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COMMITTEE REPORT
April 23, 2008
S. 429
S. Printed 4/23/08--S.
Read the first time February 13, 2007.
To whom was referred a Bill (S. 429) to amend Chapter 27, Title 17, Code of Laws of South Carolina, 1976, relating to Post-Conviction Relief, by adding Article 3, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking the bill in its entirety and inserting the following:
TO AMEND TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMINAL PROCEDURES, BY ADDING ARTICLE 1, CHAPTER 28, THE "ACCESS TO JUSTICE POST-CONVICTION DNA TESTING ACT", SO AS TO PROVIDE PROCEDURES FOR POST-CONVICTION DNA TESTING, AND BY ADDING ARTICLE 3, CHAPTER 28, THE "PRESERVATION OF EVIDENCE ACT", SO AS TO PROVIDE PROCEDURES FOR PRESERVATION OF EVIDENCE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 17 of the 1976 Code is amended by adding:
Section 17-28-10. This article may be cited as the 'Access to Justice Post-Conviction DNA Testing Act'.
Section 17-28-20. For purposes of 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 an agency or political subdivision of the State including, but not limited to, a law enforcement agency, a solicitor's office, the Attorney General's Office, a county clerk of court, or a state grand jury that possesses and is responsible for the control of evidence during a criminal investigation or proceeding, or a person ordered by a court to take custody of evidence during a criminal investigation or proceeding.
(3) 'DNA' means deoxyribonucleic acid.
(4) 'Incarceration' means serving a term of confinement in the custody of the South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice and does not include a person on probation, parole, or under a community supervision program.
(5) 'Law enforcement agency' means a lawfully established federal, state, or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory, game, immigration, postal, customs, or controlled substances laws.
(6) 'Physical evidence' means an object, thing, or substance that is or is about to be produced or used or has been produced or used in a criminal proceeding related to an offense enumerated in Section 17-28-30, and that is in the possession of a custodian of evidence.
Section 17-28-30. (A) A person who pled not guilty to at least one of the following offenses, was subsequently convicted of or adjudicated delinquent for the offense, is currently incarcerated for the offense, and asserts he is innocent of the offense may apply for forensic DNA testing of his DNA and any physical evidence or biological material related to his conviction or adjudication:
(1) murder (Section 16-3-10);
(2) killing by poison (Section 16-3-30);
(3) killing by stabbing or thrusting (Section 16-3-40);
(4) voluntary manslaughter (Section 16-3-50);
(5) homicide by child abuse (Section 16-3-85(A)(1));
(6) aiding and abetting a homicide by child abuse (Section 16-3-85(A)(2));
(7) lynching in the first degree (Section 16-3-210);
(8) killing in a duel (Section 16-3-430);
(9) spousal sexual battery (Section 16-3-615);
(10) criminal sexual conduct in the first degree (Section 16-3-652);
(11) criminal sexual conduct in the second degree (Section 16-3-653);
(12) criminal sexual conduct in the third degree (Section 16-3-654);
(13) criminal sexual conduct with a minor (Section 16-3-655);
(14) arson in the first degree resulting in death (Section 16-11-110(A));
(15) burglary in the first degree for which the person is sentenced to ten years or more (Section 16-11-311(B));
(16) armed robbery for which the person is sentenced to ten years or more (Section 16-11-330(A));
(17) damaging or destroying a building, vehicle, or property by means of an explosive incendiary resulting in death (Section 16-11-540);
(18) abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F));
(19) sexual misconduct with an inmate, patient, or offender (Section 44-23-1150);
(20) unlawful removing or damaging of an airport facility or equipment resulting in death (Section 55-1-30(3));
(21) interference with traffic-control devices or railroad signs or signals resulting in death (Section 56-5-1030(B)(3);
(22) driving a motor vehicle under the influence of alcohol or drugs resulting in death (Section 56-5-2945);
(23) obstruction of railroad resulting in death (Section 58-17-4090); or
(24) accessory before the fact (Section 16-1-40) to any offense enumerated in this subsection.
(B) A person who pled guilty or nolo contendere to at least one of the offenses enumerated in subsection (A), was subsequently convicted of or adjudicated delinquent for the offense, is currently incarcerated for the offense, and asserts he is innocent of the offense may apply for forensic DNA testing of his DNA and any physical evidence or biological material related to his conviction or adjudication no later than seven years from the date of sentencing.
