Sets forth requirements regarding: (1) the substance of the motion (including an assertion of innocence of the crime if exoneration would result in a mandatory sentence reduction) and the timing of its filing (within 60 months); (2) notice to the Government, the preservation order, and appointment of counsel; (3) the order for DNA testing; (4) testing and result reporting procedures; (5) post-testing procedures where test results are inconclusive, positive, or negative or produce exculpatory evidence; and (6) finality of an order granting or denying DNA testing or a new trial.
Prohibits the Government from destroying any biological material preserved if the defendant is serving a term of imprisonment following conviction in a case until the later of: (1) 60 months after enactment of this Act; or (2) the date DNA testing proceedings are completed.
Directs the Attorney General to establish a system for reporting and tracking motions under this Act. Prohibits a State from denying an application for DNA testing made by a prisoner in State custody who would be eligible for such testing under Federal provisions pursuant to this Act. Authorizes a prisoner in State custody to enforce such provision in a civil action for declaratory or injunctive relief.
[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2441 Introduced in Senate (IS)]
107th CONGRESS
2d Session
S. 2441
To provide all prisoners with an opportunity to present exculpatory DNA
evidence, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 2, 2002
Mr. Specter introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide all prisoners with an opportunity to present exculpatory DNA
evidence, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
(a) Short Title.--This Act may be cited as the ``Post-Conviction
DNA Testing Act of 2002''.
SEC. 2. POST-CONVICTION DNA TESTING.
(a) Federal Criminal Procedure.--
(1) In general.--Part II of title 18, United States Code,
is amended by inserting after chapter 228 the following:
``CHAPTER 228A--POST-CONVICTION DNA TESTING
``Sec.
``3600. DNA testing.
``3600A. Prohibition on destruction of biological evidence.
``Sec. 3600. DNA testing
``(a) Motion.--
``(1) In general.--An individual imprisoned because of a
conviction of a criminal offense in a court of the United
States (referred to in this section as the `applicant') may
make a written motion to the court that entered the judgment of
conviction for the performance of forensic DNA testing on
specified evidence that was secured in relation to the
investigation or prosecution that resulted in the conviction.
``(2) Contents.--The motion shall--
``(A) include an assertion by the applicant, under
penalty of perjury, that the applicant is actually
innocent of the crime for which the applicant is
imprisoned or of uncharged conduct, if the exoneration
of the applicant of such conduct would result in a
mandatory reduction in the sentence of the applicant;
``(B) identify the specific evidence secured in
relation to the investigation or prosecution that
resulted in the conviction for which testing is
requested;
``(C) identify a theory of defense--
``(i) the validity of which would establish
the actual innocence of the applicant, and
explain how the requested DNA testing would
substantiate that theory; and
``(ii) that is not inconsistent with any
affirmative defense issued by the applicant in
the original prosecution;
``(D) make a prima facie showing that the
conditions set forth in subsection (c) for issuance of
a testing order are satisfied; and
``(E) certify that the applicant will provide a DNA
sample from the applicant for purposes of comparison.
``(3) Filing.--A motion filed under this section is timely
if--
``(A) it is filed within 60 months of the date of
enactment of this section;
``(B) the applicant can show that--
``(i) the evidence identified pursuant to
paragraph (2)(B) is newly discovered; and
``(ii)(I) such evidence could not have been
discovered through the exercise of due
diligence; or
``(II) the proximate cause for not having
previously discovered such evidence was the
deficient performance of the attorney of the
applicant; or
``(C) the applicant can show that--
``(i)(I) the technology for the requested
DNA testing was not available at the time of
trial;
``(II) it was not generally known that such
technology was available at the time of trial;
or
``(III) the failure to request such testing
using the technology was due to the deficient
performance of the attorney of the applicant;
and
``(ii) if any of the evidence was
previously subjected to DNA testing, the
testing now requested uses a newer technology
for DNA testing that is reasonably certain to
provide results that are substantially more
accurate and probative than any previous DNA
testing of the evidence.
``(b) Notice to the Government; Preservation Order; Appointment of
Counsel.--
``(1) Notice to the government.--Upon receipt of a motion
under subsection (a), the court shall promptly notify the
government of the motion and afford the government an
opportunity to respond to the motion.
``(2) Preservation order.--The court may direct the
government to preserve any evidence to which a motion under
subsection (a) relates to the extent necessary to carry out
proceedings under this section.
``(3) Appointment of counsel.--The court may appoint
counsel for an indigent applicant under this section in
accordance with section 3006A of this title.
