Pennsylvania Act 2002-109 — JUDICIAL CODE (42 PA.C.S.) - AMEND POSTCONVICTION DNA TESTING

Act text

JUDICIAL CODE (42 PA.C.S.) - AMEND POSTCONVICTION DNA TESTING
                 Act of Jul. 10, 2002, P.L. 745, No. 109              Cl. 42
                             Session of 2002
                               No. 2002-109

     SB 589

                                  AN ACT

     Amending Title 42 (Judiciary and Judicial Procedure) of the
        Pennsylvania Consolidated Statutes, providing for
        postconviction DNA testing.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Title 42 of the Pennsylvania Consolidated
     Statutes is amended by adding a section to read:
      § 9543.1.  Postconviction DNA testing.
        (a)  Motion.--
            (1)  An individual convicted of a criminal offense in a
        court of this Commonwealth and serving a term of imprisonment
        or awaiting execution because of a sentence of death may
        apply by making a written motion to the sentencing court for
        the performance of forensic DNA testing on specific evidence
        that is related to the investigation or prosecution that
        resulted in the judgment of conviction.
            (2)  The evidence may have been discovered either prior
        to or after the applicant's conviction. The evidence shall be
        available for testing as of the date of the motion. If the
        evidence was discovered prior to the applicant's conviction,
        the evidence shall not have been subject to the DNA testing
        requested because the technology for testing was not in
        existence at the time of the trial or the applicant's counsel
        did not seek testing at the time of the trial in a case where
        a verdict was rendered on or before January 1, 1995, or the
        applicant's counsel sought funds from the court to pay for
        the testing because his client was indigent and the court
        refused the request despite the client's indigency.
        (b)  Notice to the Commonwealth.--
            (1)  Upon receipt of a motion under subsection (a), the
        court shall notify the Commonwealth and shall afford the
        Commonwealth an opportunity to respond to the motion.
            (2)  Upon receipt of a motion under subsection (a) or
        notice of the motion, as applicable, the Commonwealth and the
        court shall take the steps reasonably necessary to ensure
        that any remaining biological material in the possession of
        the Commonwealth or the court is preserved pending the
        completion of the proceedings under this section.
        (c)  Requirements.--In any motion under subsection (a), under
     penalty of perjury, the applicant shall:
            (1)  (i)  specify the evidence to be tested;
                (ii)  state that the applicant consents to provide
            samples of bodily fluid for use in the DNA testing; and
                (iii)  acknowledge that the applicant understands
            that, if the motion is granted, any data obtained from
            any DNA samples or test results may be entered into law
            enforcement databases, may be used in the investigation
            of other crimes and may be used as evidence against the
            applicant in other cases.
            (2)  (i)  assert the applicant's actual innocence of the
            offense for which the applicant was convicted; and
                (ii)  in a capital case:
                    (A)  assert the applicant's actual innocence of
                the charged or uncharged conduct constituting an
                aggravating circumstance under section 9711(d)
                (relating to sentencing procedure for murder of the
                first degree) if the applicant's exoneration of the
                conduct would result in vacating a sentence of death;
                or
                    (B)  assert that the outcome of the DNA testing
                would establish a mitigating circumstance under
                section 9711(e)(7) if that mitigating circumstance
                was presented to the sentencing judge or jury and
                facts as to that issue were in dispute at the
                sentencing hearing.
            (3)  present a prima facie case demonstrating that the:
                (i)  identity of or the participation in the crime by
            the perpetrator was at issue in the proceedings that
            resulted in the applicant's conviction and sentencing;
            and
                (ii)  DNA testing of the specific evidence, assuming
            exculpatory results, would establish:
                    (A)  the applicant's actual innocence of the
                offense for which the applicant was convicted;
                    (B)  in a capital case, the applicant's actual
                innocence of the charged or uncharged conduct
                constituting an aggravating circumstance under
                section 9711(d) if the applicant's exoneration of the
                conduct would result in vacating a sentence of death;
