BILL ANALYSIS �
SB 980
Page 1
Date of Hearing: June 24, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 980 (Lieu) - As Amended: June 19, 2014
SUMMARY : Revises the process for obtaining a court order
authorizing post-conviction forensic deoxyribonucleic acid (DNA)
testing. Specifically, this bill :
1)Allows a court, upon appointment or retention of counsel for
the convicted person, and upon request of counsel, or at any
time after a petition has been filed, to order the counsel be
provided information and documentation as to the existence and
availability of evidence that may be subject to DNA testing,
including, but not limited to, any physical evidence relating
to the investigation, arrest, or prosecution of the defendant.
This order may be issued upon a showing that there is good
cause to believe that the information and documentation is
reasonably necessary to the counsel's effort to investigate
whether a motion for DNA testing is appropriate.
2)Allows the court to order all of the following:
a) The appropriate governmental entity to locate and
provide counsel with any documents, notes, logs, 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
governmental entity contends have been lost or destroyed;
b) The appropriate governmental entity to take reasonable
measures to locate biological evidence that may be in its
custody;
c) The appropriate governmental entity to assist counsel in
locating relevant evidence that is accessible to the
governmental entity that may be in the custody of a public
or private hospital, public or private laboratory, or other
facility; and,
SB 980
Page 2
d) The production of laboratory documents of analyses
performed from the time of evidence intake to disposition,
in the original form provided by the laboratory, as
prepared in connection with the examination or analyses of
any items collected as evidence that may contain biological
material, including, but not limited to, the underlying
data and laboratory notes prepared in connection with DNA
tests, presumptive tests for the presence of biological
material, serological tests, and analyses of trace
evidence, if the evidence had been subjected to that
testing.
3)Provides that the defendant is not required to show that a
favorable DNA test would conclusively establish his or her
innocence for the court to grant the motion for DNA testing.
4)Requires the court to determine, before granting a motion for
DNA testing, among other things, that the evidence to be
tested has been subject to a chain of custody sufficient to
establish it has not been substituted, tampered with,
replaced, or altered in any material aspect before granting
the motion for DNA testing, or that the testing itself has the
potential to establish the integrity of the evidence if the
chain of custody does not establish the integrity.
5)Requires the court to determine, before granting a motion for
DNA testing, among other things, that 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, not
whether the results, assuming a DNA test favorable to the
defendant, would ultimately require some form of relief from
the conviction.
6)Requires the testing to be conducted by a laboratory
accredited by an accreditation body that is a signatory to the
International Laboratory Accreditation Cooperation Mutual
Recognition Agreement and offers forensic laboratory
accreditation services.
7)Requires analysts, technicians, or other agents of the
laboratory conducting the testing to communicate directly with
and provide documentation directly to both parties and not to
communicate with, or take direction from, one party
SB 980
Page 3
individually, unless the parties agree otherwise.
8)Allows the court, on its own motion or of that by the
defendant, to order the relevant governmental agency to
conduct a keyboard search of the Combined DNA Index System
(CODIS) to compare a DNA profile not belonging to the
convicted person obtained from the results of DNA testing of
biological material to the profiles contained within the state
index system or the CODIS databank.
9)Provides that a court shall not order a keyboard search of the
state index system or the CODIS databank to make a comparison
that would violate state index system or CODIS rules.
10) Specifies that for the purposes of the above provision,
profiles contained within the CODIS databank include profiles
contained within the following indexes:
a) Convicted Offender Index;
b) Forensic Index;
c) Arrestee Index;
d) Missing or Unidentified Persons Index; and,
e) Missing Persons Reference Index.
11) Requires the appropriate governmental entity to retain all
biological material that is secured in connection with a
criminal case while any person remains on parole in connection
with that case.
12) Extends the period, from 90 days to 1 year after notifying
specified persons, that a government entity must wait to
dispose of specified biological material relating to a case if
the entity does not receive specified requests or court
filings.
13) Requires, if a governmental entity receives a request for
evidence and the evidence has been destroyed in violation of
law, the entity to submit a statement, signed under penalty of
perjury, by an agency representative who has personally
searched for the requested evidence, without relying solely
upon the agency's internal index or evidence location
SB 980
Page 4
database, and determined that the evidence has been destroyed.
