BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1342|
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UNFINISHED BUSINESS
Bill No: SB 1342
Author: Burton (D), et al
Amended: 8/28/00
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-0, 4/11/00
AYES: Vasconcellos, Burton, McPherson, Polanco, Rainey
NOT VOTING: Johnston
SENATE APPROPRIATIONS COMMITTEE : 13-0, 5/25/00
AYES: Johnston, Alpert, Bowen, Burton, Escutia, Johnson,
Karnette, Kelley, Leslie, McPherson, Mountjoy, Perata,
Vasconcellos
SENATE FLOOR : 40-0, 5/31/00
AYES: Alarcon, Alpert, Bowen, Brulte, Burton, Chesbro,
Costa, Dunn, Escutia, Figueroa, Hayden, Haynes, Hughes,
Johannessen, Johnson, Johnston, Karnette, Kelley, Knight,
Leslie, Lewis, McPherson, Monteith, Morrow, Mountjoy,
Murray, O'Connell, Ortiz, Peace, Perata, Polanco,
Poochigian, Rainey, Schiff, Sher, Solis, Soto, Speier,
Vasconcellos, Wright
ASSEMBLY FLOOR : Not available
SUBJECT : Forensic testing: post conviction
SOURCE : Author
DIGEST : This bill creates a procedure for the
post-conviction testing of DNA evidence for defendants who
CONTINUED
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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.
Assembly Amendments recast the bill. The intent of the
bill is the same as it left the Senate.
ANALYSIS : Existing law authorizes the defendant in a
criminal case to file a motion for a new trial upon
specified grounds including, but not limited to, the
discovery of new evidence that is material to the
defendant, and which could not, with reasonable diligence,
have been discovered and produced at the trial.
The bill grants to a defendant who was convicted of a
felony and currently serving a term of imprisonment, the
right to make a written motion under specified conditions
for the performance of forensic DNA testing. This bill
requires that the motion include an explanation of why the
applicant's identity was or should have been a significant
issue in the case, how the requested DNA testing would
raise a reasonable probability that the verdict or sentence
would have been more favorable if the DNA testing had been
available at the trial resulting in the judgment of
conviction, and a reasonable attempt to identify the
evidence to be tested and the type of DNA testing sought.
The motion is also to include the results of any previous
DNA tests and the court will be required to order the party
in possession of those results to provide access to the
reports, data and notes prepared in connection with the DNA
tests to all parties. The bill also provides that the cost
of DNA testing ordered under this act will borne by either
the state or by the applicant if, in the interests of
justice the applicant is not indigent and possesses the
ability to pay.
The court will be required to appoint counsel for the
convicted person who brings a motion under this section if
that person is indigent.
The bill also requires, except as otherwise specified, 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
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connection with that case.
Background
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)
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
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)
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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.
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
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.
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
Fiscal Impact (in thousands)
Major Provisions 2000-01 2001-02
2002-03 Fund
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DNA testing Unknown costs, probably in
excess of General
$150 annually and
potentially significant
Courts Unknown costs, probably
not substantial General
Appointed counsel Unknown costs, potentially
reimbursable Local
Storage of evidence Unknown increased mandated,
potentially Local
reimbursable costs
SUPPORT : (Verified 8/30/00)
American Federation of State, County and Municipal
Employees
American Civil Liberties Union
Attorney General
California Attorneys for Criminal Justice
California District Attorneys Association
California Judges Association
California State Sheriffs Association
Crime Victims United of California
Committee on Moral Concerns
Judicial Council
Los Angeles County District Attorney
Santa Clara County Board of Supervisors
ARGUMENTS IN SUPPORT : According to the author's office:
"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
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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 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
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cases was probably less than $20,000, based on the
average cost of a test."
RJG:cm 8/30/00 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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