HB-5089, As Passed House, March 20, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 5089

     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 felony, 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 a felony at trial or by a plea

of guilty or nolo contendere before January 8, 2001.

     (b) An individual convicted of a felony at trial on or after

January 8, 2001 who establishes by evidence that is on the record

that both of the following apply:

     (i) DNA testing was not done by the state.

     (ii) He or she requested that DNA testing be done before trial

on identified biological material and the court denied the request.

     (c) An individual convicted of a felony at trial on or after

January 8, 2001 who establishes that all of the following apply:

     (i) That DNA testing was done in the case or under this act.

     (ii) That the results of the testing were inconclusive.

     (iii) That testing with current DNA technology is likely to

result in conclusive results.

     (2) A petition under this section shall be filed not later

than January 1, 2012 in the circuit court for the county in which

the defendant petitioner was sentenced and shall be assigned to the

sentencing judge or his or her successor. The petition shall be

accompanied by a sworn affidavit signed by the petitioner affirming

that he or she is innocent of the crime for which he or she was

convicted. The affidavit shall specify how the proposed testing of

the biological material will establish his or her innocence. The

petition shall be served on the prosecuting attorney of the county

in which the defendant petitioner was sentenced.

     (3) The petition shall allege that biological material was

collected and identified during the investigation of the

petitioner's case. If the petitioner, after diligent investigation,

is unable to discover the location of the identified biological

material or to determine whether the biological material is no

longer available, the petitioner may petition the court for a

hearing to determine whether the identified biological material is

available. If the court determines that identified biological

material was collected during the investigation, the court shall

order appropriate police agencies, hospitals, or the medical

examiner to search for the material and to report the results of

the search to the court.

     (4) Before entering an order for taking a biological sample

from a person other than the petitioner, the court shall conduct a

hearing to determine the necessity of taking that sample. The court

shall take testimony and review evidence as necessary to make the

determination. The rules of evidence shall apply. Before ordering

the sample to be taken, the court must find substantial and

compelling reasons that the biological sample is necessary to the

determination that the petitioner did not commit the crime for

which he or she was convicted. If the victim is required to testify

at the hearing, the courtroom shall be closed and the petitioner

shall not be present in the courtroom. If the court determines that

a biological sample from the victim is necessary, the court shall

request the victim or the victim's family or representative to

appear at an in camera meeting with the court. The victim may

request the presence of the prosecuting attorney. If the

prosecuting attorney appears at the in camera meeting, the

House Bill No. 5089 (H-1) as amended March 20, 2008

petitioner's attorney, but not the petitioner, shall also be

allowed to attend the meeting. The court shall explain to the

victim the necessity for taking a biological sample and shall

answer any questions the victim has regarding the court's order

that the victim provide a sample.

(5) (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 petitioner'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 petitioner was convicted.

(d) (iii) The identity of the defendant petitioner as the

perpetrator of the crime was at issue during his or her [trial

prosecution].

(6) (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.

(7) (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 petitioner or other relevant

source shall be subjected to DNA testing by a laboratory approved

by the court accredited by the American society of crime lab

directors or a laboratory agreed to by the court, the prosecuting

attorney, and the petitioner. 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 petitioner 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.

(8) (6) If the results of the DNA testing are inconclusive or

show that the defendant petitioner 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 petitioner is the

source of the identified biological material, the defendant's

petitioner'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.

(9) (7) If the results of the DNA testing show that the

defendant petitioner is not the source of the identified biological

material or otherwise support the assertions of innocence in the

petitioner's affidavit, 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 the identified biological material was collected,

handled, and preserved according to 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).

(b) (a) That, in cases in which the petitioner asserts that he

or she was not the source of the biological material, only the

perpetrator of the crime or crimes for which the defendant

petitioner was convicted could be the source of the identified

biological material and that the petitioner'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.

     (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, in cases where alleged biological evidence from the

victim or another person is relevant to the petitioner's innocence

as asserted in his or her affidavit, the court shall determine

whether the purported exculpatory evidence, balanced against the

other evidence in the case, is sufficient to justify the grant of a

new trial.

(d) (c) That the defendant's purported exclusion as the source

of the identified biological material evidence is consistent with

the petitioner's claim of innocence, balanced against the other

evidence in the case, and is sufficient to justify the grant of a

new trial.

(10) (8) Upon If there is a sufficient biological sample, upon

motion of the prosecutor prosecuting attorney or the petitioner,

the court shall order retesting of the identified biological

material and shall stay the defendant's petitioner'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.

(11) (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 petitioner 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.

(12) (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 and any subsequent

hearing related to the issue of the petitioner's release.

(13) (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 convicted before January 1, 2001 may file a petition for

DNA testing under this section. Effective July 1, 2008, the

investigating law enforcement agency shall preserve any biological

material identified during the investigation of a crime or crimes

for which any person convicted after January 1, 2001 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 until

January 1, 2012.