Requires the court to consider appropriate remedies if it
finds that biological evidence was destroyed in violation of
specified law.
EXISTING LAW :
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, under specified circumstances. (Pen. Code, � 1405.)
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 and that 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. (Pen. Code, �
1405, subd. (b).)
3)Requires a motion for DNA testing to be verified by the
convicted person under penalty of perjury and, among other
things, 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. (c).)
4)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
SB 980
Page 5
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;
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;
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. (f).)
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. (g)(1).)
2)Requires testing to be conducted by a laboratory mutually
agreed upon by the district attorney in a noncapital case, or
the Attorney General in a capital case, and the person filing
the motion. Requires the court to designate the laboratory to
conduct the testing if the parties cannot agree and to
consider designating a laboratory accredited by the American
Society of Crime Laboratory Directors Laboratory Accreditation
Board. (Pen. Code, � 1405, subd. (g)(2).)
3)Requires the result of any DNA testing ordered, as applicable
here, to 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. (h).)
SB 980
Page 6
4)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).)
5)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
incarcerated. Allows the destruction of the biological
evidence if notice is sent to the person and the notifying
entity does not receive within 90 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 180 days; or,
c) A declaration of innocence under penalty of perjury that
has been filed within 180 days of the notice. (Pen. Code,
� 1417.9.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "One of the
greatest injustices a government can commit is the wrongful
conviction and imprisonment of an innocent person while the
true perpetrator remains free.
"In 2000, California became one of the first states to create
a process by which an incarcerated person who had been
convicted of a felony could obtain DNA testing to prove
innocence. Fourteen years later, however, California's
post-conviction DNA testing process is in need of some
commonsense but crucial reforms.
"These reforms would provide greater access to available
evidence for people requesting DNA testing. They give courts
SB 980
Page 7
the ability to order DNA profiles to be run through the
national DNA database, making it possible to find the real
perpetrators of crimes. They establish more consistent and
thorough protocols for the preservation and destruction of
evidence after conviction, enabling more innocent people to
get testing."
2)Background : Prior to SB 1342 (Burton), Chapter 821, Statutes
2000 and the creation of Penal Code section 1405 there was no
right to post-conviction discovery in California, nor any
procedure for letting courts evaluate whether a defendant
should have post-conviction testing of DNA. Before the
enactment of SB 1342, a defendant would have to persuade the
district attorney to allow DNA testing. SB 1342 established a
new process that allowed defendant to make a written motion to
the trial court that entered the judgment of conviction in his
or her case for the performance of DNA testing. According to
supporters of this bill, obtaining testing remains difficult
and time consuming and courts have struggled to effectively
read this law.
3)Access to Information on Available Evidence : Existing law
requires an individual requesting DNA testing to show the
court that the evidence is available and testable. However,
the law does not state clearly that an individual requesting
testing is entitled to find out if evidence is available and
testable, and some prosecutors, law enforcement agencies, and
courts have been confused as to whether they must grant
access. This bill clarifies that a court may order the
counsel to be provided access to the physical evidence for
purpose of investigation upon a showing that access to the
physical evidence is necessary to the counsel's effort to
investigate whether a motion for DNA testing is proper.
Specifically, this bill states that the court may order the
following:
a) The appropriate governmental entity provide counsel with
documents, notes, logs relating to the physical evidence or
to otherwise assist in the location of the evidence.
b) The appropriate governmental entity to take reasonable
measures to locate biological evidence that may have been
in its custody.
c) The appropriate governmental evidence assist counsel in
SB 980
Page 8
locating evidence that may be in the custody of a public or
private hospital, laboratory or other facility.
d) The production of laboratory documents of analyses
performed from the time of evidence intake to disposition,
in the original form by the laboratory or analyses of any
items collected as evidence that may contain biological
material.
4)Clarification of the Standard : Existing law provides that an
individual requesting testing must " 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 trial.
