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H. 5072
STATUS INFORMATION
General Bill
Sponsors: Rep. Funderburk
Document Path: l:\council\bills\ms\7620ahb08.doc
Introduced in the House on April 22, 2008
Currently residing in the House Committee on Judiciary
Summary: Post-Conviction DNA Procedures Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 4/22/2008 House Introduced and read first time HJ-166 4/22/2008 House Referred to Committee on Judiciary HJ-166
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 3 TO CHAPTER 27, TITLE 17 SO AS TO ENACT THE "POST-CONVICTION DNA PROCEDURES ACT", TO PROVIDE PROCEDURES FOR DNA TESTING FOR PERSONS CONVICTED OF CRIMINAL OFFENSES FOR THE PURPOSE OF ESTABLISHING THE IDENTITY OF THE PERPETRATOR, AND TO ALLOW POST-CONVICTION PROCEEDINGS UNDER CERTAIN CIRCUMSTANCES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Sections 17-27-10 through 17-27-160 are designated as Article 1, Chapter 27, Title 17.
SECTION 2. Chapter 27, Title 17 of the 1976 Code is amended by adding:
Section 17-27-300. This article may be cited as the 'Post-Conviction DNA Procedures Act'.
Section 17-27-310. As contained in this article:
(1) 'Biological material' means any blood, tissue, hair, saliva, bone, or semen from which DNA marker groupings may be obtained. This includes material catalogued separately on slides, swabs, or test tubes or present on other evidence including, but not limited to, clothing, ligatures, bedding, other household material, drinking cups, or cigarettes.
(2) 'Custodian of evidence' means a county clerk of court, a state grand jury, or a state or county employee who possesses and is responsible for the control of evidence possession introduced in a general sessions court trial.
(3) 'DNA' means deoxyribonucleic acid.
(4) 'Law enforcement agency' means a law enforcement agency of a municipality, county, state, or other political subdivision, its employees, agents, or anyone else acting on its behalf.
Section 17-27-320. (A) Notwithstanding another provision of law governing post-conviction relief, a person convicted of a criminal offense, at any time after conviction or adjudication, may apply to the court in the county where the conviction was issued for forensic DNA testing of biological material. Persons eligible for application to the court include persons:
(1) currently in custody, on probation, or on parole;
(2) convicted on pleas of not guilty, guilty, or nolo contendere;
(3) who have completed serving the sentence imposed for the conviction of the criminal offense.
(B) The application, under penalty of perjury, shall:
(1) explain why the identity of the applicant was or should have been a significant issue during the court proceedings;
(2) explain why the requested DNA testing will exonerate the applicant and demonstrate his innocence by proving that the applicant was misidentified as the perpetrator of, or accomplice to, the crime for which the applicant was convicted;
(3) make a reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing that is sought; and
(4) explain why the evidence sought to be tested by the applicant was not previously subjected to DNA testing, or explain how the evidence can be subjected to retesting with different DNA techniques that provide a reasonable probability of reliable and probative results.
(C) The applicant shall serve a copy of the petition upon the office of the solicitor who prosecuted the case. Upon receipt of an application served pursuant to this section, the solicitor shall take steps as necessary to ensure that remaining biological material obtained in connection with the case or investigation is preserved pending the completion of proceedings pursuant to this article. The office of the solicitor shall file its response to the application within ninety days of receipt of service unless the court has dismissed the application.
(D) The office of the solicitor shall provide notification to the victim in writing or by telephone when the:
(1) applicant first files an application for DNA testing and analysis pursuant to this article; and
(2) solicitor knows the name and address of the victim.
Section 17-27-330. The clerk of the court for the county in which the conviction took place shall docket the application upon its receipt and promptly bring it to the attention of the court and deliver a copy to the solicitor of the circuit in which the applicant was convicted and a copy to the Attorney General.
