BILL ANALYSIS
SB 1342
Page 1
Date of Hearing: June 20, 2000
Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
SB 1342 (Burton) - As Amended: June 13, 2000
SUMMARY : Requires the court to order DNA testing on evidence
relevant to conviction of a criminal defendant upon specified
conditions, and requires the appropriate governmental entity to
preserve any biological material secured in a criminal case as
specified. Specifically, this bill :
1)Provides that a defendant in a criminal case may make a motion
in the trial court for performance of DNA testing on evidence
relevant to the charges that resulted in the conviction or
sentence which was not tested because either the evidence or
the technology for forensic testing was not available at the
time of trial.
2)Requires that the motion for DNA testing be verified by the
defendant under penalty of perjury that the information
contained in the motion be true and correct to the best of his
or her knowledge.
3)Requires that a notice of the hearing be served on the
Attorney General and the district attorney in the county of
conviction 30 days prior to the hearing, and that the hearing
be heard by the judge who conducted the trial unless the
presiding judge determines that judge is unavailable.
4)The court shall grant the hearing on the motion if the
defendant presents a prima facie case that identity was a
significant issue in the case, and the court finds all of the
following:
a)The result of the testing has the scientific potential to
produce new, non-cumulative evidence that is material and
relevant to the defendant's assertion of innocence.
b)The testing requested employs a method generally accepted
within the scientific community.
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c)The evidence to be tested is available and in a condition
that would permit DNA testing requested in the motion.
d)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.
5)Requires, if known, that the motion identify the evidence
subject to the testing and the specific type of testing being
requested by the defendant.
6)States that if the prosecuting attorney objects to the
specific items sought to be tested, to the specific type of
test requested, or if there is an issue as to the condition of
a questionable sample, the court shall conduct a hearing to
resolve the issues.
7)Provides that if a motion for DNA testing has been granted,
the testing shall be conducted by a laboratory mutually agreed
upon by the defendant and the district attorney in a
non-capital case or the Attorney General in a capital case.
If the parties cannot agree, the court shall designate the
laboratory to conduct the test.
8)Requires that the results of any testing ordered be fully
disclosed to each of the parties. If requested by either
party, the court shall order production of the underlying data
and notes.
9)Provides that the cost of DNA testing shall be borne by the
State or by the applicant if the court finds that the
applicant is not indigent and has the ability to pay.
Requires that the designated laboratory present any bill for
the State's share of costs to the court for approval; and upon
approval, the laboratory shall submit the bill to the state
treasurer for payment. If, after 30 days the superior court
has taken no action on the bill, it shall be deemed approved.
10)Provides that the court may at any time appoint counsel and
upon request of the defendant, in the interests of justice,
the court may order the defendant present at the hearing on
the motion.
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11)Requires the appropriate governmental entity to preserve any
biological material secured in connection with a criminal case
for the period of time that any person remains incarcerated in
connection with the case, but a governmental entity may
destroy biological materials before the expiration date of the
following conditions are met:
a)The governmental entity notifies the person who remains
incarcerated in connection with the case, any counsel of
record, the public defender and the district attorney in
the county of conviction and the Attorney General.
b)No person makes an application for an order requiring DNA
testing on the evidence sought to be destroyed within 180
days of receiving the above notice.
c)No other provision of law requires that the biological
evidence be preserved.
EXISTING LAW :
GENERAL PROVISIONS
1)Establishes the DNA and Forensic Identification Data Base and
Data Bank Act of 1998. (Penal Code Section 295(a).)
2)States that it is the Legislature's intent to use the DNA and
Forensic Identification Data Bank to detect and prosecute
individuals responsible for sex offenses and other violent
crimes, exclude suspects who are being investigated for such
crimes, and to identify missing and unidentified persons.
(Penal Code Section 295(b)(3).)
3)Requires the Department of Justice's (DOJ) DNA laboratory, the
California Department of Corrections (CDC), and the California
Youth Authority (CYA) to adopt policies and enact regulations
as necessary to give effect to the Act. (Penal Code Section
295(e)(1).)