(Pen. Code, � 1405, subd. (f)(5).) According to the
proponents, courts have interpreted this language differently,
leading to confusion. Some courts have denied a request for
testing, because they believe they must determine whether the
testing will match someone else or because they believe they
have to assess whether the defendant would be entitled to a
new trial based on the evidence.
This bill, instead, provides that the motion must explain in
light of all the evidence, how the requested DNA testing would
be relevant to the issue of the identity of the perpetrator.
The proponents note that post-conviction motions for DNA
testing are discovery motions allowing the defendant to
"discover" evidence which may later help him or her in a later
challenge to his or her conviction. They do not provide a
remedy themselves. Therefore, the decision should not be
whether the defendant is entitled to a reversal, only whether
DNA testing is relevant to the identity of the perpetrator.
The California District Attorneys Association (CDAA) argues
that the as currently written, "[t]he law balances the public
interest in finality of convictions with a fair and meaningful
process for post-conviction access to biological evidence."
5)Chain of Custody : A motion for DNA testing must show that the
chain of custody was sufficient so that the evidence was not
substituted, tampered with, replaced or altered in any
material aspect. According to the proponents, some district
attorneys have argued, and some courts have denied motions
based on the fact that, the defendant could not establish the
evidence was not contaminated while it was in storage at a law
SB 980
Page 9
enforcement or other agency. This bill provides that if the
evidence has been in the custody of law enforcement or other
governmental officials or a public or private hospital it
shall be presumed to satisfy the chain-of-custody requirements
unless there is specific evidence of tampering. CDAA opposes
this provision stating in part "we have concerns about the
provisions of the bill stating that evidence has been in the
custody of the court shall be presumed to satisfy the chain of
custody. Unfortunately, many times evidence is found in court
storage rooms in an unsealed torn open condition. This
increases the potential for contamination. The chain of
custody attributable to the biological evidence at issue must
actually be intact not just presumed intact."
6)Retention of Evidence : Existing law requires law enforcement
to retain biological evidence while a person is incarcerated,
and if they wish to destroy the evidence give the defendant 90
days to request that the evidence be preserved and 180 days to
file a motion for testing. This bill would provide that the
evidence shall be kept while a person is incarcerated or on
parole. It also extends the notification time and the time to
file a motion to one year. Notices have often not reached the
person in a timely fashion and the filing of a motion for DNA
testing can take time. These deadlines will give people an
opportunity to file before evidence is destroyed.
If evidence has been destroyed, and if the appropriate entity
receives a request for evidence, the appropriate entity is
required to submit a statement signed under penalty of perjury
that a representative from the agency has personally searched
for the evidence beyond relying on the agency's internal index
or evidence location database. There have been incidences
where the agency has said there was no evidence, because it
was not logged in the index, and it was later located with a
physical search.
Currently, there is no a penalty if an agency intentionally or
negligently destroys evidence. This bill would allow a court
to take appropriate actions in instances where DNA evidence
was destroyed in violation of the law. Appropriate actions,
however, is not defined.
7)Unmatched Profiles Uploaded to CODIS : Under existing law, if
DNA evidence comes back not matching the defendant, there is
no process to make sure the evidence gets uploaded to CODIS
SB 980
Page 10
unless the district attorney seeks to have it done. This bill
would allow a court on its own motion or the motion of the
defendant to order a database search of CODIS of the profile
and requires the profiles to conform to the current CODIS
regulations. The logic behind this change is that if the DNA
does not match the person currently imprisoned for the
offense, it is possible the perpetrator is already in CODIS
and it is in the interest of justice to determine who is the
true perpetrator of the crime. A CODIS match may also help to
clearly exonerate the defendant if no link between the person
who does match and the defendant can be made.
The California Association of Crime Laboratory Directors
argues that this bill allows private laboratories access to
CODIS in violation of the QAS DNA Standards published by the
Federal Bureau of Investigation. In an attempt to address
this concern, the author has amended the bill to provide that
the court is not to order a search of CODIS or state indices
that would violate state index system or COIDS rules.
8)Argument in Support : As argued by the California Innocence
Project , this bill "would make post-conviction DNA testing
more efficient, more effective, and more consistently applied
across California, ensuring that wrongful convictions are
remedied quickly, and that the true perpetrators are brought
to justice.
