BILL ANALYSIS Ó
AB 818
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Date of Hearing: April 14, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
818 (Quirk) - As Introduced February 26, 2015
As Proposed to be Amended in Committee
SUMMARY: Authorizes a party in a criminal action to make a
written motion for the comparison of deoxyribonucleic acid (DNA)
evidence or latent fingerprint evidence. Specifically, this
bill:
1)States that a party in a criminal action may make a motion for
the comparison of DNA obtained from biological evidence in the
case with DNA profiles contained in the State DNA Index System
(SDIS) and, if appropriate the National DNA Index System
(NDIS).
a) Specifies that this provision does not require a
prosecuting attorney to file the motion prior to comparing
DNA obtained from biological evidence in a case with DNA
profiles contained in SDIS or NDIS.
b) Requires the party seeking the comparison to provide
written notice to the local law enforcement agency and
opposing counsel 30 days prior to a hearing on the motion.
c) States that the court may grant the motion for DNA
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comparison if it determines that the course of the DNA
profile is material to guilt or innocence.
d) Provides if the court grants the motion for DNA
comparison, the court shall order the local law enforcement
agency to conduct the comparison and order that the
identity of any individuals whose DNA profile matched the
DNA submitted for comparison, if available, and a
description of DNA profiles that matched the DNA submitted
for comparison, if no identity is associated with the
matching DNA profile, be provided to the court for
distribution to the parties.
2)Provides that a party in a criminal action may make a written
motion for the comparison of latent fingerprint evidence in
the case with fingerprints contained in the Integrated
Automated Fingerprint Identification System (IAFIS) and in
local fingerprint databases, including, but not limited to,
the Los Angeles Automated Fingerprint Identification Systems
(LAFIS).
a) Specifies that this provision does not require a
prosecuting attorney to file the motion prior to comparing
latent print evidence in a case with fingerprints contained
in IAFIS or local fingerprint databases.
b) Requires the party seeking the comparison to provide
written notice to the local law enforcement agency and
opposing counsel 30 days prior to a hearing on the motion.
c) Provides that the court may grant the motion for latent
print comparison if it determines that the comparison is
material to guilt or innocence.
d) States if the court grants the motion for latent print
comparison, the court shall order the local law enforcement
agency to conduct the comparison and order that the
identity of any individuals whose fingerprints match the
latent prints submitted for comparison be provided to the
court for distribution to the parties.
EXISTING LAW:
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1)Allows a person who was convicted of a felony and is currently
serving a term of imprisonment to make a written motion before
the trial court that entered the judgment of conviction in his
or her case, for performance of forensic DNA testing. (Pen.
Code, § 1405, subd. (a).)
2)Allows a person to request appointment of counsel by sending a
written request to the court stating that he or she was not
the perpetrator of the crime and explaining how the DNA
testing is relevant to his or her assertion of innocence.
Allows the court, if it finds the person indigent, to appoint
counsel to investigate and, if appropriate, file a motion for
DNA testing, and to represent the person solely for the
purpose of obtaining DNA testing. (Pen. Code, § 1405, subd.
(b).)
3)Authorizes the court, upon request of the convicted person or
convicted person's counsel, to order the prosecutor to make
all reasonable efforts to obtain, and police agencies and law
enforcement laboratories to make all reasonable efforts to
provide, the following documents that are in their possession
or control, if the documents exist:
a) Copies of DNA lab reports, with underlying notes,
prepared in connection with the laboratory testing of
biological evidence from the case, as specified.
b) Copies of evidence logs, chain of custody logs and
reports, including but not limited to, documentation of
current location of biological evidence, and evidence
destruction logs and reports.
c) If evidence has been lost or destroyed, a custodian of
records shall submit a report to the prosecutor and the
convicted person or convicted person's counsel that sets
forth the efforts that were made in an attempt to locate
the evidence, as specified. (Pen. Code, § 1405, subd.
