Bill Text: MI SB1050 | 2013-2014 | 97th Legislature | Introduced

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Bill Title: Criminal procedure; DNA; filing deadline for petition seeking review of DNA evidence; extend sunset. Amends sec. 16, ch. X of 1927 PA 175 (MCL 770.16).

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2014-09-11 - Referred To Committee On Judiciary [SB1050 Detail]

Download: Michigan-2013-SB1050-Introduced.html

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SENATE BILL No. 1050

 

 

September 11, 2014, Introduced by Senators BIEDA and JONES 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

 

2011 PA 212.

 

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. Notwithstanding the limitations of section 2 of this

 

chapter, 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.

 

     (c) 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, 2016. 2018. The petition 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) 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) 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) 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) If the results of the DNA testing are inconclusive or show

 

that the defendant is the source of the identified biological

 

material, both of the following apply:

 

     (a) The court shall deny the motion for new trial.

 

     (b) The defendant's DNA profile shall be provided to the

 

department of state police for inclusion under the DNA

 

identification profiling system act, 1990 PA 250, MCL 28.171 to

 

28.176.

 

     (8) 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) 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).

 

     (c) That the defendant'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.

 

     (9) 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) 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) 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) The investigating law enforcement agency shall preserve

 

any biological material identified during the investigation of a

 

crime or crimes for which any person 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.