Section 17-28-40. (A) The application must be made on such form as prescribed by the Supreme Court.
(B) The application must be verified by the applicant and filed under the original indictment number or petition with the clerk of court of the General Sessions Court or Family Court in which the conviction or adjudication took place. Facts within the personal knowledge of the applicant and the authenticity of all documents and exhibits included in or attached to the application must be sworn to affirmatively as true and correct.
(C) The application must, under penalty of perjury:
(1) identify the proceedings in which the applicant was convicted or adjudicated;
(2) give the date of the entry of the judgment and sentence and identify the applicant's current place of incarceration;
(3) identify all previous or ongoing proceedings, together with the grounds therein asserted, taken by the applicant to secure relief from his conviction or adjudication;
(4) make a reasonable attempt to identify the physical evidence or biological material that should be tested and the specific type of DNA testing that is sought;
(5) explain why the identity of the applicant was or should have been a significant issue during the original court proceedings, notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity;
(6) explain why the physical evidence or biological material sought to be tested was not previously subjected to DNA testing, or, if the physical evidence or biological material sought to be tested was previously subjected to DNA testing, provide the results of the testing and explain how the requested DNA test would provide a substantially more probative result;
(7) explain why if the DNA testing produces exculpatory results, the testing will constitute new evidence that will probably change the result of the applicant's conviction or adjudication if a new trial is granted and is not merely cumulative or impeaching; and
(8) provide that the application is made to demonstrate innocence and not solely to delay the execution of a sentence or the administration of justice.
Section 17-28-50. (A) The clerk shall file the application upon its receipt and promptly bring it to the attention of the court and deliver for docketing a copy to the solicitor of the circuit in which the applicant was convicted or adjudicated. The Attorney General and the appropriate custodian of evidence shall be notified by the solicitor. The victim shall be notified pursuant to the provisions of Article 15, Chapter 3, Title 16.
(B) Within ninety days after the forwarding of the application, or upon any further time the court may fix, the solicitor of the circuit in which the applicant was convicted or adjudicated, or the Attorney General if the Attorney General prosecuted the case, shall respond to the application. Within ninety days after the docketing of the application, or within any further time the court may fix, the victim may respond as provided in Article 15, Chapter 3, Title 16. The court may proceed with a hearing if the solicitor or Attorney General, as applicable, or the victim does not respond to the application.
(C) At any time prior to entry of judgment the court may, when appropriate, issue orders for amendment of the application and for any documents related to the application including, but not limited to, pleadings, motions, and requests for extensions of time. In considering the application and related documents, the court shall take account of substance, regardless of defects of form. When the court is satisfied, on the basis of the application, the responses, or the motion of the solicitor or Attorney General, as applicable, that the applicant is not entitled to DNA testing and no purpose would be served by any further proceedings, it may indicate to the applicant and the solicitor or Attorney General, as applicable, its intention to summarily dismiss the application and its reasons for so doing. The victim shall be notified of the proposed dismissal pursuant to the provisions of Article 15, Chapter 3, Title 16. The court shall make specific findings of fact and expressly state its conclusions of law. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed, grant leave to file an amended application, or direct that the proceedings otherwise continue.
(D) If the applicant has filed a previous application for DNA testing, the applicant may file a successive application, provided the applicant asserts a grounds for DNA testing which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.
Section 17-28-60. If the applicant is unable to pay court costs and expenses of counsel, these costs and expenses shall be made available to the applicant in amounts and to the extent provided pursuant to Section 17-27-60. The applicant must request counsel at the time he files his application. The court must appoint counsel for an indigent applicant after the court has determined that the application is sufficient to proceed to a hearing but prior to the actual hearing. If counsel has been appointed for the applicant in an ongoing post-conviction relief proceeding, then the counsel appointed in the post-conviction relief proceeding shall also serve as counsel for purposes of this article. The performance of counsel pursuant to this article shall not form the basis for relief in any post-conviction relief proceeding.
Section 17-28-70. (A) The court shall order a custodian of evidence to preserve all physical evidence and biological material related to the applicant's conviction or adjudication pursuant to the provisions of Article 3, Chapter 28, Title 17.