``(c) Order for DNA Testing.--The court shall order the DNA testing
requested in a motion filed under this section if--
``(1) the motion satisfies the requirements of subsection
(a);
``(2)(A) the identity of the perpetrator was at issue in
the trial that resulted in the conviction of the applicant; or
``(B) in a case where the applicant pled guilty, the
identity of the perpetrator would have been at issue at trial;
``(3) the evidence to be tested is in the possession of the
government and has been subject to a chain of custody and
retained under conditions sufficient to ensure that it has not
been substituted, contaminated, tampered with, replaced, or
altered in any respect material to the requested DNA testing;
``(4)(A)(i) the technology for the requested DNA testing
was not available at the time of trial;
``(ii) it was not generally known that such technology was
available; or
``(iii) the applicant can show that the failure to request
such testing was due to the deficient performance of the
attorney of the applicant; and
``(B) if any of the evidence was previously subjected to
DNA testing, the testing now requested uses a newer DNA testing
technique which is reasonably certain to provide results that
are substantially more accurate and probative than any previous
DNA testing of the evidence;
``(5) the proposed DNA testing uses scientifically sound
methods and is consistent with accepted forensic practice;
``(6) the proposed DNA testing is reasonable in scope; and
``(7) the court determines, after review of the record of
the trial of the applicant and any other relevant evidence,
that there is a reasonable probability that the results of the
proposed DNA testing will enable the applicant to establish
that the applicant is entitled to a new trial under the
standard of subsection (e)(3).
``(d) Testing Procedures; Reporting of Test Results.--
``(1) Testing procedures.--The court shall direct that any
DNA testing ordered under this section be carried out by--
``(A) a laboratory mutually selected by the
government and the applicant; or
``(B) if the government and the applicant are
unable to agree on a laboratory, a laboratory selected
by the court ordering the testing.
``(2) Laboratory approval.--With respect to DNA testing by
a laboratory in accordance with this subsection, other than an
FBI laboratory, the court must approve the selection of the
laboratory and make all necessary orders to ensure the
integrity of the evidence and the testing process and the
reliability of the test results.
``(3) Laboratory costs.--The applicant shall pay the cost
of any testing by a laboratory in accordance with this
subsection, other than an FBI laboratory, except that the court
shall pay, in accordance with section 3006A of this title, the
cost if the applicant would otherwise be financially incapable
of securing such testing.
``(4) Disclosure of test results.--The results of any DNA
testing ordered under this section--
``(A) shall be disclosed to--
``(i) the court;
``(ii) the applicant;
``(iii) the government; and
``(iv) the appropriate agency under
subsection (e)(3)(B)(ii); and
``(B) shall be included in the Combined DNA Index
System if the conditions set forth in subsection (e)(2)
are met.
``(e) Posttesting Procedures.--
``(1) Inconclusive result.--If the DNA testing results are
inconclusive, the court may order further testing, as
appropriate, or may deny the applicant relief.
``(2) Positive result.--If DNA testing results obtained
under this section show that the applicant was the source of
the DNA identified as evidence under subsection (a)(2)(B), the
court shall--
``(A) deny the applicant relief;
``(B) submit the DNA testing results to the
Department of Justice for inclusion in the Combined DNA
Index System; and
``(C) on motion of the government, proceed as
provided in paragraph (5)(A).
``(3) Negative result.--If DNA testing results obtained
under this section show that the applicant was not the source
of the DNA identified as evidence under subsection (a)(2)(B)--
``(A) the court shall promptly--
``(i) order any further DNA testing needed
to clarify the import of the test results,
including any testing needed to exclude persons
other than the perpetrator of the crime as
potential sources of the DNA evidence; and
``(ii) determine whether the applicant is
entitled to relief under paragraph (4); and
``(B) the Attorney General shall--
``(i) compare the DNA evidence collected
from the applicant with DNA evidence in the
Combined DNA Index System that has been
collected from unsolved crimes;
``(ii) if the comparison yields a DNA match
with an unsolved crime, notify the appropriate
agency and preserve the DNA sample; and
``(iii) if the comparison fails to yield a
DNA match with an unsolved crime, destroy the
DNA sample collected from the applicant.
``(4) Exculpatory evidence.--If the DNA testing conducted
under this section produces exculpatory evidence--
``(A) the applicant may, during the 60-day period
beginning on the date on which the applicant is
notified of the test results, make a motion to the
court that ordered the testing for a new trial based on
newly discovered evidence under rule 33 of the Federal
Rules of Criminal Procedure, notwithstanding any
provision of law that would bar such a motion as
untimely; and
``(B) upon receipt of a motion under subparagraph
(A), the court that ordered the testing shall consider
the motion under rule 33 of the Federal Rules of
Criminal Procedure, notwithstanding any provision of
law that would bar such consideration as untimely.