                or
                    (C)  in a capital case, a mitigating circumstance
                under section 9711(e)(7) under the circumstances set
                forth in subsection (c)(1)(iv).
        (d)  Order.--
            (1)  Except as provided in paragraph (2), the court shall
        order the testing requested in a motion under subsection (a)
        under reasonable conditions designed to preserve the
        integrity of the evidence and the testing process upon a
        determination, after review of the record of the applicant's
        trial, that the:
                (i)  requirements of subsection (c) have been met;
                (ii)  evidence to be tested has been subject to a
            chain of custody sufficient to establish that it has not
            been altered in any material respect; and
                (iii)  motion is made in a timely manner and for the
            purpose of demonstrating the applicant's actual innocence
            and not to delay the execution of sentence or
            administration of justice.
            (2)  The court shall not order the testing requested in a
        motion under subsection (a) if, after review of the record of
        the applicant's trial, the court determines that there is no
        reasonable possibility that the testing would produce
        exculpatory evidence that:
                (i)  would establish the applicant's actual innocence
            of the offense for which the applicant was convicted;
                (ii)  in a capital case, would establish the
            applicant's actual innocence of the charged or uncharged
            conduct constituting an aggravating circumstance under
            section 9711(d) if the applicant's exoneration of the
            conduct would result in vacating a sentence of death; or
                (iii)  in a capital case, would establish a
            mitigating circumstance under section 9711(e)(7) under
            the circumstances set forth in subsection (c)(1)(iv).
        (e)  Testing procedures.--
            (1)  Any DNA testing ordered under this section shall be
        conducted by:
                (i)  a laboratory mutually selected by the
            Commonwealth and the applicant;
                (ii)  if the Commonwealth and the applicant are
            unable to agree on a laboratory, a laboratory selected by
            the court that ordered the testing; or
                (iii)  if the applicant is indigent, the testing
            shall be conducted by the Pennsylvania State Police or,
            at the Pennsylvania State Police's sole discretion, by a
            laboratory designated by the Pennsylvania State Police.
            (2)  The costs of any testing ordered under this section
        shall be paid:
                (i)  by the applicant; or
                (ii)  in the case of an applicant who is indigent, by
            the Commonwealth of Pennsylvania.
            (3)  Testing conducted by the Pennsylvania State Police
        shall be carried out in accordance with the protocols and
        procedures established by the Pennsylvania State Police.
        (f)  Posttesting procedures.--
            (1)  After the DNA testing conducted under this section
        has been completed, the applicant may, pursuant to section
        9545(b)(2) (relating to jurisdiction and proceedings), during
        the 60-day period beginning on the date on which the
        applicant is notified of the test results, petition to the
        court for postconviction relief pursuant to section
        9543(a)(2)(vi) (relating to eligibility for relief).
            (2)  Upon receipt of a petition filed under paragraph
        (1), the court shall consider the petition along with any
        answer filed by the Commonwealth and shall conduct a hearing
        thereon.
            (3)  In any hearing on a petition for postconviction
        relief filed under paragraph (1), the court shall determine
        whether the exculpatory evidence resulting from the DNA
        testing conducted under this section would have changed the
        outcome of the trial as required by section 9543(a)(2)(vi).
        (g)  Effect of motion.--The filing of a motion for forensic
     DNA testing pursuant to subsection (a) shall have the following
     effect:
            (1)  The filing of the motion shall constitute the
        applicant's consent to provide samples of bodily fluid for
        use in the DNA testing.
            (2)  The data from any DNA samples or test results
        obtained as a result of the motion may be entered into law
        enforcement databases, may be used in the investigation of
        other crimes and may be used as evidence against the
        applicant in other cases.
        (h)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Applicant."  The individual who files a motion under
     subsection (a).
        "DNA."  Deoxyribonucleic acid.
        Section 2.  This act shall take effect in 60 days.

     APPROVED--The 10th day of July, A. D. 2002.

     MARK S. SCHWEIKER