(B) The custodian of evidence shall prepare an inventory of the physical evidence and biological material and issue a copy of the inventory to the applicant, the solicitor or Attorney General, as applicable, and the court.
(C) For physical evidence or biological material that the custodian of evidence asserts has been lost or destroyed, the court shall order a custodian of evidence to locate and provide the applicant and the solicitor or Attorney General, as applicable, with a copy of any document, note, log, or report relating to the physical evidence or biological material.
(D) If no physical evidence or biological material is discovered, the court may order a custodian of evidence, in collaboration with law enforcement, to search physical evidence and biological material in the custodian of evidence's possession that would reasonably be expected to produce relevant physical evidence or biological material. The order shall provide that any physical evidence and biological material subject to this search must be adequately protected by the custodian of evidence, in collaboration with law enforcement, from interference by a third party, including, but not limited to, alteration, contamination, destruction, or tampering with the physical evidence and biological material and any chain of custody related to the physical evidence and biological material.
(E) A person who willfully and maliciously destroys, alters, conceals, or tampers with physical evidence or biological material that is required to be preserved pursuant to this section with the intent to impair the integrity of the physical evidence or biological material, prevent the physical evidence or biological material from being subjected to DNA testing, or prevent the production or use of the physical evidence or biological material in an official proceeding, is subject to the provisions of Section 17-28-350.
Section 17-28-80. For any physical evidence or biological material previously subjected to DNA testing whether by the applicant or the solicitor or Attorney General, as applicable, the court shall order the production of all written reports and laboratory reports prepared in connection with the DNA testing, including the underlying data and laboratory notes.
Section 17-28-90. (A) The application must be heard in, and before a judge of, the General Sessions Court or Family Court in which the conviction or adjudication took place. A record of the proceedings must be made and preserved. All rules and statutes applicable in criminal proceedings are available to the applicant and the solicitor or Attorney General, as applicable.
(B) The court shall order DNA testing of the applicant's DNA and the physical evidence or biological material upon a finding that the applicant has established each of the following factors by a preponderance of the evidence:
(1) the physical evidence or biological material to be tested is available and is potentially in a condition that would permit the requested DNA testing;
(2) the physical evidence or biological material 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, or the testing itself may establish the integrity of the physical evidence or biological material;
(3) the physical evidence or biological material sought to be tested is material to the issue of the applicant's identity as the perpetrator of, or accomplice to, the offense notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity;
(4) the DNA results of the physical evidence or biological material sought to be tested would be material to the issue of the applicant's identity as the perpetrator of, or accomplice to, the offense notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity;
(5) if the requested DNA testing produces exculpatory results, the testing will constitute new evidence that will probably change the result of the applicant's conviction or adjudication if a new trial is granted and is not merely cumulative or impeaching;
(6) the physical evidence or biological material sought to be tested was not previously subjected to DNA testing, or, if the physical evidence or biological material sought to be tested was previously subjected to DNA testing, the requested DNA test would provide a substantially more probative result; and
(7) the application is made to demonstrate innocence and not solely to delay the execution of a sentence or the administration of justice.
(C) The court shall order that any sample taken of the applicant's DNA for purposes of DNA testing pursuant to this article or for submission to SLED pursuant to subsection (F) be taken by a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, or other appropriately trained health care worker. The applicant's counsel, if any, and the solicitor or Attorney General, as applicable, must be allowed to observe the taking of any sample.
(D) The court shall order that the applicant's DNA sample and the physical evidence or biological material be tested by SLED, a local Combined DNA Index System (CODIS) laboratory, or, prior to any testing, any other laboratory approved by SLED, in an effort to ensure that the results may be entered into the State DNA Database and Combined DNA Index System. Any other type of DNA testing ordered by the court shall be conducted in consultation with SLED or a local CODIS laboratory.
(E) The court shall order that the applicant pay the costs of the DNA testing. If the applicant is indigent, the costs of the DNA testing shall be paid by the State.
