BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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SB 1342 (Burton) 2
As Amended March 30, 2000
Hearing date: April 11, 2000
Penal Code
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FORENSIC TESTING: POST CONVICTION
HISTORY
Source: Author
Prior Legislation: None
Support: Crime Victims United of California; American
Federation of State, County and Municipal
Employees; American Civil Liberties Union;
California Attorneys for Criminal Justice
Opposition:None
KEY ISSUES
SHOULD A CONVICTED DEFENDANT BE PERMITTED TO MAKE A WRITTEN MOTION
TO REQUEST THE PERFORMANCE OF DNA TESTING ON EVIDENCE THAT IS
RELEVANT TO THE CHARGES THAT RESULTED IN HIS OR HER CONVICTION OR
SENTENCE UNDER SPECIFIED CIRCUMSTANCES?
SHOULD THE LAW PROVIDE THAT BIOLOGICAL EVIDENCE SHOULD BE PRESERVED
AS LONG AS A PERSON IS INCARCERATED, OR UNLESS CERTAIN NOTICE
REQUIREMENTS ARE MET?
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PURPOSE
The purpose of this bill is to create a procedure for the
post-conviction testing of DNA evidence for defendants who
did not have that technology available at the time of trial
and where identity was a significant issue that resulted in
his or her conviction.
Existing law sets forth when a defendant may appeal a
conviction. (Penal Code 1236 et seq.)
This bill provides that a defendant who was convicted may
make a written motion before the trial court for the
performance of forensic DNA testing on evidence that is
related to the charges that resulted in his or her
conviction but which was not tested because either the
evidence or the technology was not available at the time of
the trial.
This bill provides that the motion requires notice upon the
Attorney General and the district attorney of the county of
conviction 30 days prior to the hearing.
This bill provides that the motion shall be heard by the
judge who conducted the trial unless that judge is
unavailable.
This bill provides that the court shall allow the testing
if the defendant presents a prima facie case that identity
was a significant issue that resulted in his or her
conviction and the court finds all of the following:
The result of the testing has the scientific potential to
produce new, noncumulative evidence that is material and
relevant to the defendant's assertion of innocence.
The testing requested employs a method generally accepted
within the relevant scientific community.
The evidence to be tested is available and in a condition
that would permit the DNA testing requested in the
motion.
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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
material aspect.
This bill provides that if known to the defendant, or his
or her counsel, the motion shall identify the evidence
subject to the testing and the specific type of testing
that is required.
This bill provides that at any time the court may appoint
counsel for an indigent applicant under this section.
This bill provides that if the motion is granted, the
testing shall be conducted at a mutually agreed upon lab.
This bill provides that if the results shall be disclosed
to both the person filing the motion and to the district
attorney and either party can request the production of the
underlying data and notes.
This bill provides that the cost of the DNA testing shall
be borne by the state if the applicant is indigent.
This bill provides that evidence samples containing
biological material are exempt from any law requiring the
disclosure of the information to the public or the return
of biological specimens.
This bill provides that any biological material secured in
connection with a criminal case shall be preserved as long
as the person remains incarcerated unless the governmental
entity notifies specified persons of their intent to
destroy the material and none of those notified file a
request to have the material tested within 180 days of the
notice.
COMMENTS
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1. Need for the Bill
According to the author:
In its report to U.S. Attorney General Janet Reno,
the National Commission on the Future of DNA
Evidence states:
The advent of DNA testing raises the question
of whether a different balance should be struck
regarding the right to postconviction relief.
The probative value of DNA testing has been
steadily increasing as technological advances
and growing databases expand the ability to
identify perpetrators and eliminate suspects.
The strong presumption that verdicts are
correct, one of the underpinnings of
restrictions on postconviction relief, has been
weakened by the growing number of convictions
that have been vacated because of exclusionary
DNA results. (Postconviction DNA Testing:
Recommendations for Handling Requests, National
Commission on the Future of DNA Evidence,
National Institute of Justice, U.S. Department
of Justice, September 1999, p. xiv.)
Based on research conducted by the National
Institute of Justice, since U.S. courts began
allowing DNA evidence in 1987, 70 individuals have
been freed because of DNA tests that conclusively
proved their innocence. At least nine were on
death row, and one was just five days from being
executed. At the same time, the real perpetrators
were not brought to justice for those crimes. Of
the 70 cases nationally, 4 were in California where
the average term served was just over 10 years
before being exonerated. Although the use of DNA
evidence in criminal proceedings, where
appropriate, is becoming as commonplace as
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fingerprinting, such evidence was not available to
others who are currently incarcerated.
A 1995 study of forensic laboratories that conduct
DNA testing found that in roughly 23 percent of
cases, DNA test results excluded the primary
suspects. In the cases reported by the FBI as part
of this study, DNA test results excluded 20 percent
of suspects, and only 60 percent matched the
primary suspect. Without these test results, many
of these suspects quite possibly would have been
tried and convicted based on other faulty evidence,
mistaken eyewitness identification, or even
misconduct or incompetence on the part the
attorneys involved in the cases.
