March 30, 2006, Introduced by Reps. Condino, Bieda, Alma Smith, Lipsey, Donigan, Sheltrown, Accavitti, Polidori, Meisner, Hopgood, Vagnozzi, Gleason, Plakas, Tobocman, Gonzales, Kathleen Law, Zelenko, Cushingberry, Adamini, Gillard, Espinoza and Nofs and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending section 16 of chapter X (MCL 770.16), as amended by
2005 PA 4.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER X
Sec. 16. (1) Notwithstanding the limitations of section 2 of
this
chapter, a defendant convicted of a felony at trial before
January
8, 2001 who is serving a prison sentence for the felony
conviction
any of the following
individuals may petition the
circuit court to order DNA testing of biological material
identified
during the an investigation leading to his or her
conviction for a crime, and for a new trial based on the results of
that
testing: . The petition shall be filed not later than
January
1,
2009.
(a) An individual convicted of the crime pursuant to a trial
or plea of guilty or nolo contendere.
(b) An individual incarcerated, serving a sentence of
probation, or released on parole for the crime.
(c) An individual who has completed serving his or her
sentence for the crime.
(2) A petition under this section shall be filed in the
circuit
court for the county in which the defendant individual
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 individual was
sentenced.
(3) An individual who has previously filed a petition under
this section may file a subsequent petition under this section
asserting new or different grounds for relief including, but not
limited to, factual, scientific, or legal arguments not previously
made or the availability of more advanced DNA technology.
(4) Notwithstanding subsection (3), the court may hear a
subsequent petition under this section if the court determines it
is in the interests of justice to do so.
(5) If the individual alleges in his or her petition that
biological material was collected during the investigation leading
to his or her conviction, the prosecuting attorney shall do 1 of
the following within 28 days after the petition is filed or as
otherwise agreed to by the individual and the prosecuting attorney
and ordered by the court:
(a) Produce the identified biological material for testing
under this section.
(b) File a written response and supporting affidavit setting
forth in detail why the biological material is unavailable for
testing. The affidavit shall include all of the following:
(i) Information regarding the specific locations searched,
including police agencies, laboratories, and public and private
hospitals.
(ii) Information regarding the time, place, and manner of the
destruction of the biological material, if applicable.
(iii) A statement of any other facts relevant to the loss or
nonexistence of the evidence.
(iv) Any documents relevant to the loss or nonexistence of the
evidence.
(6) (3)
The court shall order DNA testing if the defendant
does
court determines that all of the following circumstances
exist:
(a) Presents
There is prima facie proof that the evidence
sought
to be tested is material to the issue of the convicted
person's
individual'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:
(b) (i) A sample of identified biological material described
in subsection (1) is available for DNA testing.
(c) (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 was not tested
by currently accepted DNA technology.
(iii) The identity of the defendant as the perpetrator
of the
crime
was at issue during his or her trial.
(7) (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.
(8) (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 individual
or other relevant
source 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 individual 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.
(9) (6)
If the results of the DNA testing are inconclusive
or
show that the defendant individual
is the source of the
identified biological material or the results are consistent with
the state's theory of guilt, the court shall deny the motion for
new
trial. If the DNA test results show that the defendant
individual
is the source of the identified
biological material, the
defendant's
individual'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.
(10) (7)
If the results of the DNA testing show that the
defendant
individual is not the source of the identified
biological material or support the individual's claim of innocence,
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 individual was convicted could be the source of the
identified biological material or that the biological evidence is
consistent with the individual's claim of innocence.
(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 evidence
is consistent with the
individual's claim of innocence, balanced against the other
evidence in the case, and is sufficient to justify the grant of a
new trial.
(11) (8)
Upon If there is a
sufficient biological sample,
upon
motion of the prosecutor
prosecuting attorney or the
individual, the court shall order retesting of the identified
biological
material and shall stay the defendant's individual's
motion for new trial pending the results of the DNA retesting. If
there is not sufficient biological material for additional testing,
the parties shall be notified of that fact before any test is
conducted and shall be provided the opportunity to have an expert
present during any test that is conducted.
(12) (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 individual
a new trial under this
section. Notwithstanding 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.
(13) (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 when an order for testing has been entered. 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 the motion
for new trial hearing or any
subsequent hearing related to the issue of the individual's
release.
(14) (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 an individual 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 the individual is
incarcerated in connection with that case. It is a rebuttable
presumption that biological material that was destroyed or is
otherwise unavailable for use due to a violation of this subsection
would have been favorable to the individual.