(F) The court shall order that a sample of the applicant's DNA be submitted to SLED to compare with profiles in the State DNA Database and any federal or other law enforcement DNA database in compliance with National DNA Index System (NDIS) procedures. The sample must be submitted regardless of any previous samples submitted by the applicant. If the comparison matches a DNA profile for the offense for which the applicant was convicted or adjudicated, the DNA sample may be retained in the State DNA Database. If the comparison does not match a DNA profile for the offense for which the applicant was convicted or adjudicated, but results in a match with a DNA profile for any other offense, the DNA sample may be retained in the State DNA Database. SLED shall notify the appropriate law enforcement agency. If the comparison does not match a DNA profile for any offense, the DNA sample must be destroyed. Any previous samples must be maintained by SLED subject to the State DNA Database Act. SLED shall report to the court, the applicant, and the solicitor or Attorney General, as applicable, the results of all DNA database comparisons. The victim shall be notified of the results of all DNA database comparisons pursuant to Article 15, Chapter 3, Title 16.
(G) The applicant and the solicitor or Attorney General, as applicable, shall have the right to appeal a final order denying or granting DNA testing by a writ of certiorari to the Court of Appeals or the Supreme Court as provided by the South Carolina Appellate Court Rules.
Section 17-28-100. (A) The results of the DNA test must be fully disclosed to the court, the applicant, and the solicitor or Attorney General, as applicable. The victim shall be notified of the results of the DNA test pursuant to Article 15, Chapter 3, Title 16. The court shall order the production of any written reports and laboratory reports prepared in connection with the DNA testing, including underlying data and notes.
(B) The results of the DNA test may be used by the applicant, solicitor, or Attorney General in any post-conviction proceeding or trial. If the results of the DNA test are exculpatory, the applicant may use the exculpatory results of the DNA test as grounds for filing a motion for new trial pursuant to the South Carolina Rules of Criminal Procedure. If the results of the DNA test are inconclusive, the court may allow for additional DNA testing or may dismiss the application. If the results of the DNA test are inculpatory, the court shall dismiss the application and shall, on motion of the solicitor or Attorney General, as applicable:
(1) make a determination whether the applicant's assertion of actual innocence was intentionally false, and, as a result, hold the applicant in contempt of court;
(2) assess against the applicant the cost of any DNA testing not already paid by the applicant;
(3) forward the findings to the South Carolina Department of Corrections, who may use such finding to deny good conduct credit; and
(4) forward the findings to the Department of Probation, Parole and Pardon Services, who may use the findings to deny parole.
(C) Except as otherwise provided in this article, DNA samples, results, and information taken from the applicant are exempt from any law requiring disclosure of information to the public.
Section 17-28-110. (A) Nothing in this article prohibits a person and a solicitor or the Attorney General, as applicable, from consenting to and conducting post-conviction DNA testing by agreement of the parties. The person may use the exculpatory results of the DNA test as the grounds for filing a motion for new trial pursuant to the South Carolina Rules of Criminal Procedure.
(B) Nothing in this article prohibits a person from filing an application for post-conviction relief pursuant to Chapter 27, Title 17.
(C) Nothing in this article shall be construed to give rise to a claim for damages against the State of South Carolina, a political subdivision of the State, or an employee of the State or a political subdivision of the State. Failure of a custodian of evidence to preserve physical evidence or biological material pursuant to this article does not entitle the applicant to any relief from conviction or adjudication but does not prohibit a person from presenting such information at a subsequent hearing or trial."
SECTION 2. Title 17 of the 1976 Code is amended by adding:
Section 17-28-300. This article shall be cited as the 'Preservation of Evidence Act'.
Section 17-28-310. For purposes of 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 an agency or political subdivision of the State including, but not limited to, a law enforcement agency, a solicitor's office, the Attorney General's Office, a county clerk of court, or a state grand jury that possesses and is responsible for the control of evidence during a criminal investigation or proceeding, or a person ordered by a court to take custody of evidence during a criminal investigation or proceeeding.
(3) 'DNA' means deoxyribonucleic acid.
(4) 'Incarceration' means serving a term of confinement in the custody of the South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice and does not include a person on probation, parole, or under a community supervision program.
(5) 'Law enforcement agency' means a lawfully established federal, state, or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory, game, immigration, postal, customs, or controlled substances laws.
(6) 'Physical evidence' means an object, thing, or substance that is or is about to be produced or used or has been produced or used in a criminal proceeding related to an offense enumerated in Section 17-28-320, and that is in the possession of a custodian of evidence.