At an annual cost of more than $25,000 per
inmate-not to mention trial costs and the unjust
deprivation of an individual's freedom-we simply
cannot afford to incarcerate the innocent. The
imprisonment costs alone in those four California
cases totaled more than $1.2 million. Yet the cost
to perform DNA tests in those four cases was
probably less than $20,000, based on the average
cost of a test.
Innocent people should not serve time or be
executed for crimes they did not commit. As long
as an innocent person is incarcerated for a crime
he or she did not commit, the guilty party remains
at-large, a danger to society and unpunished.
2. Release of Convicted Individuals Because of Doubt of
Guilt
According to the New York Times:
Since the United States Supreme Court reinstated
capital punishment in 1976, 506 people have been
executed. In that same period, 82 convicts
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awaiting execution have been exonerated-a ratio of
1 freed for every 7 put to death.
About half of them were exonerated in the 1990's, 6
so far this year [1999].
In many cases convictions were overturned when
newly available testimony or physical evidence,
including DNA testing, cast doubt on the guilt of
the inmates. (New York Times, August 22, 1999
Section 4, Page 1)
At the Innocence Project run by attorneys Peter Neufeld and
Barry Scheck at Cardoza Law School in Manhattan, second and
third year law students evaluate cases from all over the
country to determine for which cases they will seek
post-conviction DNA testing. As of January 2000 the
Project has "played a role in thirty-nine exonerations."
(Boyer, Peter J. "Annals of Justice: DNA on Trial" New
Yorker January 17, 2000 page 42) In order to qualify for
help by the Innocence Project the case had to have
available biological material and "the defense had to have
been that the accused had been wrongly identified by the
victim." (Id. at 45)
3. No Set Standard for Post-conviction DNA Testing in
California
In California there is no right to post-conviction
discovery in criminal cases nor is there a set procedure
for letting the courts evaluate whether a defendant should
have access to post-conviction testing of DNA. As a
result, in California in the cases where DNA has been
tested and an inmate has been released the inmate has had
to convince the prosecutor in the original case to allow
DNA testing. Of the 70 cases in the United States that
have been vacated on the basis of DNA testing, 4 were in
California.
When discussing the case of Herman Atkins originally
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prosecuted in Riverside County and recently released from
prison, Peter Neufeld of the Innocence Project stated
"California currently lacks a statute giving inmates the
right to post-conviction DNA testing . . . As a result an
inmate is at the mercy of the good-will of the prosecutor."
(Los Angeles Times, February 9, 2000, Section A, Page 10)
According to the article, a motion by the Innocent Project
stated that "the original prosecutor in the case resisted
testing for several years." (Id.) Upon his release he had
been in prison for 12 years and it had taken him "three
years to get a judge to agree to DNA testing of the
biological evidence recovered from the victim, who had
fingered Atkins as her attacker." (USA Today, February 29,
2000)
At this time only New York and Illinois have statutes
providing for post-conviction testing in certain cases.
Currently, in addition to this legislation there is federal
legislation proposed (see Comment 6 below) as well as
legislation proposed in other states.
4. Post-conviction Testing of DNA in This Bill
a. Written motion
This bill requires a defendant who was convicted to file
a written motion before the trial court that entered
judgment of conviction to request the performance of
forensic DNA testing. Notice of the motion must be
served on the district attorney in the county of
conviction and the Attorney General 30 days prior to the
hearing. The bill provides that the motion shall be
heard by the judge who conducted the trial unless that
judge is unavailable.
If known to the defendant or the defendant's attorney,
the motion should describe the evidence subject to the
testing and the type of testing to be available.
Although in many cases the defendant may not even know
what evidence the prosecution may have had that could be
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tested, if they do have that knowledge this should help
focus the discussion of the motion.
SHOULD WHEN A JUDGE IS "UNAVAILABLE" BE DEFINED?
SHOULD WHETHER OR NOT THE JUDGE IS "UNAVAILABLE" BE
DETERMINED BY THE PRESIDING JUDGE OF THE COURT TO GIVE
THE COURT THE ABILITY TO ALLOW A DIFFERENT JUDGE TO HEAR
THAT CASE IF, FOR EXAMPLE, THE ORIGINAL JUDGE IS
CURRENTLY INVOLVED IN A TRIAL?
b. Findings necessary to grant the motion
This bill provides that the court shall allow the
post-conviction DNA testing if the defendant presents a
prima facie case that identity was a significant issue
that resulted in his or her conviction and the court
finds all of the following:
The result of the testing has the scientific potential to
produce new, noncumulative evidence that is material and
relevant to the defendant's assertion of innocence.
The testing requested employs a method generally accepted
within the relevant scientific community.
The evidence to be tested is available and in a condition
that would permit the DNA testing requested in the
motion.
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
material aspect.
Thus, the only persons who could request DNA testing
under this bill are those who had cases in which
"identity" was the key issue. Thus, these are cases
where a person was identified by a victim or witness as
the person who had committed the crime and no defense
such as self-defense or consent was used. This will
limit the number of cases that this bill will apply to.
