BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
SB 980 (Lieu) - Prisoners: DNA testing.
Amended: May 7, 2014 Policy Vote: Public Safety 5-2
Urgency: No Mandate: Yes
Hearing Date: May 12, 2014 Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: SB 980 would make numerous changes to provisions
of law pertaining to post-conviction DNA testing, including but
not limited to, reducing the standard of review for granting a
post-conviction motion for DNA testing, extending the retention
period for biological evidence beyond the term of incarceration,
and clarifying the role of a governmental agency to assist in
the location of DNA evidence upon order of the court.
Fiscal Impact:
Unknown, very major ongoing costs potentially in excess of
hundreds of millions of dollars (General Fund) annually to
the Department of Justice (DOJ) for increased attorney fees,
additional DNA testing, staffing, and storage costs due to
the reduced standard of review required for testing and the
extended evidential retention period required under this
measure.
Unknown, ongoing potentially very major state-reimbursable
local costs (General Fund) for mandated activities including
evidence storage to retain biological evidence for an
extended period of time.
Ongoing potentially major non-reimbursable local costs
(Local) for assistance in locating biological evidence upon
discretionary order of the court.
Potentially significant ongoing increase in court workload
(General Fund*) to hear additional motions for DNA testing.
Potentially significant future savings due to reduced state
incarceration costs (General Fund) to the extent inmates are
released from prison as a result of the additional DNA
testing. The release of five inmates who would have
otherwise served an additional 10 years in prison would
result in cumulative savings of over $1.5 million. Savings
would be offset in part by restitution paid by the state of
$100 per day for wrongful incarceration. Any savings could
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potentially be offset or exceeded should the DNA testing
result in the positive identification and conviction of
another individual for the crime.
*Trial Court Trust Fund
Background: SB 1342 (Burton) Chapter 821/2000, established a
defendant's right to post-conviction discovery and a procedure
for authorizing courts to evaluate whether a defendant should be
granted post-conviction testing of DNA. Pursuant to Penal Code �
1405, a person who was convicted of a felony and is currently
serving a term of imprisonment may make a written motion before
the trial court that entered the judgment of conviction in his
or her case for performance of DNA testing under specified
circumstances.
This bill seeks to provide greater access to available evidence
for defendants requesting DNA testing, and establish clear
guidelines for law enforcement, prosecutors, and courts to
follow when determining whether to grant such motions.
Proposed Law: This bill would make the following revisions to
provisions of law regarding post-conviction DNA testing:
Revises the standard for granting a motion for DNA
testing from the threshold that the testing would raise a
reasonable probability that the convicted person's verdict
or sentence would be more favorable if the results of the
DNA testing had been available at the time of the
conviction, to instead require the convicted person to
explain, in light of all the evidence, how the requested
DNA testing would be relevant to the issue of the identity
of the perpetrator.
Provides that before a grant of a motion for DNA
testing, the defendant is not required to show that a
favorable test would conclusively establish his or her
innocence.
Provides that upon appointment or retention of counsel
to investigate and, if appropriate, to file a motion for
DNA testing, a court may order the appropriate governmental
agency to locate and provide counsel with any documents or
reports relating to items of physical evidence collected in
connection with the case or to otherwise assist the
defendant in locating items of biological evidence that the
entity contends have been lost or destroyed; take
reasonable measures to locate biological evidence that may
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be in its custody; assist counsel in locating relevant
evidence that may be in the custody of a public or private
hospital, laboratory, or other facility.
Revises the chain of custody standard to provide that
evidence that has been in the custody of law enforcement,
other governmental officials, or a public or private
hospital shall be presumed to satisfy the chain of custody
requirement, absent specific evidence of material
tampering, replacement, or alteration.
Provides that the court shall presume the requested DNA
testing results will be exculpatory, which may be results
that exclude the convicted person, or results that both
exclude the convicted person and match another suspect or
an offender in the Combined DNA Index System (CODIS), or
match an unrelated crime or crimes in CODIS.
Requires analysts, technicians, or other agents of the
laboratory conducting the testing, including local or state
governmental laboratories, to communicate directly with and
provide documentation directly to both parties
simultaneously, and shall not communicate with one party
individually, unless the parties agree otherwise.