(c).)
4)Requires a motion for DNA testing to be verified by the
convicted person under penalty of perjury stating that he or
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she is innocent and not the perpetrator of the crime and make
every reasonable attempt to identify both the evidence that
should be tested and the specific type of DNA testing sought.
Among other things, the motion shall explain in light of all
evidence how DNA testing would raise a reasonable probability
that the convicted person's verdict or sentence would be more
favorable if the results of DNA testing had been available at
the time of conviction. (Pen. Code § 1405, subd. (d).)
5)Requires the court to grant the motion for DNA testing if it
determines all of the following have been established:
a) The evidence to be tested is available and in a
condition that would permit DNA testing requested in the
motion;
b) The evidence to be tested has been subject to a chain of
custody sufficient to establish it has not be substituted,
tampered with, replaced, or altered in any material aspect;
c) The identity of the perpetrator of the crime was or
should have been, a significant issue in the case;
d) The convicted person has made a prima facie showing 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, special circumstance, or
enhancement allegation that resulted in the conviction or
sentence. The convicted person is only required to
demonstrate that the DNA testing he or she seeks would be
relevant to, rather than dispositive of, the issue of
identity. The convicted person is not required to show a
favorable result would conclusively establish his or her
innocence;
e) The requested DNA testing results would raise a
reasonable probability that, in light of all the evidence,
the convicted person's verdict or sentence would have been
more favorable if the results of DNA testing had been
available at the time of conviction. The court in its
discretion may consider any evidence whether or not it was
introduced at trial. In determining whether the convicted
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person is entitled to develop potentially exculpatory
evidence, the court shall not decide whether, assuming a
DNA test result favorable to the convicted person, he or
she is entitled to some form of relief;
f) The evidence to be tested was not tested previously or
the evidence was tested previously, but the requested DNA
test would provide results that are reasonably more
discriminating and probative of the identity of the
perpetrator or accomplice or have a reasonable probability
of contradicting prior test results;
g) The testing requested employs a method generally
accepted within the relevant scientific community; and
h) The motion is not made solely for the purpose of delay.
(Pen. Code, § 1405, subd. (g).)
1)Requires the court order to identify the specific evidence to
be tested and the DNA technology to be used if it grants the
motion for DNA testing. (Pen. Code, § 1405, subd. (h)(1).)
2)Allows the laboratory to communicate with either party, upon
request and in accordance with the court's order, during the
testing process. The result of any DNA testing ordered, as
applicable here, shall be fully disclosed to the person filing
the motion, the district attorney, and the Attorney General.
Requires the court to order production of the underlying
laboratory data and notes if requested by any party. (Pen.
Code, § 1405, subd. (i).)
3)Provides that the cost of DNA testing is to be borne by the
state or the applicant, as the court may order in the
interests of justice, if it is shown that the applicant is not
indigent and possesses the ability to pay, except that the
cost of any additional testing to be conducted by the district
attorney or Attorney General shall not be borne by the
convicted person. (Pen. Code, § 1405, subd. (i)(1).)
4)Requires the appropriate governmental entity to retain all
biological material that is secured in connection with a
criminal case for the period of time that any person is
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incarcerated. Allows the destruction of the biological
evidence if notice is sent to the person and the notifying
entity does not receive within 180 days of the notice any of
the following:
a) A motion filed under Penal Code section 1405;
b) A request under penalty of perjury that the evidence not
be destroyed because the person is going to file a motion
under Penal Code section 1405 within one year; or,
c) A declaration of innocence under penalty of perjury that
has been filed within one year of the judgment of
conviction. (Pen. Code, § 1417.9.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Over the last
few years, California has taken great steps to prevent the
wrongful conviction and imprisonment of innocent people. Most
recently, SB 980 (Lieu, 2014) updated the process by which
convicted individuals could request post-conviction DNA
testing to prove their innocence. However, California has not
done enough to prevent wrongful convictions from occurring in
the first place.