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The number of cases will also be limited because there
must be some sort of genetic material available to be
tested. Seventy percent of the Innocence Project's cases
have been dropped for this reason alone. (Boyer, Peter
J. "Annals of Justice: DNA on Trial" at page 44) In many
older cases the evidence will not exist because it was
not collected properly, it was not stored properly, or it
has since been destroyed.
c. Cost of testing
This bill provides that the cost of testing shall be
borne by either the state or the defendant and that the
court shall determine who pays the costs in the interest
of justice. The tests are approximately $3,000-$5,000.
The author believes that in most cases the costs will be
borne by the state because these defendants are likely
indigent as they are incarcerated. The author believes
one cannot put a price on justice but also that because
of the great cost of incarceration, setting up a process
where defendants can request testing could ultimately
save the state money if even a few of the defendants are
exonerated. For example, if this process had been in
place three years ago it is likely that Atkins would have
been released earlier. Even if he had only been released
one year earlier the state would have saved over $25,000
in incarceration costs which could have paid for the
testing of at least five other inmates.
In an editorial supporting this bill, the San Jose
Mercury News noted when discussing the cost of the tests
"that's a bargain compared with the $300,000 or so [the
state] spent jailing Herman Atkins for a dozen years. It
is a small price to right the injustice to those whose
lives are devastated by wrongful imprisonment." (San
Jose Mercury News, March 11, 2000)
d. Counsel
This bill provides that the court may appoint counsel at
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any time for an indigent offender. An incarcerated
individual may need help determining what evidence needs
to be tested as well as what laboratory would be
appropriate (see below). If a court believes that a
defendant needs counsel, then the author believes that
the court should have the ability to appoint counsel.
e. Laboratory to be used for the testing
This bill provides that the laboratory where the testing
shall be conducted shall be mutually agreed upon by the
district attorney or the Attorney General and the person
filing the motion. If the parties cannot agree then the
court shall designate the laboratory to conduct the
testing.
f. Other provisions
This bill provides that the testing ordered under this
section shall be fully disclosed to both the party filing
the motion and to the district attorney. The court shall
order the production of the underlying data and notes if
either party requests it.
This bill provides that evidence samples containing
biological material are exempt from any law requiring
disclosure of information to the public or the return of
biological specimens. This provision was requested by
the Attorney General to make it clear that these
specimens do not fall within existing law requiring such
disclosure.
5. Preservation of evidence provided for in this bill
When the statute passed in Illinois providing for
post-conviction testing of DNA evidence it was reported
that some biological evidence was destroyed before
defendants had a chance to request to have it tested. In
California there is no provision requiring the preservation
of evidence and thus the author has included a provision
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requiring such preservation in this bill. The language for
this section was taken from language currently in a bill in
the U.S. Senate. (See Comment 6.)
This bill provides that the appropriate governmental entity
shall preserve any biological material secured in
connection with a criminal case for the period of time that
any person remains incarcerated in connection with that
case. The bill further provides that the governmental
entity may destroy the biological entity before the person
is released if all of the following conditions are met:
The governmental entity notifies all of the following
persons of the intention of the governmental entity to
destroy the material and the provisions of this section:
any person who remains incarcerated, any attorney of
record, the public defender and district attorney in the
county of conviction and the Attorney General.
No person makes an application for post-conviction
testing of the evidence within 180 days of receiving the
notice required.
No other provisions of law require that biological
evidence be preserved.
6. Federal Legislation
On February 10, 2000 Senate Bill 2073 was introduced by
Senators Leahy, Levin, Feingold, Moynihan and Akaka in the
U.S. Senate. This bill provides, in part for post-conviction
DNA testing of defendants. The bill provides that if it
passes states will be required to make DNA testing available
to convicted persons to the same extent that it requires.
As currently drafted, the federal legislation is broader
than this bill. While this bill limits testing to cases
where the issue was innocence, the federal legislation
provides that any person in custody may apply for DNA
testing of any biological evidence that is related to the
investigation or prosecution that resulted in judgment.
The federal bill does not limit the testing to cases where
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identity was an issue and thus could apply to many more
cases than this legislation.
It also requires that the evidence be in the actual or
constructive possession of the government and that it not
have previously been tested for DNA unless it can be
subjected to retesting with a new DNA technique.
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The federal legislation also requires that the cost of the
testing be borne by the Government and allows the court to
appoint counsel. The federal legislation also has the
preservation of evidence language upon which the language
in this bill was based.
7. Attorney General's Office
The Attorney General's Office has no position at this time
but has expressed concerns to the author. According to the
author, the most recent amendments are in response to some
of the concerns raised by the Attorney General's Office.
The Attorney General believes that the standard for testing
should be that it is dispositive, not merely, relevant, on
the question of innocence. The author believes that this
proposed standard is too narrow and that in those cases
where it is not dispositive of the evidence a court can
decide its relevancy.
The Attorney General would also like "points of procedure
to ensure this provision is not used to delay the execution
of sentence" added to this bill.
8. Technical Amendments
The following technical amendments should be made:
On page 3, line 10, after conviction insert "and"
On page 3, line 14, after "finds" insert "all of"
On page 5, line 2, delete "notice" and replace with
"evidence"
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