HB-5089, As Passed Senate, December 19, 2008

SENATE 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 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,

~~2009~~ 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:

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

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

result in conclusive results.

(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) A petition under this section shall allege that biological

material was collected and identified during the investigation of

the defendant's case. If the defendant, 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 defendant 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) ~~(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.

(5) ~~(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.

(6) ~~(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.

(7) ~~(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.

(8) ~~(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).

the identified biological material, balanced against the other

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

trial.

(9) ~~(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.

(10) ~~(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 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.

(11) ~~(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.

(12) ~~(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