Section 17-27-340. The court may order DNA testing pursuant to an application made pursuant to this article, after a response is filed by the State and a hearing is held, and upon a finding that the applicant has established each of the following factors by a preponderance of the evidence:
(1) the evidence to be tested was secured in relation to the investigation or prosecution that resulted in the applicant's conviction or sentence, and is available and in a condition that would permit the DNA testing that is requested in the motion;
(2) the evidence to be tested was subject to a chain of custody sufficient to establish it was not substituted, tampered with, replaced, or altered in any material aspect, or the testing itself may establish the integrity of the evidence. For the purposes of this article, evidence in the possession of law enforcement of the State or any political subdivision, or a public or private hospital is presumed to satisfy the chain of custody requirement unless specific evidence demonstrates by a preponderance of the evidence that the biological material to be tested was tampered with, altered, or replaced;
(3) the evidence sought to be tested is material to the issue of the applicant's identity as the perpetrator of, or accomplice to, the crime;
(4) DNA results of the evidence sought to be tested would be material to the issue of the applicant's identity as the perpetrator of, or accomplice to, the crime that resulted in his conviction or sentence;
(5) if the requested DNA testing produces exculpatory results, the testing will constitute new, noncumulative material evidence that will exonerate the applicant by establishing that he was misidentified as the perpetrator or accomplice to the crime;
(6) the evidence sought to be tested was not previously tested using DNA technology or the technology requested was not available at the time of trial;
(7) if DNA or other forensic testing previously was done in connection with the case, the requested DNA test would provide results that are significantly more discriminating and probative on a material issue of identity and would have a reasonable probability of contradicting prior test results; and
(8) the application is not made for the purposes of delay.
Section 17-27-350. If the court orders testing pursuant to this article, the court shall determine the method of testing and responsibility for the cost of testing, if necessary, and may require the applicant to pay the costs of the testing if the court determines that the applicant has the ability to pay. If the applicant is indigent, then the cost must be paid by the State.
Section 17-27-360. (A) If the court orders testing pursuant to this article, the court shall order that the evidence be tested by the State Law Enforcement Division, or by a laboratory that meets the quality assurance and proficiency testing standards applicable to laboratories conducting forensic DNA analysis pursuant to Article 9, Chapter 3, Title 23.
(B) The generated DNA profile must be compared with profiles in the State DNA Database and any federal or other law enforcement DNA database. The State Law Enforcement Division laboratory shall report to the court the results of all DNA database comparisons.
(C) The court shall order that a sample of the applicant's DNA be submitted to the State Law Enforcement Division and that the DNA analysis be stored and maintained by the division in the State DNA Database.
(D) The results of any test ordered pursuant to this article shall be fully disclosed to the applicant, the solicitor, and the Attorney General.
(E)(1) The court may appoint counsel for an indigent applicant at any time during proceedings pursuant to this article in a manner consistent with Section 17-27-60.
(2) If the applicant has filed pro se, the court shall appoint counsel for the applicant upon a showing that the DNA testing may be material to the applicant's claim of wrongful identification and conviction.
(3) The court, in its discretion, may refer pro se requests for DNA testing to qualified parties for further review without appointing the parties as counsel at that time. These qualified parties may include, but are not limited to, indigent defense organizations or clinical legal education programs.
(4) If the applicant has retained private pro bono counsel that may include counsel from a nonprofit organization that represents indigent persons, the court, in its discretion, may award reasonable attorney's fees and costs at the conclusion of the litigation to be paid from the indigent defense fund at the rate paid for post-conviction actions.
Section 17-27-370. (A) If an application is filed pursuant to this article, the court shall order the solicitor, a law enforcement agency, or a custodian of evidence to preserve during the pendency of the proceeding all evidence that contains biological material including, but not limited to, stains, fluids, or hair samples in the state's possession or control.
(B) For biological material that the solicitor, a law enforcement agency, or a custodian of evidence asserts was lost or destroyed, the court shall order the solicitor, law enforcement agency, or custodian of evidence to locate and provide the applicant with any document, note, log, or report relating to items of physical evidence or the biological material collected in connection with the case.
(C) For evidence previously subjected to DNA testing, the court shall order the production of laboratory reports prepared in connection with the DNA testing and the underlying data and laboratory notes.
Section 17-27-380. Notwithstanding another provision of law or rule of procedure that bars an application for post-conviction review as untimely, an applicant may use the results of a DNA test ordered pursuant to this article as the grounds for filing a motion for post-conviction review pursuant to Article 1, Chapter 27, Title 17 and the South Carolina Rules of Criminal Procedure.
Section 17-27-390. (A) If the prosecution or the applicant previously conducted a DNA or other biological material testing without knowledge of the other party, this testing must be revealed in the application for testing or in the response.
(B) If the court orders new post-conviction DNA testing in connection with a proceeding brought pursuant to this article, the court shall order the production of any laboratory report prepared in connection with the DNA testing. The court, in its discretion, also may order production of the underlying data, bench notes, or other laboratory notes.