"Currently, prosecutors alone decide (1) whether or not an
item of physical evidence should be examined and/or tested and
(2) decide whether or not the results of that examination or
analysis should be searched against existing law enforcement
controlled databases such as CODIS, IAFIS and IBIS.
"While Penal Code §1054 allows defense counsel to make a
motion to have additional evidence tested, there is no
explicit authority to compel the prosecution to test the
evidence or have it searched against one of the databases when
directed by a judge.
"These databases are powerful crime fighting tools but are
presently only available to law enforcement and prosecution.
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They alone decide what evidence to collect and test. The ends
of justice are not met when law enforcement has exclusive
control over the decision of whether or not to test and upload
evidence that may prove the accused is actually innocent of
the crime charged and may provide evidence that someone else
is actually guilty. Furthermore, the previous president of the
National District Attorneys Association has publicly stated
that defense attorneys should have access to these databases.
"AB 818 will promote fairness and justice in the criminal
justice system."
2)The Need for this Bill: DNA databases such as CODIS, NDIS,
and SDIS contain DNA profiles uploaded by law enforcement
agencies from biological materials collected from crimes
scenes, and from arrestees and convicted offenders. IAFIS and
local fingerprint identification systems are databases that
contain biometric information and criminal histories of
offenders. A search of these databases allow criminal justice
agencies to compare DNA or fingerprints in a case that is
being investigated with data in these systems to find a match
or connect the suspect with other criminal cases.
Criminal justice agencies, such as prosecutors and law
enforcement, and qualified laboratories, are the only ones
allowed access to these databases to upload data and search
for matches. Several states also allow defense attorneys to
have access to these databases, including Colorado, Georgia,
Illinois, Maryland, Mississippi, New York, North Carolina,
Ohio and Texas. (Bronner, Lawyers, Saying DNA Cleared Inmate,
Pursue Access to Data, The New York Times (Jan. 3, 2013)
< http://www.nytimes.com/2013/01/04/us/lawyers-saying-dna-cleare
d-inmate-pursue-access-to-data.html?_r=0 > [as of Apr. 8,
2015].) In California, defense attorneys do not have access
to these databases, nor is there a statutory mechanism in
place to request a comparison of DNA or fingerprint evidence.
While prosecutors have the duty to disclose all exculpatory
evidence to the defense, they may not know that DNA or
fingerprints were found and not tested, or that testing of the
samples were not done correctly.
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A recent news article provides examples of why defendants should
be able to request comparison of DNA. The first incident
involved a case in December where a police officer assigned to
the San Francisco Police Department crime lab, confronted with
low-quality, incomplete DNA from the assailant, allegedly made
assumptions about missing data and, with her supervisor's
agreement, submitted two apparently complete genetic profiles
to be compared with those of known offenders listed in a state
database. The defense attorney learned late in trial that one
of the profiles did not match the defendant. The defendant
was convicted however, based on his confession to the crime.
Another incident illustrated in the article involved another
police officer assigned to the same crime lab. The officer is
alleged to have done an incomplete DNA analysis in the 2007
killing of a reputed gang leader by two men on bicycles. Two
suspects had been arrested in the case, but a third person's
DNA was found on one of the bicycles, which the officer did
not enter into the state and federal database. When asked
about the third DNA profile by defendants' attorneys, the
officer stated she did not enter the third DNA profile because
the material could have belonged to an innocent person. The
defendants were acquitted in that case. (Van Derbeken,
Technician Boss in SFPD Lab Scandal Flunked DNA Skills Exam,
S.F. Gate (Mar. 31, 2015)
[as of April 6, 2015].)