4)Authorizes DOJ laboratories approved by ASCLD/LAB, or any
approved certifying body, and any crime laboratory designated
by DOJ and accredited by ASCLD/LAB to analyze crime scene
samples. (Penal Code Section 297(a).)
5)States that the DOJ shall perform DNA analysis and other
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forensic identification analysis only for identification
purposes. Provides that all DNA profiles retained by the DOJ
are confidential except as provided by statute. (Penal Code
Section 295.1(a), 299.5(a).)
CONVICTED PERSONS REQUIRED TO SUBMIT SAMPLES
6)Requires any person convicted of any of the following crimes
to provide two specimens of blood, a saliva sample, right
thumbprints and a full palm print of each hand: any
registerable sex offense, murder or attempted murder,
voluntary manslaughter, felony spousal abuse, aggravated
sexual assault of a child, felonious assault or battery,
kidnapping, mayhem, and torture. (Penal Code Section
296(a)(1)(A - I).)
7)Provides that any person who is required to register as a sex
offender who is committed to any CYA institution where the
person was confined, granted probation, or released from a
state hospital as a mentally disordered sex offender shall be
required to give the specified biological samples. (Penal
Code Section 296(a)(2).)
SAMPLES FROM SUSPECTS
8)Provides that samples obtained from a suspect shall only be
compared to samples taken from the criminal investigation for
which he or she is a suspect and for which the sample was
originally taken either by court order or voluntarily. (Penal
Code Section 297(b).)
9)Provides that a person whose DNA profile has been included in
the data bank shall have his or her information and materials
expunged if the conviction was reversed and the case
dismissed, the person was found to be factually innocent, or
the person has been acquitted of the underlying offense.
(Penal Code Section 299(a).)
10)Requires the DOJ to review its data bank to determine whether
it contains DNA profiles from persons who are no longer
suspects in a criminal case. Evidence accumulated from any
crime scene with respect to a particular person shall be
stricken when it is determined that the person is no longer a
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suspect. (Penal Code Section 299(d).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement . According to the author, "This bill would
allow a convicted defendant to make a motion before the trial
court for DNA testing that was not available at trial because
the evidence or the testing technology was not available to
the defendant. California has no statute or case law that
authorizes such testing. This bill balances the need for
discovering the truth with procedural fairness and
practicality. It does not allow DNA testing in every case -
only where the identity of the accused was a significant issue
at trial, and the court finds, among other things, that the
result of the testing will produce new evidence that is
material and relevant to the defendant's assertion of
innocence. The bill also provides safeguards to ensure that
the evidence is available and reliable.
"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)Background . At the Innocence Project run by attorneys Peter
Neufeld and Barry Scheck at the Cardoza Law School in
Michigan, second- and third-year law students evaluate cases
from all over the country to determine which cases they will
seek post-conviction DNA testing. As of January 2000, the
Innocence Project has "played a role in 39 exonerations."
(Boyer, Peter J. "Annals of Justice: DNA on Trail", 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.)
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
cases where DNA has been tested and an inmate has been
released, the inmate has had to convince the prosecutor in the
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original case to allow DNA testing. Of the 70 cases in the
United States that have been vacated on the basis of DNA
testing, four were in California.
When discussing the case of Herman Atkins, originally prosecuted
in Riverside County and recently released from prison, Neufeld
of the Innocence Project stated, "California currently lacks a
statute giving inmates the right to post-conviction DNA
testing. . . . As a result, an inmates 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 Innocence Project stated, "The
original prosecutor in the case resisted testing for several
years." (Id.) Upon Atkins' release, he had been in prison
for 12 years and it has taken Atkins "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, as well as legislation proposed in other states.
3)Federal Legislation . SB 2073 (Leahy) provides, in part, for
DNA testing of biological materials related to the
investigation or prosecution that resulted in the judgment for
which the person is in custody. If passed, SB 2073 would
require that states make similar DNA testing available to
convicted persons.
