Post-Conviction DNA Motions

Post-Conviction DNA Motions

November 2003

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. In most states, the rules of criminal procedure require new evidence to be brought before the court within six months of the conviction. This potentially excludes offenders who were convicted before DNA testing was available but for whom such testing may now provide important evidence relevant to their case.

The potential for DNA to exonerate, as well as convict offenders has led to specific state statutes to allow for post-conviction DNA testing under certain circumstances, even after the convicted person has exhausted all of his/her appeals. The motions allowed and the processes being created under these new laws allow judges broader authority to order or admit DNA evidence in such cases. To date, 31 states have laws in place to provide for motions for post-conviction DNA testing.

The Illinois law passed in 1997 is typical of state laws that have followed in recent years since.

(725 ILCS 5/116-3) Sec. 116-3. Motion for fingerprint or forensic testing not available at trial regarding actual innocence.

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 or forensic DNA testing on evidence that was secured in relation to the trial which resulted in his or her conviction, but which was not subject to the testing which is now requested because the technology for the testing was not available at the time of trial. Reasonable notice of the motion shall be served upon the State.
The defendant must present a prima facie case that: (1) identity was the issue in the trial which resulted in his or her conviction; and (2) the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.
The trial court shall allow the testing under reasonable conditions designed to protect the State's interests in the integrity of the evidence and the testing process upon a determination that: (1) the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence; (2) the testing requested employs a scientific method generally accepted within the relevant scientific community. (Source: P.A. 90-141, effective 1-1-98.)

Other laws include:

New York

§440.30 Motion to vacate judgment and set aside sentence procedure.

Allows for the testing of DNA evidence in cases where the evidence was available but not tested.

Minnesota

§ 590.01 Sub d. 1a. Motion for fingerprint or forensic testing not available at trial.

Allows a person convicted of a crime to make a motion for the performance of fingerprint or forensic DNA testing to demonstrate the person's actual innocence if certain conditions are met.

Since the year 2000, many states have taken interest in updating post-conviction procedure to allow for DNA technology, and the following states have passed laws:

Arizona SB 1353 (2000)

A person who was convicted of and sentenced for a felony offense and who meets the requirements may request the forensic DNA 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. Also requires the state, if a DNA test request is made, to preserve and create an inventory of evidence in the case.

California SB 1342 (2000)

Authorizes motion for post-conviction DNA testing upon demonstrated reasonable probability that the technology, had it been available at the time of trial resulting in conviction, would have had an impact on the verdict.

Colorado SB 164 (2003)

Allows an incarcerated person to file a motion for post-conviction DNA testing, where biological evidence in the case is available and not previously tested. Petitioner shall bears all costs of testing and is afforded the right to appeal the denial of the DNA request. States that no law enforcement duty to preserve or liability for failure to preserve such evidence is created as a result of this act. Provides that DNA profiles obtained as a result of post-conviction testing ordered are to be available to state and federal data bases.

Connecticut HB 5903 (2000)

Allows petitions based on DNA evidence that was not discoverable or available at the time of the original trial any time after the discovery or availability of such new evidence.

Delaware Senate Substitute for SB 329 (2000)

Allows overturning convictions if forensic DNA testing not available at the time of trial establishes the innocence of the convicted person. Also extends the statute of limitations on crimes when the prosecution is based upon forensic DNA testing.

Delaware SB 38 (2003)

Extends the data of termination for filing motions for post-conviction DNA testing.

Florida SB 366 (2001)

Allows any person convicted of a crime to petition for DNA testing of evidence collected during the investigation of the crime for which he is sentenced. Costs of testing paid for by petitioner unless deemed indigent. Petitioner has 30 days to appeal if relief is denied.

Georgia S 119 (2003)

Provides for motions for post-conviction DNA testing, where evidence exists that was not previously subjected to DNA testing. Requires victims be notified of a defendant's motion for a new trial. Requires 10-year preservation of criminal cases physical evidence; and in death penalty cases, maintenance of evidence until the sentence is carried out.

Idaho HB 242 (2001)

Allows any person convicted of a criminal offense to motion for post-conviction DNA testing if evidence used at trial and susceptible to testing is available and was subject to a clear chain of custody. Provides deadline for filing. Petitioner must pay for costs unless he qualifies for state assistance.

Indiana SB 81 (2001)

Provides for post-conviction DNA testing and analysis for persons convicted of Class A, B and C felonies

Kentucky HB 4 (2002)

Provides procedure for person convicted of a capital offense and sentenced to death to request DNA testing and analysis of existing forensic evidence not previously subjected to such analysis. Requires petitioner pay for cost of testing; for appointment of counsel for qualifying defendants; and for preservation of evidence in such cases. If results of testing are not favorable to defendant, the court may order that the defendant's DNA sample be added to the state police database, and provide notice to victim families. Expands to additional crimes those offenders currently in custody of or being supervised by the Department of Corrections required to submit a sample for DNA analysis; and prioritizing implementation as funding becomes available. Includes persons convicted unlawful transaction with minor, use of or promoting sexual performance of a minor; burglary I and II; and Class A and Class B felonies involving death or serious injury to victim. Includes some juvenile offenders.

Louisiana SB 511 (2001)

Provides procedure for filing post-conviction relief to allow DNA testing. Establishes 4-year period within which an application may be filed. Provides for proper preservation of biological material that can be subjected to DNA testing. Requires the DNA profile of the petitioner be added to the state DNA data base. Creates DNA Testing Post-Conviction Relief for Indigents fund, to pay for DNA testing under the act.

