February 24, 2005, Introduced by Reps. Schuitmaker, Gaffney, Stakoe, Condino, Bieda and Lipsey and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending section 16 (MCL 770.16), as added by 2000 PA 402.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 16. (1) Notwithstanding the limitations of section 2 of
this
chapter, a defendant convicted of a felony at trial before the
effective
date of the amendatory act that added this section
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,
2006 2011.
(2) A petition under this section shall be filed in the
circuit court for the county in which the defendant was sentenced
and shall be assigned to the sentencing judge or his or her
successor. The petition shall be served on the prosecuting attorney
of the county in which the defendant was sentenced.
(3) The court shall order DNA testing if the defendant does
all of the following:
(a) Presents prima facie proof that the evidence sought to be
tested is material to the issue of the convicted person's identity
as the perpetrator of, or accomplice to, the crime that resulted in
the conviction.
(b) Establishes all of the following by clear and convincing
evidence:
(i) A sample of identified biological material described in
subsection (1) is available for DNA testing.
(ii) The identified biological material described in subsection
(1) was not previously subjected to DNA testing or, if previously
tested, will be subject to DNA testing technology that was not
available when the defendant was convicted.
(iii) The identity of the defendant as the perpetrator of the
crime was at issue during his or her trial.
(4) The court shall state its findings of fact on the record
or shall make written findings of fact supporting its decision to
grant or deny a petition brought under this section.
(5) If the court grants a petition for DNA testing under this
section, the identified biological material and a biological sample
obtained from the defendant shall be subjected to DNA testing by a
laboratory approved by the court. If the court determines that the
applicant is indigent, the cost of DNA testing ordered under this
section shall be borne by the state. The results of the DNA testing
shall be provided to the court and to the defendant and the
prosecuting attorney. Upon motion by either party, the court may
order that copies of the testing protocols, laboratory procedures,
laboratory notes, and other relevant records compiled by the
testing laboratory be provided to the court and to all parties.
(6) If the results of the DNA testing are inconclusive or show
that the defendant is the source of the identified biological
material, the court shall deny the motion for new trial. If the DNA
test results show that the defendant is the source of the
identified biological material, the defendant's DNA profile shall
be provided to the Michigan state police for inclusion under the
DNA identification profiling system act, 1990 PA 250, MCL 28.171 to
28.176.
(7) If the results of the DNA testing show that the defendant
is not the source of the identified biological material, the court
shall appoint counsel pursuant to MCR 6.505(a) and hold a hearing
to determine by clear and convincing evidence all of the following:
(a) That only the perpetrator of the crime or crimes for which
the defendant was convicted could be the source of the identified
biological material.
(b) That the identified biological material was collected,
handled, and preserved by procedures that allow the court to find
that the identified biological material is not contaminated or is
not so degraded that the DNA profile of the tested sample of the
identified biological material cannot be determined to be identical
to the DNA profile of the sample initially collected during the
investigation described in subsection (1).
(c) That the defendant's purported exclusion as the source of
the identified biological material, balanced against the other
evidence in the case, is sufficient to justify the grant of a new
trial.
(8) Upon motion of the prosecutor, the court shall order
retesting of the identified biological material and shall stay the
defendant's motion for new trial pending the results of the DNA
retesting.
(9) The court shall state its findings of fact on the record
or make written findings of fact supporting its decision to grant
or deny the defendant a new trial under this section.
Notwithstanding the
provisions of section 3 of this chapter, an
aggrieved party may appeal the court's decision to grant or deny
the petition for DNA testing and for new trial by application for
leave granted by the court of appeals.
(10) If the name of the victim of the felony conviction
described in subsection (1) is known, the prosecuting attorney
shall give written notice of a petition under this section to the
victim. The notice shall be by first-class mail to the victim's
last known address. Upon the victim's request, the prosecuting
attorney shall give the victim notice of the time and place of any
hearing on the petition and shall inform the victim of the court's
grant or denial of a new trial to the defendant.
(11) Effective January 1, 2001, the investigating law
enforcement agency shall preserve any biological material
identified during the investigation of a crime or crimes for which
any person may file a petition for DNA testing under this section.
The identified biological material shall be preserved for the
period of time that any person is incarcerated in connection with
that case.