SB 2073 would require that the court order DNA testing upon a
determination that the testing may produce non-cumulative,
exculpatory evidence relevant to the claim of wrongful
conviction or sentence. In other words, the defendant would
be required to show that the testing might produce evidence
favorable to the defendant. This bill only requires that
defendant show that the testing has the scientific potential
to produce new non-cumulative evidence, which would be the
case any time previously untested materials are examined. SB
2073 requires that the person requesting the order for testing
be in custody and that the material to be tested relate to the
judgment for which the person is in custody. This bill does
not require that the defendant be in custody, and testing can
be requested on any charge that resulted in a conviction or
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sentence. Therefore, a defendant may request testing on a
prior conviction which served as a basis for an increased
sentence. In addition, this bill would apply in all criminal
cases, is not limited to felony cases, and would include
misdemeanors as well. This bill requires that identity be a
significant issue resulting in the conviction and, in that
respect, is narrower than SB 2073.
According to the Associated Press, Senator Orrin Hatch, Chairman
of the Senate Judiciary, intends to introduce legislation that
would provide for DNA testing in order to establish innocence.
The Hatch legislation would only be operative for two years
after the date of enactment. It requires that the defendant
assert actual innocence under penalty of perjury, and identity
had to have been an issue at the trial. Under the Hatch
proposal, an in-custody defendant would be required to show
that testing of the specified evidence would, assuming
exculpatory results, establish the actual innocence of the
applicant. This bill only requires that the specified
evidence be relevant to the charge. Is this bill overly broad
in that it does not require that the defendant show some
degree of likelihood that the testing of the specified
material would produce favorable evidence or establish actual
innocence?
4)Attorney General's Office . The Attorney General's Office has
no position on the bill at this time, but believes that the
proposed standard for ordering DNA testing is too low. The
Attorney General's Office states, "We share your goal
providing a means by which innocent persons who have been
wrongly convicted may use new scientific techniques to prove
their innocence. However, as you are aware, we have
significant concerns about the bill as currently drafted. Our
primary concern is the standard employed. SB 1342 mandates
DNA testing if identity was a significant issue at the trial,
and the court finds that results of the testing 'has the
scientific potential to produce new non-cumulative evidence
that is material and relevant to the defendant's assertion of
innocence.' We believe testing should be granted if the
evidence to be tested would be dispositive, not merely
relevant, on the question of innocence. Additionally, we
believe it is essential to include language on a number of
points of procedure so as to ensure this provision is not used
to delay the execution of sentence or the administration of
justice and will not unjustly divert scarce and costly
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resources."
5)Technical Amendments . This bill allows a defendant who was
convicted in a criminal case to make application for an order
requiring that DNA testing be conducted on evidence relevant
to the conviction or sentence. This bill should be amended to
clarify that these provisions only apply to defendants
convicted after a court or jury trial in order to prevent
defendants who have pled guilty from bringing a motion.
Additionally, this bill should be amended to clarify that
identity had to have been a significant issue that resulted in
the conviction or sentence. This bill should also be amended
in order that results of any testing be disclosed to both the
person filing the motion and the district attorney or Attorney
General.
6)Arguments in Support .
a)According to the American Civil Liberties Union, "DNA
testing has exonerated more than 60 inmates in the United
States and Canada. (See DNA Bill of Rights, American Bar
Association Journal, March 2000). The advent of DNA
testing raises serious concerns about the prevalence of
wrongful convictions, especially wrongful convictions
arising out of mistaken eyewitness identification
testimony. According to a 1996 Department of Justice study
entitled 'Convicted by Juries, Exonerated by Science: Case
Studies of Post-Conviction DNA Exonerations', in
approximately 20-30% of the cases referred for DNA testing,
the results excluded the primary suspect. Without DNA
testing, many of these individuals might have wrongfully
continued to serve sentences 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. The safety of society
requires that the guilty party be apprehended and brought
to justice."
b)The California Attorneys for Criminal Justice states, "The
importance of this bill is clear. As much as we strive for
a perfect justice system, we know that sometimes it does
not work properly and innocent people get convicted of and
are sentenced for crimes they did not commit. SB 1342
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would implement a safeguard against wrongful convictions
and provide a mechanism for wrongly convicted people to
prove their innocence and secure their release from prison.
It contains appropriate guidelines to ensure all people
and entities involved have an ample opportunity to test the
evidence and review the findings."
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
California Attorneys for Criminal Justice
Committee on Moral Concerns
Crime Victims United of California
Opposition
None on File
Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744