These examples show that during the investigation and pre-trial
phase, prosecutors may not be aware of improper analyses of
DNA or why decisions were made by the laboratory or law
enforcement not to test or upload to databases certain DNA or
fingerprints. While it is unknown how common these types of
problems occur, when they do occur, they can result in a
miscarriage of justice. Allowing the defense to request
comparison of DNA and fingerprint evidence testing will place
an additional check against these kinds of problems. This
bill allows a court to decide when to order a comparison of
DNA, and provides guidance of that decision by requiring the
court to determine in each case where the comparison is
requested that the comparison is material to guilt or
innocence.
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3)American Bar Association Standards on DNA Evidence: The
American Bar Association (ABA) has endorsed providing access
to these databases to defendants in certain cases. Rule 8.3
of the Criminal Justice Standards on DNA Evidence, approved by
the ABA House of Delegates in August 2006, provides that
information in a database should be provided only to criminal
justice agencies and only for purposes of criminal
identification, except:
a) A defendant should have access to:
i) the results of all database searches and analyses
performed in connection with the case;
ii) the search procedures used to identify profiles
relevant to the case; and
iii) upon a showing of good cause, any other information
related to the database that is relevant to the defense.
b) Upon a showing of good cause, a court should grant a
defendant's request to order a comparison of profiles in
the database with an unknown profile;
c) A prosecutor should have access to the same information
provided to the defense pursuant to subdivisions (a) and
(b) of this standard;
d) The agency maintaining a database should be permitted to
disclose information about the database for the purpose of
seeking advice on quality control and assurance;
e) Persons conducting scientific research on population
genetics or related issues may be granted access to genetic
profiles in a database for the purposes of that research,
provided that the profiles are anonymous, privacy concerns
are resolved, and the security of the information is
assured; and
f) As allowed under another rule specifying use
restrictions and destruction of DNA evidence.
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4)Argument in Support: According to the American Civil
Liberties Union (ACLU) of California, a co-sponsor of this
bill, "ACLU has long advocated reforms to prevent wrongful
convictions. When the innocent go to prison, the guilty go
free. Wrongful convictions continue to occur and typically
take many years, even decades, to rectify. An innocent person
who has been wrongfully convicted may one day regain his or
her freedom, but that person's life will never be restored.
Meanwhile, the true perpetrator remains free to commit
additional crimes.
"Thanks to the leadership of Senator Lieu, individuals who have
been convicted of a crime in California are now permitted to
request that a court order a search of the DNA database if
such a search will help prove that the person was wrongfully
convicted. (Lieu SB 980). Yet, people accused of a crime do
not have the same right. Nor is there a means to ask a court
to search the state's fingerprint and gun databases, even when
evidence has been collected from the scene of the crime that
does not match the person accused. No matter how compelling a
case may be made that a search of one of those databases will
demonstrate that the wrong person is being prosecuted, only
law enforcement may cause such a search to occur.
"AB 818 will fix this problem. AB 818 will permit the court on
its own motion or at the request of a party to order such a
search if the results of the search would be material to guilt
or innocence. This bill will affect the small number of cases
in which the prosecution has charged someone with a crime but
there is untested physical evidence - DNA, a fingerprint or a
bullet or cartridge casing - that may help prove that person
accused is actually innocent and at the same time help
identify the true perpetrator. A number of states including
Maryland and Illinois permit a judge to order search of the
DNA database at the request of a defendant who is facing
trial."
5)Prior Legislation:
a) SB 980 (Lieu), Chapter 554, Statutes of 2014, revised
the process for obtaining a court order authorizing
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post-conviction forensic DNA testing.
b) SB 83 (Burton), Chapter 943, Statutes of 2001,
established a procedure for the court to appoint counsel
for an indigent person in order to investigate and file a
motion for post-conviction DNA testing.
c) SB 1342 (Burton), Chapter 821, Statutes of 2000,
established the procedure for the post-conviction testing
of DNA evidence.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union of California (Co-sponsor)
California Public Defenders Association (Co-Sponsor)
California Attorneys for Criminal Justice
Taxpayers for Improving Public Safety
Opposition
None
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744
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