Section 17-28-320. (A) A custodian of evidence must preserve all physical evidence and biological material related to the conviction or adjudication of a person for at least one of the following offenses:
(1) murder (Section 16-3-10);
(2) killing by poison (Section 16-3-30);
(3) killing by stabbing or thrusting (Section 16-3-40);
(4) voluntary manslaughter (Section 16-3-50);
(5) homicide by child abuse (Section 16-3-85(A)(1));
(6) aiding and abetting a homicide by child abuse (Section 16-3-85(A)(2));
(7) lynching in the first degree (Section 16-3-210);
(8) killing in a duel (Section 16-3-430);
(9) spousal sexual battery (Section 16-3-615);
(10) criminal sexual conduct in the first degree (Section 16-3-652);
(11) criminal sexual conduct in the second degree (Section 16-3-653);
(12) criminal sexual conduct in the third degree (Section 16-3-654);
(13) criminal sexual conduct with a minor (Section 16-3-655);
(14) arson in the first degree resulting in death (Section 16-11-110(A));
(15) burglary in the first degree for which the person is sentenced to ten years or more (Section 16-11-311(B));
(16) armed robbery for which the person is sentenced to ten years or more (Section 16-11-330(A));
(17) damaging or destroying a building, vehicle, or property by means of an explosive incendiary resulting in death (Section 16-11-540);
(18) abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F));
(19) sexual misconduct with an inmate, patient, or offender (Section 44-23-1150);
(20) unlawful removing or damaging of an airport facility or equipment resulting in death (Section 55-1-30(3));
(21) interference with traffic-control devices or railroad signs or signals resulting in death (Section 56-5-1030(B)(3);
(22) driving a motor vehicle under the influence of alcohol or drugs resulting in death (Section 56-5-2945);
(23) obstruction of railroad resulting in death (Section 58-17-4090); or
(24) accessory before the fact (Section 16-1-40) to any offense enumerated in this subsection.
(B) The physical evidence and biological material must be preserved:
(1) subject to a chain of custody as required by South Carolina law;
(2) with sufficient documentation to locate the physical evidence and biological material; and
(3) under conditions reasonably designed to preserve the forensic value of the physical evidence and biological material.
(C) The physical evidence and biological material must be preserved until the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in subsection (A). However, if the person is convicted or adjudicated on a guilty or nolo contendere plea for the offense enumerated in subsection (A), the physical evidence and biological material must be preserved for seven years from the date of sentencing, or until the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in subsection (A), whichever comes first.
Section 17-28-330. (A) After a person is convicted or adjudicated for at least one of the offenses enumerated in Section 17-28-320, a custodian of evidence shall register with the South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice, as applicable, as a custodian of evidence for physical evidence or biological material related to the person's conviction or adjudication.
(B) The South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice, as applicable, shall notify a custodian of evidence registered pursuant to subsection (A) if the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in Section 17-28-320.
Section 17-28-340. (A) After a person is convicted or adjudicated for at least one of the offenses enumerated in Section 17-28-320, a custodian of evidence may petition the General Sessions Court or Family Court in which the person was convicted or adjudicated for an order allowing for disposition of the physical evidence or biological material prior to the period of time described in Section 17-28-320 if:
(1) the physical evidence or biological material must be returned to its rightful owner, is of such size, bulk, or physical character as to make retention impracticable, or is otherwise required to be disposed of by law; or
(2) DNA evidence was previously introduced at trial, was found to be inculpatory, and all appeals and post-conviction procedures have been exhausted.
(B) The petition must:
(1) be made on such form as prescribed by the Supreme Court;
(2) identify the proceedings in which the person was convicted or adjudicated;
(3) give the date of the entry of the judgment and sentence;
(4) specifically set forth the physical evidence or biological material to be disposed of; and
(5) specifically set forth the reason for the disposition.
(C) The clerk of court shall file the petition upon its receipt and promptly bring it to the attention of the court and deliver a copy to the convicted or adjudicated person and the solicitor or Attorney General, as applicable. The victim shall be notified of the petition pursuant to Article 15, Chapter 3, Title 16.
(D) The convicted or adjudicated person and the solicitor or Attorney General, as applicable, shall have one hundred and eighty days to respond to the petition. The victim may respond within one hundred and eighty days in accordance with the provisions of Article 15, Chapter 3, Title 16.
