STAND. COM. REP. NO. 648

Honolulu, Hawaii

, 2005

RE: H.B. No. 1733

H.D. 1

 

 

 

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Third State Legislature

Regular Session of 2005

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred H.B. No. 1733 entitled:

"A BILL FOR AN ACT RELATING TO BIOLOGICAL EVIDENCE,"

begs leave to report as follows:

The purpose of this bill is to enhance the methods of exonerating wrongly convicted defendants, by requiring the retention of biological evidence in criminal cases and providing for post-conviction DNA testing. Specifically, this bill:

(1) Requires retention of evidence that can be used for DNA analysis relating to a criminal conviction;

(2) Establishes a procedure for post-conviction requests for DNA analysis; and

(3) Requires notice to the victim or surviving immediate family members of a homicide victim, of post-conviction DNA analysis proceedings and outcomes, and requires notice to probation and parole authorities of an outcome adverse to the defendant.

The Office of the Public Defender testified in support of this bill. The Department of the Attorney General (AG) supported the intent of this measure.

Your Committee has amended this measure by including the contents of H.B. No. 590, entitled, A Bill for an Act Relating to Identification, which proposes new provisions that would:

(1) Require DNA testing of all felons and each person arrested for or charged with any felony;

(2) Provide procedures and duties for the collection and testing of DNA samples;

(3) Establish a procedure for the expungement of DNA profiles for persons who no longer qualify for inclusion in a DNA database;

(4) Provide for post-conviction DNA testing and retention of DNA evidence;

(5) Extend the statute of limitations for felony cases where DNA evidence has been recovered; and

(6) Appropriate $750,000 to implement the new provisions on DNA collection and testing.

Your Committee scheduled H.B. No. 590 for hearing on the same agenda as H.B. No. 1733. While your Committee believes the provisions of H.B. No. 590 that expand DNA testing for law enforcement investigative purposes merit further consideration, your Committee also has concerns regarding mandatory DNA testing of persons who are merely arrested or charged with any felony, which contravenes the basic principle that a person is innocent until proven guilty. The Office of the Public Defender and the American Civil Liberties Union of Hawaii have also noted that existing law enforcement procedures already provide for search warrants and court orders requiring the collection and analysis of DNA samples where DNA testing is warranted in a criminal case. Furthermore, your Committee has concerns regarding the inclusion of juveniles for mandatory DNA testing in connection with any felony case as provided in H.B. No. 590. Juveniles are not processed under the adult criminal justice system and consequently are not afforded the same legal protections as adults, in exchange for a juvenile justice system specifically tailored towards rehabilitation and special consideration of a juvenile's age in relation to an offense. The inclusion of juveniles with adults under the DNA program proposed by H.B. No. 590 would run contrary to the standard treatment of juveniles in the justice system.

Your Committee also has concerns regarding how H.B. No. 590 allows government agencies to adopt rules and internal regulations for the collection and analysis of DNA evidence, without being subject to the rulemaking requirements of Chapter 91, Hawaii Revised Statutes (HRS). Rules adopted to implement an expanded DNA program should be subject to the procedures of Chapter 91, HRS, to ensure public review and the proper creation of rules. Your Committee also finds that the existing provisions of H.B. No. 1733 relating to the retention of biological evidence and post-conviction DNA testing should be retained.

Accordingly, your Committee has further amended this bill by:

(1) Removing provisions of H.B. No. 590 that require DNA testing of juveniles and arrestees in connection with a felony case;

(2) Clarifying that rules and regulations for the implementation of the new DNA program shall be adopted in accordance with Chapter 91, HRS;

(3) Removing provisions of H.B. No. 590 regarding retention of DNA evidence and post-conviction DNA analysis, in favor of the existing provisions of H.B. No. 1733;

(4) Deleting the name of the new Act proposed under H.B. No. 590;

(5) Adding a definition for "prosecuting attorney", to include attorneys from the Department of the Prosecuting Attorney, AG, and any other entity that prosecutes criminal cases;

(6) Removing references to DNA testing of individuals in connection with misdemeanors;

(7) Allowing DNA collecting agencies twenty working days instead of five calendar days to schedule appointments for DNA testing;

(8) Deleting the provision relating to DNA collection from persons in federal institutions, which is the responsibility of the Federal Bureau of Prisons;

(9) Requiring DNA laboratories to be approved by the Director of the Federal Bureau of Investigation rather than the American Society of Crime Laboratory Directors Laboratory Accreditation Board;

(10) Providing that print impressions collected of each hand shall be forwarded to and maintained by the AG;

(11) Clarifying that anyone who negligently or recklessly fails to provide a required DNA sample is guilty of a misdemeanor;

(12) Adding a severability clause; and

(13) Making technical, nonsubstantive amendments for clarity and style.

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1733, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 1733, H.D. 1, and be referred to the Committee on Finance.

Respectfully submitted on behalf of the members of the Committee on Judiciary,

 

____________________________

SYLVIA LUKE, Chair