HB1733

Report Title:

Crimes; Retention of Evidence; Post-Conviction Relief

Description:

Requires retention of evidence that can be used for DNA analysis. Establishes procedure for post-conviction requests for analysis of DNA evidence. Requires notice to victim of proceedings and outcome. Requires notice to probation and parole authorities of outcome adverse to defendant.

HOUSE OF REPRESENTATIVES	H.B. NO.	1733
TWENTY-THIRD LEGISLATURE, 2005
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO BIOLOGICAL EVIDENCE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§706-A Retention of biological evidence. (1) All evidence in the custody or control of a police department, prosecuting attorney, laboratory, or court that is related to the investigation or prosecution of a case in which there has been a judgment of conviction and that may contain biological evidence that could be used for DNA analysis shall be retained at least until the later occurring of either:

(a) The exhaustion of all appeals of the case to which the evidence is related; or

(b) The completion of any sentence, including any term of probation or parole, imposed on the defendant in the case to which the evidence relates.

(2) The attorney general shall establish procedures and protocols, which shall be uniform throughout the State, for the collection and preservation of evidence retained pursuant to this section.

(3) For purposes of this section, "DNA" means deoxyribonucleic acid."

SECTION 2. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§706-B Post-conviction DNA analysis. (1) Notwithstanding any other law or rule of court governing post-conviction relief to the contrary, a person who was convicted of and sentenced for a crime may file a motion, at any time, for DNA analysis of any evidence that:

(a) Is in the custody or control of a police department, prosecuting attorney, laboratory, or court;

(b) Is related to the investigation or prosecution that resulted in the judgment of conviction; and

(2) The court shall order the prosecuting attorney to answer a motion filed pursuant to subsection (1) not later than thirty days after filing of the motion. The court may thereafter deny the motion without hearing if the motion is patently frivolous because it is without a trace of support either in the record or in any materials submitted with the motion. The court shall conduct a hearing on the motion within ninety days of its filing if the allegations in the motion, taken as true, establish grounds for relief under subsection (3) or (4). If the court sets the motion for hearing, the court shall order that all evidence in the custody or control of a police department, prosecuting attorney, laboratory, or court that could be subjected to DNA analysis be preserved during the pendency of the proceeding. The intentional destruction of evidence after entry of such an order shall constitute grounds for appropriate sanctions, including contempt of court under section 710-1077.

(3) The court shall order testing after a hearing if it finds that:

(a) A reasonable probability exists that the defendant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis, even if the defendant later pled guilty or no contest;

(b) Identity was or should have been an issue in the proceeding that led to the verdict or sentence;

(c) The evidence sought to be analyzed has been identified with particularity and still exists in a condition that permits DNA analysis; provided that questions as to the chain of custody of the evidence shall not constitute grounds to deny the motion if the testing itself can establish the integrity of the evidence;

(d) The evidence was not previously subjected to DNA analysis or was not subjected to analysis that can now resolve an issue not resolved by previous analysis; and

(e) The application for testing is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

(4) The court may order testing after a hearing if it finds that:

(a) A reasonable probability exists that DNA analysis of the evidence will produce results that would have led to a more favorable verdict or sentence for the defendant had the results been available at the proceeding leading to the verdict or sentence, even if the defendant pled guilty or no contest;

(b) The evidence sought to be analyzed has been identified with particularity and still exists in a condition that permits DNA analysis; provided that questions as to the chain of custody of the evidence shall not constitute grounds to deny the motion if the testing itself can establish the integrity of the evidence;

(c) The evidence was not previously subjected to DNA testing or was not subject to testing that can now resolve an issue not resolved by previous testing; and

(d) The application for testing is made for the purpose of demonstrating that the defendant was guilty of a lesser offense or eligible for a more lenient sentence and not to unreasonably delay the execution of sentence or administration of justice.

(5) When the court grants a motion under subsection (3) or (4), the evidence shall be analyzed at an independent laboratory meeting standards adopted pursuant to the DNA Identification Act of 1994 (42 U.S.C. 14131). If the defendant and the prosecuting attorney cannot agree on a laboratory to perform the analysis, the court shall select the laboratory. Analysis ordered pursuant to subsection (3) shall be paid for using funds from the DNA registry special fund established pursuant to section 706-603(9). The court may require payment for analysis ordered pursuant to subsection (4) to be made by the defendant, the DNA registry special fund, or a combination thereof.

(6) If evidence had previously been subjected to DNA analysis, by either the prosecution or defense, the court may order the prosecution or defense to provide each party and the court with access to the laboratory reports prepared in connection with the DNA analysis, as well as the underlying data and laboratory notes. If DNA or other analysis of evidence was previously conducted by either the prosecution or defense without knowledge of the other party, all information relating to the testing shall be disclosed by the motion for analysis or response. If the court orders DNA analysis under this section, the court shall order the production to each party and the court of any laboratory reports prepared in connection with the DNA analysis and, in its discretion, may order production of the underlying data and laboratory notes.

(7) If the results of the post-conviction DNA testing are favorable to the defendant, the court shall conduct a hearing pursuant to applicable law or court rule governing post-conviction proceedings, notwithstanding any law or court rule that would otherwise bar such a hearing as untimely or procedurally defective, and thereafter make such orders as are necessary for disposition of those proceedings. If the results of the DNA analysis are not favorable to the defendant, the court shall give notice of the results to probation or parole authorities, as appropriate.

(8) Records reflecting the results of DNA analysis performed pursuant to this section, including the underlying data and laboratory notes, shall not be subject to disclosure pursuant to chapter 92F except to the extent of a conclusion that a particular person was, or was not, the source of the biological evidence analyzed.

(9) In any case as to which a motion is filed under this section, the prosecuting attorney shall give notice to the victim or surviving immediate family members of a homicide victim of the filing of the motion, any hearing that is held as a result, and its disposition.

(10) At any time during proceedings instituted under this section, the court may appoint counsel for a defendant determined to be indigent pursuant to section 802-4.

(11) The court shall make appropriate findings of fact and conclusions of law in support of its disposition of a motion made pursuant to this section, regardless of whether a hearing was held. In accordance with applicable rules of court, the defendant may appeal to the supreme court and intermediate court of appeals from an order denying a motion made pursuant to this section.

(12) For purposes of this section:

(a) "DNA" means deoxyribonucleic acid; and

(b) "Victim" and "surviving immediate family member" have the same meaning as in section 801D-2."

SECTION 3. Section 706-603, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:

"(7) Blood withdrawn pursuant to this section shall be [~~withdrawn~~]:

(a) Withdrawn only by a person authorized to withdraw blood under section 291E-12. The results of any analysis of the blood sample shall be recorded, preserved, and disseminated in a manner consistent with the requirements of chapter 846[.]; and

(b) Retained in accordance with section 706-A.

A defendant who has already provided the necessary samples of blood pursuant to this section shall be relieved of any further requirement to provide blood for DNA analysis, unless the court orders otherwise."

SECTION 4. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________