(E) After a hearing, the court may order that the custodian of evidence may dispose of the physical evidence or biological material if the court determines by preponderance of evidence that:
(1) the physical evidence or biological material must be returned to its rightful owner, is of such size, bulk, or physical character as to make retention impracticable, or is otherwise required to be disposed of by law, or DNA evidence was previously introduced at trial, was found to be inculpatory, and all appeals and post-conviction procedures have been exhausted;
(2) the convicted or adjudicated person, the solicitor or Attorney General, as applicable, and the victim have been notified of the petition for an order to dispose of the physical evidence or biological material;
(3) the convicted or adjudicated person did not file an affidavit declaring, under penalty of perjury, the person's intent to file an application for post-conviction DNA testing of the physical evidence or biological material pursuant to Article 1, Chapter 28, Title 17 within ninety days followed by the actual filing of the application;
(4) the solicitor or the Attorney General, as applicable, and the victim have not filed a response requesting that the physical evidence or biological material not be disposed of; and
(5) no other provision of federal or state law, regulation, or court rule requires preservation of the physical evidence or biological material.
(F) If the court issues an order for the disposition of the physical evidence or biological material, the court may require a custodian of evidence to take reasonable measures to remove and preserve portions of the physical evidence or biological material in a quantity sufficient to:
(1) permit future DNA testing or other scientific analysis; or
(2) for other reasons, upon request and good cause shown, by the solicitor or Attorney General, as applicable, or the victim.
Section 17-28-350. A person who willfully and maliciously destroys, alters, conceals, or tampers with physical evidence or biological material that is required to be preserved pursuant to this article with the intent to impair the integrity of the physical evidence or biological material, prevent the physical evidence or biological material from being subjected to DNA testing, or prevent the production or use of the physical evidence or biological material in an official proceeding, is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars for a first offense, and not more than five thousand dollars or imprisoned for not more than one year, or both, for each subsequent violation.
Section 17-28-360. Nothing in this article shall be construed to give rise to a claim for damages against the State of South Carolina, a political subdivision of the State, an employee of the State, or a political subdivision of the State. Failure of a custodian of evidence to preserve physical evidence or biological material pursuant to this article does not entitle a person to any relief from conviction or adjudication but does not prohibit a person from presenting such information at a subsequent hearing or trial."
SECTION 3. The repeal or amendment by the provisions of this act or any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 4. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 5. The provisions of Section 17-28-350 become effective upon the signature of the Governor. All other provisions become effective January 1, 2009. The enactment of these provisions prior to the effective date indicates the intent of the General Assembly that statewide laws or practices shall exist to ensure additional procedures for post-conviction DNA testing, and proper preservation of biological evidence connected to murder, rape, and non-negligent homicide in order that application for available federal funds shall be made by the appropriate agencies and considered by the appropriate federal agencies prior to the effective date. /
Renumber sections to conform.
Amend title to conform.
GERALD MALLOY for Committee.
EXPLANATION OF IMPACT:
Judicial Department
The department indicates enactment of this bill will have an impact on state general fund expenditures due to the ability of a convicted person to apply to the Circuit Court for additional DNA testing. However, the department is unable to provide a reliable impact to the agency. Should the number of cases exceed what the existing circuit court judges can absorb, delays in the circuit court docket can be expected and additional judges would be needed.
The cost associated with the addition of one (1) new Circuit Court Judge and staff (administrative assistant, court reporter and law clerk) is approximately $347,327 for personal services and associated operating expenses and $20,510 of non-recurring cost for automation and furniture. The addition of a new judge would also require more courtroom space, an expense borne by county government
State Law Enforcement Division - SLED
Based on 1,200 cases per year, SLED estimates for the first year there will be a total cost to the General Fund of the State of $784,800. Of this amount, $227,200 represents the salaries and employer contributions for four new positions and $57,600 for related operating costs and consumable supplies. The remaining cost of $500,000 represents a one-time cost for new analytical instruments and equipment.
Commission on Indigent Defense
The commission indicates that it currently spends approximately $650,000 annually on Post Conviction Relief (PCR) efforts. PCR expenses are paid from other funds revenue. The Commission anticipates PCR requests may double upon enactment. Therefore, the agency expects other funds expenditures could increase by $650,000 annually.
