August 8, 2007, Introduced by Reps. Condino, Donigan, Vagnozzi, Alma Smith, Scott, Virgil Smith, Warren, Bieda, Wenke and Meadows 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 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 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 felony.
(c) An individual who has completed serving his or her
sentence for the felony.
(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 accompanied by a sworn
affidavit signed by the defendant 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
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) Any documents relevant to the loss or destruction of the
evidence.
(6) Before entering an order for taking a biological sample
from a person other than the defendant, 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 this
determination. The rules of evidence shall apply. The court must
find substantial and compelling reasons that the biological sample
is necessary to the determination that the defendant did not commit
the crime for which he or she was convicted before ordering the
sample. If the victim is required to testify at the hearing, the
courtroom shall be closed and the defendant 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, defense counsel, but not the defendant, 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.
(7) (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.
(d) (iii) The
identity of the defendant as the perpetrator of
the crime was at issue during his or her trial.
(8) (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.
(9) (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 the department of
state police crime laboratory. 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 defendant may request the court to order the identified
biological material and biological sample tested by another
laboratory. The laboratory must be approved by the court and the
defendant shall be responsible for all costs of the testing. 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.
(10) (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.
(11) (7)
If the results of the DNA testing show that the
defendant
individual is not the source of the identified biological
material or otherwise support the assertions of innocence in the
individual'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 individual 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
individual was convicted could be the source of the identified
biological material and that the individual'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 individual'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 individual's claim of innocence, balanced against the other
evidence in the case, and is sufficient to justify the grant of a
new trial.
(12) (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.
(13) (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.
(14) (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.
(15) (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.