(C) Upon receipt of a motion by the applicant, the solicitor, law enforcement agency, or custodian of evidence shall prepare an inventory of the evidence related to the case and issue a copy of the inventory to the prosecution, the applicant, and the court.
Section 17-27-400. (A) A law enforcement agency or custodian of evidence shall preserve, in accordance with subsections (B) and (C), physical evidence in its possession or control that is reasonably likely to contain forensic evidence including, but not limited to, fingerprints, palm prints, tooth marks, footprints, shoe or tire imprints, surveillance video or photographs, or biological material secured in relation to investigation or prosecution for a felony offense. This evidence must be kept:
(1) subject to a continuous chain of custody;
(2) with sufficient documentation to locate that evidence and demonstrate that the chain of custody was continuous; and
(3) under conditions reasonably designed to preserve the forensic value of the evidence.
(B) For a felony offense punishable by death or incarceration in excess of one year, evidence described in subsection (A) must be retained for one year after the convicted person is executed or released from incarceration unless the terms of subsection (C) are satisfied.
(C) After a judgment is entered, the law enforcement agency required to retain evidence described in subsection (A) may dispose of this evidence if:
(1) the law enforcement agency or custodian of evidence:
(a) notifies a person who remains incarcerated in connection with the investigation or prosecution and counsel of record for the person of the intention of the law enforcement agency to dispose of the evidence and the provisions of Article 3, Chapter 27, Title 17; and
(b) affords the person not less than one calendar year after this notification to make an application pursuant to this article for DNA testing of the evidence or other application for scientific analysis; or
(2) the evidence must be returned to its rightful owner or is of a size, bulk, or physical character as to make retention impracticable, and the law enforcement agency takes reasonable measures to remove and preserve portions of the physical evidence sufficient to permit future DNA testing or other scientific analysis.
Section 17-27-410. (A) Nothing in this article may be construed to give rise to a claim for damages against the State of South Carolina, any employee of the State, court official, officer of the court, law enforcement agency, or an employee of a law enforcement agency.
(B) Notwithstanding subsection (A), a person who knowingly violates a provision of this section or a regulation promulgated pursuant to this article is liable to the State for a civil penalty of not more than five hundred dollars for a first offense and a civil penalty of not more than one thousand dollars for each subsequent violation. The total amount of fines imposed on a person for all violations pursuant to this article in one calendar year may not exceed five thousand dollars.
(C) Notwithstanding subsection (A), if a person wilfully or maliciously destroys, alters, conceals, or tampers with evidence that is required to be preserved pursuant to Section 17-27-350 with the intent to impair the integrity of the evidence, prevent the evidence from being subjected to DNA testing, or prevent the production or use of the evidence in an official proceeding, he commits a misdemeanor and must be fined in an amount not to exceed more than one thousand dollars for the first offense, and not more than five thousand dollars for each subsequent violation, or imprisoned for not more than one year, or both.
Section 17-27-420. The applicant has the right to appeal a decision denying post-conviction DNA testing pursuant to Section 17-27-100.
Section 17-27-430. Successive applications pursuant to this article must be treated in accordance with Section 17-27-90.
Section 17-27-440. (A) A court, in its discretion, may make other orders as appropriate. This includes, but is not limited to, designating:
(1) the type of DNA analysis to be used;
(2) the testing procedures to be followed;
(3) the preservation of some portion of the sample for testing replication;
(4) additional DNA testing if the results of the initial testing are inconclusive or otherwise merit additional scientific analysis; or
(5) the collection and DNA testing of elimination samples from third parties.
(B) DNA profile information from biological material taken from a person pursuant to an application for post-conviction DNA testing are exempt from laws requiring disclosure of information to the public.
Section 17-27-450. Based on the results of the DNA testing ordered and any evidence or other matter presented at the hearing, the court shall enter an order in accordance with Section 17-27-80.
Section 17-27-460. (A) A convicted person and the solicitor are not prohibited from consenting to and conducting post-conviction DNA testing by agreement of the parties, without filing an application for post-conviction DNA testing pursuant to this article.
(B) Notwithstanding another provision of law governing post-conviction relief, if DNA test results are obtained under testing conducted upon consent of the parties and the results are favorable to the convicted person, the convicted person may apply for, and the court may adjudicate, an application for post-conviction relief based on the DNA test results."
SECTION 3. This act takes effect upon approval by the Governor.
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