Louisiana SB 522 (2003)

Extends the period in which a person may file an application for post-conviction DNA testing.

Maine HB 1250 (2001)

Requires prosecutors to reopen cases where sentenced offenders have had a DNA test that indicates innocence.

Maryland SB 694 (2001)

Allows a person convicted of a certain criminal offense to petition for DNA testing of evidence subjected to the chain of custody. Petitioner pays for testing, however, is reimbursed by the state if testing results are favorable to him.

Michigan SB 1395 (2000)

Allows convicted defendants to petition for DNA testing of biological material identified during investigation leading to conviction, and for new trial based on the results of that testing.

Missouri SB 267 (2001)

Allows incarcerated offenders to motion for DNA testing in order to demonstrate innocence.

Nebraska LB 659 (2001)

Allows a convicted person to motion for DNA testing if matter was not previously tested or can be subjected to retesting with more current techniques. Costs of testing paid for by petitioner unless determined indigent by the court. If the court does not grant relief, any party may file a motion for a new trial.

Nevada AB 16 (2003)

Allows persons convicted and sentenced to death to request a genetic maker analysis of evidence in state custody which may contain information relating to the investigation or prosecution that resulted in the judgment. Allows for new trial based on new evidence discovered.

New Mexico SB 337 (2001)

Allows any person convicted of a criminal offense to petition the court to set aside the sentence or grant a new trial if DNA evidence not available at trial will establish innocence. Permits prosecution to use DNA test results for other unrelated cases. Gives petitioners one year to file.

New Mexico SB 184 (2003)

Extends repeal on law allowing petition for post-conviction DNA testing until July 2006.

North Carolina HB 884 (2001)

Allows any defendant to motion for post-conviction DNA testing. Requires indigent defendants to receive counsel and requires the state to pay for testing if the defendant is unable to do so. Requires preservation of evidence susceptible to DNA testing.

Oklahoma SB 1381 (2000)

Creates a system to investigate and refer to prosecution, cases of indigent, presently incarcerated persons for whom post-conviction factual innocence may be demonstrated by scientific evidence. Convicted offenders serving lengthy sentences or under sentence of death are given priority under the system.

Oregon SB 667 (2001)

Allows a convicted person to motion for DNA testing no later than 48 months after the effective date of this act. Provides for petition in circuit court requesting appointment of counsel at state expense to assist the person in determining whether to file a motion. Requires interim review of various technology and evidentiary issues related to the act.

Pennsylvania SB 589 (2002)

Provides that persons sentenced to death may assert innocence in a motion for DNA testing of specific, available evidence for which DNA technology was not available at the time of the conviction, or the defendant's counsel did not seek testing, or the court refused to pay for testing for an indigent client. Upon such motion the court must ensure preservation of the biological materials. Provides that costs of ordered post-conviction testing will be paid by the applicant, if able, and by the Commonwealth for an indigent applicant.

Rhode Island SB 2721 (2002)

Allows imprisoned offender to assert innocence in a petition for forensic DNA testing of any existing evidence, and that such testing be conducted if such evidence was not previously tested and a reasonable probability exists that the applicant would not have been prosecuted or convicted had such testing been available. Requires state to pay cost of testing unless the court finds the defendant have ability to pay. Requires preservation of biological evidence during a defendant's incarceration.

Tennessee HB 2490 (2000)

Permits defendant convicted of first degree murder and sentenced to death to petition court of conviction for fingerprint or forensic DNA analysis on evidence not tested at time of trial because technology not available or results not admissible.

Tennessee SB 796 (2001)

Expands list of offenders eligible for post-conviction DNA testing from those sentenced to death to any offender convicted of and sentenced for any criminal offense.

Texas SB 3 (2001)

Allows a convicted person to motion for DNA testing. Permits test results to be entered in DNA database.

Utah SB 172 (2001)

Allows convicted felons to motion for DNA testing. Consequences of filing petition include waiving felony statute of limitations offenses in any jurisdiction if a match is found from the DNA and the profile may be entered into DNA databanks. Instructs the state to pay for testing for those in prison, indigent and if the result is favorable to the individual. Allows victims to be notified of testing.

Virginia SB 1366 (2001)

Allows convicted felons to motion for DNA testing if the evidence was not available at trial or not previously tested, has not been tampered with and testing is relevant to establish innocence. Prohibits appeals if denied testing.

Washington SHB 2491 (2000)

Provides a procedure to conduct deoxyribonucleic acid testing of evidence for persons sentenced to death or life imprisonment

Washington Substitute SB 5896 (2001)

Expands list of offenders eligible for post-conviction DNA testing from those sentenced to death or life without parole to any incarcerated felon.

Washington HB 1391 (2003)

Allows a convicted felon to appeal a denial of post-conviction DNA testing in the event the court ruled that such testing did not meet acceptable scientific standards or DNA technology was not sufficient at that time.

Offender motions for post-conviction DNA testing depend upon availability of crime scene evidence that may be tested. Examples (not comprehensive list) of laws concerning storage and preservation of the evidence that may be subject to DNA testing:

Arizona SB 1353 (2000)

Requires the prosecution preserve evidence that could be subject to DNA testing for the period of the proceeding. Requires the department of public safety maintain blood samples for at least thirty-five years.

California SB 1342 (2000)

Requires the preservation of evidence that may be subject to testing for the period of the defendant's incarceration.

Illinois HB 4593 (2000)

Requires preservation of physical evidence during the prosecution of certain offenses. Requires the retention of evidence after a trial for a period of time depending upon the offense.

Michigan SB 1395 (2000)

Requires preservation of any biological material for which any person may post-conviction DNA petition.

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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