"In 2000, California's legislature passed into law ? Penal
Code section 1405, with strong bipartisan support. ? But the
law as written has some problems [that] have led over the
years to time, money and resources being spent in litigation,
rather than on testing, on results, and on solving crimes.
"For example, ? an individual requesting DNA testing must show
courts that the evidence is available and in testable
condition before testing can be ordered. However, current law
does not clearly state that the individual is entitled to
information about whether the evidence is still in existence
or has been destroyed. Many police agencies point to the
absence of language to deny an individual's request for such
information, necessitation prolonged effort and litigation
just to find out if the evidence is still available. This
bill clarifies that courts may order the appropriate
governmental agencies to provide information related to the
case, assist in locating relevant evidence, and provide
SB 980
Page 11
opportunities to determine testable condition of evidence,
thus elimination of needless litigation while at the same time
maintaining safeguards that ensure the integrity of the
evidence. [] Rather than burdening the courts,
prosecutorial agencies or law enforcement, SB 980 will provide
clear guidelines on the preservation of evidence and standards
for post-conviction testing. In the end, all constituents of
the criminal justice system, including the public, can have
more confidence in convictions."
9)Argument in Opposition : The California District Attorneys
Association argues that this bill improperly lowers the
standard for post-conviction DNA testing; places an undue
burden on law enforcement and crime labs and jeopardizes the
integrity of physical evidence; increases the risk of misuse
of the DNA database and raises privacy concerns; and is
prohibitively expensive. It states that the "California
Supreme Court has expressly found that the legislative intent
behind PC 1405 'was to provide defendants with a narrowly
circumscribed opportunity to develop new evidence in
preparation for a new trial motion based on newly discovered
evidence.' Richardson v. Superior Court (2008 43 Cal.4th
1040, 1047. The amendments proposed by SB 980, by making
post-conviction testing available on virtually any showing and
without any meaningful limitation, represent a complete
reversal of legislative purpose.
"The current standard of a 'reasonable probability' in PC
1405(f)(5) mirrors other legal standards governing
post-conviction relief, and is by design, more stringent than
pretrial discovery thresholds. ? SB 980 would remove [the
balance between the public interest in finality of convictions
with a fair and meaningful process for post-conviction access
to biological evidence] and, with it, any kind of filter for
distinguishing baseless from meritorious claims. [] ?
Without effective filtering criteria, meritorious cases would
have to stand in line behind cases unsuitable for testing,
delaying the administration of justice.
?
"SB 980 seeks to use the state's database to improperly fish
around for any other suspects or witnesses, thereby subjecting
innocent persons to unnecessary investigations. Under new PC
1405.1(a), the court could potentially order labs to upload
SB 980
Page 12
profiles that have nothing to do with the case. For example,
a cigarette butt found 20 feet away from a dead body on the
side of the road could be uploaded into CODIS upon a court's
order. The bill also identifies the CODIS databank as
including profiles from the [various indices]. A criminal
laboratory would never run a DNA profile from crime scene
evidence in the Missing or Unidentified Persons Index or the
Missing Persons Reference Index, and to do so would be grossly
inappropriate."
10)Prior Legislation :
a) 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.
b) SB 1342 (Burton), Chapter 821, Statutes of 2000,
established the procedure for the post-conviction testing
of DNA evidence.
REGISTERED SUPPORT / OPPOSITION :
Support
American Association for Laboratory Accreditation
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Catholic Conference of Bishops
California Innocence Project
California Public Defenders Association
Equal Justice Society
Friends Committee on Legislation of California
Judge LaDoris H. Cordell (Ret.)
Legal Services for Prisoners with Children
Loyola Law School's Project for the Innocent
Northern California Innocence Project
TiPS
Opposition
SB 980
Page 13
California Association of Crime Laboratory Directors
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Crime Victims Action Alliance
Los Angeles County District Attorney Jackie Lacey
National Organization of Parents Of Murdered Children
Orange County District Attorney's Office
Sacramento County District Attorney Jan Scully
San Diego County District Attorney Bonnie M. Dumanis
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744