Provides that if the court grants a motion for DNA
testing, testing is performed, and a DNA profile is
obtained of biological material that excludes the convicted
person, the court or defendant may order a database search
of CODIS to compare the profile obtained from testing to
the CODIS databank.
Requires governmental entities to retain biological
material for an extended period of time past incarceration,
to include while the person is on probation or parole.
Provides that governmental agencies must wait one year,
instead of 90 days, after sending notification of intention
to dispose of biological material, to receive a response
from the individual requesting the material not be
destroyed or disposed of, or a motion for DNA testing is
filed.
Authorizes the court to consider appropriate remedies if
the court finds that any biological evidence was destroyed
in violation of these provisions of law.
Prior Legislation: SB 1342 (Burton) Chapter 821/2000 requires
the court to grant a motion for the performance of DNA testing
under specified conditions for any person convicted of a felony
currently serving a term of imprisonment, and requires the
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appropriate governmental entity to preserve any biological
material secured in a criminal case, as specified.
Staff Comments: By reducing the standard of review for
post-conviction DNA testing and extending the mandated retention
period for biological evidence, the provisions of this bill
could result in very major costs to both state and local
agencies.
While the number of new claims for post-conviction DNA that will
be brought forward due to the provisions of this bill cannot be
known with certainty, and will be dependent on the actions of
attorneys and defendants, and the subsequent decisions made by
judges, it is estimated the potential increase in motions for
testing could be substantial based on the significantly reduced
standard of review that, "DNA testing would be relevant to the
issue of the identity of the perpetrator."
The DOJ has indicated very major costs based on an estimate of
over 40,000 new claims for post-conviction DNA testing. While
the number of new claims, as stated above, cannot be known with
certainty, assuming even 10 percent of the projected estimate,
or 4,000 new claims, would result in new costs of $200 million
annually (General Fund) for attorney fees alone using the low
range of attorney fees in these cases that range from $50,000 to
$1 million per case. The DOJ has also indicated major costs for
additional staffing, DNA testing, and potential IT enhancements.
This bill specifies that upon a showing of good cause to believe
that it is reasonably necessary to counsel's effort to
investigate whether a motion for DNA testing is appropriate, the
court may order agencies to locate and provide counsel with
relevant information, assist the defendant in locating relevant
evidence, as specified, and take reasonable measures to locate
biological evidence that may be in its custody. Due to the
projected increase in motions filed for DNA testing, the
associated workload on governmental entities is also likewise
projected to increase significantly. Ongoing costs to local law
enforcement agencies, which could be substantial, are not
estimated to require reimbursement as state-mandated activities,
as assistance would be imposed only upon order of the court.
This bill extends the mandated retention period for biological
evidence beyond the period of a defendant's incarceration to
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include the period of probation or parole (generally, three
years). Additionally, defendants would be provided with an
additional nine months (from 90 days to one year) to respond to
a notification of disposal of evidence, as well as six
additional months (from 180 days to one year) within which to
file a motion for DNA testing or make a declaration of
innocence. In total, governmental agencies could be required to
retain biological evidence for an additional 51 months under the
provisions of this measure. Crime lab directors have indicated
that while DNA storage for two to three years is not necessarily
significant, to the extent the extended retention period results
in a storage period that would exceed 10 years, costs could
significantly increase. In addition, to the extent the extended
period of retention necessitates additional storage area/space
and equipment (i.e., freezers), ongoing costs to DOJ and local
agencies (likely state-reimbursable), would potentially be very
major.
To the extent additional motions for DNA testing are filed and
granted under the provisions of this bill, potentially
significant future cost savings through reduced state
incarceration costs (General Fund) could be realized to the
extent inmates are released from prison. The release of five
inmates who would have otherwise served an additional 10 years
in prison would result in cumulative savings of over $1.5
million. In some cases, savings would be offset in part by
restitution paid by the state of $100 per day for wrongful
incarceration. Staff does note that any savings could
potentially be offset or exceeded should the DNA testing result
in the positive identification and conviction of another
individual for the crime.
Recommended Amendments: To reduce costs, the author may wish to
consider raising the standard of review to be considered by the
courts for granting motions for DNA testing, and/or reducing the
extended length of time agencies are mandated to retain DNA
evidence.