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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