HOUSE BILL No. 5089

 

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.