A N
A C T
RELATING TO COURTS
AND CIVIL PROCEDURE - PARTICULAR ACTIONS - POST CONVICTION REMEDY
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Introduced By: Senators McCaffrey, and Donelan |
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Date Introduced: February 07, 2002 |
It is enacted
by the General Assembly as follows:
SECTION 1. Chapter 10-9.1 of the General Laws entitled "Post
Conviction Remedy" is hereby amended by adding thereto the following
sections:
10-9.1-10. Innocence protection - - DNA
testing. --
Definitions.
(1) DNA
Testing - Shall mean forensic deoxyribonucleic acid testing.
(2) Agent
- A firm, person or corporation to whom the Rhode Island State Police or local
municipal police department entrusts or delivers evidence to undergo DNA
testing.
10-9.1-11. Mandatory preservation. --
(a) Mandatory
preservation. During the term of the defendant's incarceration resulting
from his/her conviction after trial, the Rhode Island State Police and each and
every municipal police department in the state of Rhode Island, their agents
and any person to whom biological evidence has been transferred shall be
obligated to preserve all biological evidence that comes into its possession
during the course of a criminal investigation. A police department or agent may
be relieved of the obligation of mandatory preservation by applying to a
justice of the superior court for permission to destroy biological evidence.
Upon receipt of the petition, a justice of the superior court shall hold a
hearing, and after giving notice of all defendants charged in connection with
the prosecution, the justice shall grant the petition upon finding that:
(1) the Rhode Island Supreme court has
decided the defendant's appeal; and
(2) the defendant does not seek further
preservation of the biological evidence.
(b)
Notwithstanding any other provision of law governing postconviction relief, any
person who was convicted of and sentenced for a crime and who is currently
serving an actual term of imprisonment and incarceration pursuant to said
sentence may, at any time, file a petition with the superior court requesting
the forensic DNA testing of any evidence that is in the possession or control
of the prosecution, law enforcement, laboratory, or court. A person filing a
petition under this section must certify under the pains and penalties of
perjury that the requested testing is related to the investigation or
prosecution that resulted in the judgment of conviction and that the evidence
sought to be tested contains biological evidence.
10-9.1-12. Testing. -- (a) Mandatory testing.
After notice to the prosecution and a hearing, a justice of the superior court
shall order testing after finding that:
(1) A
reasonable probability exists that petitioner would not have been prosecuted or
convicted if exculpatory results had been obtained through DNA testing.
(2) The
evidence is still in existence and is capable of being subjected to DNA testing.
(3) The
evidence, or a specific portion of the evidence identified by the petitioner,
was never previously subjected to DNA testing; or that the testing requested by
the petitioner may resolve an issue that was never previously resolved by
previous testing.
(4) The
petition before the Superior Court was filed in order to demonstrate the petitioner's
innocence and not to delay the administration of justice.
(b)
Discretionary Testing. After notice to the prosecution and a hearing, a
justice of the superior court may order testing after finding that:
(1) A
reasonable probability exists that the requested testing will produce DNA
results which would have altered the verdict or reduced the petitioner's
sentence if the results had been available at the prior proceedings leading to
the judgment of conviction.
(2) The
evidence is still in existence and is capable of being subjected to DNA testing.
(3) The
evidence, or a specific portion of the evidence identified by the petitioner
was never previously subjected to DNA testing; or, that the testing requested
by the petitioner may resolve an issue that was never previously resolved by
previous testing.
(4) The
petition before the superior court was filed in order to demonstrate the
petitioner's innocence and not to delay the administration of justice.
(c) Costs.
Unless the justice hearing the motion finds that the defendant has the present
ability to pay the costs associated with DNA testing, the justice shall order
that the state of Rhode Island pay for the costs of any such testing ordered
under this chapter. Unless good cause is shown, all testing ordered under this
section shall be conducted by the Rhode Island department. of health.
SECTION 2. This act shall take effect upon passage.