Prosecution Coordination Commission
The commission indicates the Bill will have an impact on the state general fund expenditures. However, the agency indicates it does not have sufficient data upon which to base an estimate. Court rulings as yet to be made under the bill's provisons would be a major factor in determining the cost to the agency.
Department of Public Safety
The department indicates this bill will have a minimal impact on expenditures associated with additional storage space requirements for "DNA" type evidence. However, the agency anticipates such costs can be absorbed within existing resources.
Attorney General's Office
The office reports this bill will have no impact on the General Fund of the State or on federal and/or other funds.
Recapitulation
Total minimum first year cost to the General Fund of the State is estimated at $784,800, which excludes potential cost to the Judicial Department and the Prosecution Coordination Commission. Thereafter, there will be a minimum annual cost of $284,800 with four positions. Other funds expenditures for the Commission on Indigent Defense are expected to increase by as much as $650,000 annually.
LOCAL GOVERNMENT IMPACT:
Two of the three local governments indicated this bill would have no impact on expenditures. One indicated it would need additional staff at a cost of $25,000 to $30,000.
Approved By:
Harry Bell
Office of State Budget
TO AMEND CHAPTER 27, TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO POST-CONVICTION RELIEF, BY ADDING ARTICLE 3, 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, IF APPLICABLE.
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 of 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:
(A) '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.
(B) 'Custodian of evidence' means a county clerk of court, a state grand jury, or any state or county employee who possesses and is responsible for the control of evidence possession introduced in a General Sessions trial.
(C) 'DNA' means Deoxyribonucleic acid.
(D) 'Law enforcement agency' means any 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 any other provision of law governing post-conviction relief, a person convicted of a criminal offense may, at any time after conviction or adjudication, apply to the court in the county where the conviction was issued for forensic DNA testing of any biological material. Persons eligible for application to the court shall 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 shall, under penalty of perjury:
(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 such steps as are necessary to ensure that any remaining biological material obtained in connection with the case or investigation is preserved pending the completion of proceedings under 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 must provide notification to the victim in writing or by telephone when:
(1) the applicant first files an application for DNA testing and analysis under this chapter; and
(2) the solicitor knows the name and address of the victim.
Section 17-27-330. (A) 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 under this article, after a response has been filed by the State and a hearing has been held, and upon a finding that the applicant has established each of the following factors by a preponderance of the evidence:
(A) 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;
(B) 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, 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 shall be 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 has been tampered, altered, or replaced;
(C) 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;
(D) 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;
(E) 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;
(F) 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;
(G) 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
(H) 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 shall 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 shall 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 shall not be 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 may, in its discretion, 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 has been 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 any 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 under 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 shall 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 under this article, the court shall order the production of any laboratory report prepared in connection with the DNA testing. The court may, in its discretion, also 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) of this section, any 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. Such evidence shall 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) shall 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 such evidence if:
(1) the law enforcement agency or custodian of evidence:
(a) notifies any person who remains incarcerated in connection with the investigation or prosecution and any 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 such notification to make an application under 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 such 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 shall be construed to give rise to a claim for damages against the State of South Carolina, any employee of the State, any court official, any officer of the court, any law enforcement agency, or any 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 shall be 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 under this article in one calendar year shall not exceed five thousand dollars.
(C) Notwithstanding subsection (A), if a person willfully or maliciously destroys, alters, conceals, or tampers with evidence that is required to be preserved under 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 shall 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 shall have the right to appeal a decision denying post-conviction DNA testing pursuant to Section 17-27-100.
Section 17-27-430. Successive applications under this article shall be treated in accordance with Section 17-27-90.
Section 17-27-440. (A) A court may, in its discretion, make other orders as may be 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 any person pursuant to an application for post-conviction DNA testing shall be exempt from any law 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 any order in accordance with Section 17-27-80.
Section 17-27-460. (A) A convicted person and the solicitor shall not be prohibited from consenting to and conducting post-conviction DNA testing by agreement of the parties, without filing an application for post-conviction DNA testing under this article.
(B) Notwithstanding any other provision governing post-conviction relief, if DNA test results are obtained under testing conducted upon consent of the parties and that 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 becomes effective upon approval by the Governor, except that the provisions of Article 3, Chapter 27, Title 17 become effective on January 1, 2008.
This web page was last updated on Monday, June 22, 2009 at 2:50 P.M.