for indigent petitioners and may appoint them counsel.
Missouri
Mo. Ann. Stat. §§547.035, 650.056
Under the state statute, any prisoner who claims innocence may apply for post-conviction DNA testing with the sentencing court at any time.
Montana
Mont. Code Ann. §§46-21-110, 53-1-214
At any time, any convicted felon who is serving their sentence may petition the court that entered the judgment of conviction for DNA testing.
Nebraska
Neb. Rev. Stat. §§ 29-2101, 29-4119 through 4125
Any prisoner can apply for DNA testing with the court that entered the guilty judgment at any time after conviction.
Nevada
AB 179
Any person imprisoned for an A or B felony (i.e. any felony punishable by more than one year of incarceration) may petition the court for DNA testing. Testing may be granted if results could demonstrate by reasonable possibility that the petitioner would not have been prosecuted or convicted if testing had been performed at the time of the original trial.
New Hampshire
RSA 651-D:1 through D:3
A person in custody pursuant to the judgment of the court may, at any time after conviction or adjudication as a delinquent, petition the court for forensic DNA testing of any biological material. The petition shall be made under penalty of perjury.
New Jersey
N.J. Stat. Ann 2A:84A-32a
Any person who was convicted of a crime and is currently serving a term of imprisonment may make a motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing.
New Mexico
N.M. Stat. ann 31-1A-2
Any convicted felon who claims that DNA evidence will establish his/her innocence may petition the district court where they were convicted for post-conviction DNA testing.
New York
N.Y. Crim Pro. 440
Any defendant may apply for post-conviction DNA testing at any time after the entry of a judgment in the case.
North Carolina
Session Law 2009-203
Any defendant may petition the trial court that entered the judgment of conviction for post-conviction DNA testing.
North Dakota
ND ST 29-32.1-15
A person convicted of a crime may make a motion for the performance of forensic DNA testing to demonstrate the person's actual innocence if the testing is to be performed on evidence secured in relation to the trial which resulted in the conviction, among other requirements.
Ohio
Ohio Rev. Code Ann. 2953.71 through .83
An inmate may request DNA testing if he was sentenced to a prison term and has at least a year left on his sentence, pled guilty or no contest to a felony offense and sentenced to a prison term or sentence of death for that felony.
Oregon
138.759 Oregon Laws 2005
Post-conviction DNA testing is available for any person convicted of aggravated murder, murder, a sex crime, or any prisoner convicted of aggravated murder or a person felony.
Pennsylvania
Pa. Stat. Ann. 42 9543.1
An individual convicted of a criminal offense in a court of this Commonwealth and serving a term of imprisonment or awaiting execution because of a sentence of death may apply by making a written motion to the sentencing court for the performance of forensic DNA testing on specific evidence that is related to the investigation or prosecution that resulted in the judgment of conviction.
Rhode Island
R.I. Gen Laws §§ 10-9.1-11, 12
During the term of the defendant's incarceration resulting from his or her conviction after trial, the Rhode Island state police and each and every municipal police department in the state of Rhode Island, their agents, and any person to whom biological evidence has been transferred shall be obligated to preserve all biological evidence that comes into its possession during the course of a criminal investigation.
South Carolina
SC ST § 17-28-10 et. al.
A person who has pled not guilty to, been convicted of, and is currently incarcerated for an offense listed in §17-28-30, may apply for post-conviction DNA testing. A petitioner who pled guilty or nolo contendere to such an offense may apply for testing no later than 7 years from the date of sentencing. Actual innocence must be asserted in the petition. The state shall bear the costs of testing for indigent petitioners and may appoint them counsel. Petitioner and the state may also consent to and conduct post-conviction DNA testing by mutual agreement.
South Dakota
HB 1166
Any imprisoned person convicted of a felony offense may apply for post-conviction DNA testing, after exhausting other state and federal appeals. Testing will be approved only if results could establish the petitioner’s actual innocence, and prosecutors must take reasonable actions to preserve evidence after a petitioner files for DNA testing. The court may not appoint counsel for an indigent petitioner under the Act, but may refer requests for DNA testing to independent organizations.
Tennessee
Tenn. Code Ann. §§ 40-30-301 through 40-30-313
Any prisoner convicted of a crime may apply for post-conviction DNA testing at any time.
Texas
Tex. Crim. Proc. Ann Art. 64.01 through 64.05
A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.
Utah
Utah Code Ann. 78-35-a- 301 through 304
A person convicted of a felony offense may at any time file a petition for post-conviction DNA testing in the trial court that entered the judgment of conviction against him if the person asserts his actual innocence under oath and the petition alleges a number of requirements.
Vermont
Vermont Statutes 5561 through 5577
A person convicted of a qualifying crime may at any time file a petition requesting forensic DNA testing of any evidence which may contain biological evidence that was obtained during the investigation or prosecution of the crime.
Virginia
Va. Code Ann 19.2-327.1
Any person convicted of a felony may, by motion to the circuit court that entered the original conviction, apply for a new scientific investigation of any human biological evidence related to the case that resulted in the felony conviction.
Washington
RCW 10.73.170
Any convicted felon who is still serving time may submit a request for post-conviction DNA testing to the court that entered the judgment of conviction.
West Virginia
W. Va. Code Ann 15-2B-14
A person convicted of a felony currently serving a term of imprisonment may make a written motion before the trial court that entered the judgment of conviction for performance (DNA) testing.
Wisconsin
Wis. Stat. Ann. §§974.02, .06, .07
At any time, any person convicted of a crime, or found not guilty by reason of a mental disease or defect, may apply for post-conviction DNA testing through the convicting court.
Wyoming
W.S. 7-12-302
A person convicted of a felony offense may, preliminary to the filing of a motion for a new trial, file a motion for post-conviction DNA testing in the district court that entered the judgment of conviction against him if the movant asserts under oath and the motion includes a good faith, particularized factual basis.
For more information contact NCSL’s Criminal Justice Program in Denver, Colo., telephone (303) 364-7700 or email cj-info@ncsl.org.
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