``(5) Failure to obtain relief.--
``(A) In general.--If the applicant fails to obtain
relief under this subsection, the court, on motion by
the government, shall make a determination whether the
assertion of innocence by the applicant was false.
``(B) False assertion.--If the court finds that the
assertion of innocence by the applicant was false, the
court--
``(i) may hold the applicant in contempt;
``(ii) shall assess against the applicant
the cost of any DNA testing carried out under
this section; and
``(iii) shall forward the finding to the
Director of the Bureau of Prisons.
``(C) Bureau of prisons.--On receipt of a finding
by the court under this paragraph, the Director of the
Bureau of Prisons may deny, wholly or in part, the good
conduct credit authorized under section 3624 of this title, on the
basis of that finding.
``(D) Parole commission.--If the applicant is
subject to the jurisdiction of the United States Parole
Commission, the court shall forward its finding under
this paragraph to the Parole Commission, and the Parole
Commission may deny parole on the basis of that
finding.
``(E) Penalty.--In any prosecution of an applicant
under chapter 79 of this title, for false assertions or
other conduct in proceedings under this section, the
court, upon conviction of the applicant, shall sentence
the applicant to a term of imprisonment of 1 year,
which shall run consecutively to any other term of
imprisonment the applicant is serving.
``(f) Final Order.--An order granting or denying DNA testing under
subsection (c), or an order granting or denying a new trial under
subsection (e), is a final order for purposes of section 1291 of title
28.
``(g) Time Limits Inapplicable; Other Remedies Unaffected.--
Notwithstanding any time limit otherwise applicable to motions for new
trials based on newly discovered evidence, a court may grant relief
under subsection (e) to an applicant, at any time.
``(h) Other Remedies Unaffected.--This section does not affect the
circumstances under which a person may obtain DNA testing or
postconviction relief under any other law or rule.
``Sec. 3600A. Prohibition on destruction of biological material
``(a) Prohibition.--
``(1) In general.--Notwithstanding any other provision of
law, during the period described in paragraph (2), the
government shall not destroy any biological material preserved
if the defendant is serving a term of imprisonment following
conviction in a case.
``(2) Period described.--The period described in this
paragraph is the period beginning on the date of enactment of
this section and ending on the later of--
``(A) the expiration of the 60-month period
beginning on that date of enactment; or
``(B) the date on which any proceedings under
section 3600 relating to the case are completed.
``(b) Sanctions for Intentional Violation.--The court may impose
appropriate sanctions, including criminal contempt, for an intentional
violation of subsection (a).
``(c) Exceptions.--The government may dispose of evidence before
the expiration of the period of time described in subsection (a) if--
``(1) other than subsection (a), no statute, regulation,
court order, or other provision of law requires that the
evidence be preserved; and
``(2)(A)(i) the government notifies any person who remains
incarcerated in connection with the investigation or
prosecution and any counsel of record for that person (or, if
there is no counsel of record, the public defender for the
judicial district in which the conviction for that person was
imposed), of the intention of the government to dispose of the
evidence and the provisions of this chapter; and
``(ii) the government affords such person not less than 180
days after such notification to make a motion under section
3600(a) for DNA testing of the evidence; or
``(B)(i) the evidence must be returned to its rightful
owner, or is of such a size, bulk, or physical character as to
render retention impracticable; and
``(ii) the government takes reasonable measures to remove
and preserve portions of the material evidence sufficient to
permit future DNA testing.''.
(2) Technical and conforming amendment.--The analysis for
part II of title 18, United States Code, is amended by
inserting after the item relating to chapter 228 the following:
``228A. Postconviction DNA Testing......................... 3600''.
(b) Applicability.--The provisions and amendments in this section
shall take effect on the date of enactment of this Act and shall apply
with respect to any offense committed, and to any judgment of
conviction entered, before, on, or after that date of enactment.
(c) Report by the Attorney General.--
(1) Tracking system.--
(A) In general.--The Attorney General shall
establish a system for reporting and tracking motions
under section 3600 of title 18, United States Code.
(B) Requested assistance.--The judicial branch
shall provide to the Attorney General any requested
assistance in operating a reporting and tracking system
and in ensuring the accuracy and completeness of
information included in that system.
(2) Information.--Not later than 180 days before the
expiration of the time period referenced in section
3600(a)(3)(A) of title 18, United States Code, the Attorney
General shall submit a report to Congress containing--
(A) a summary of the motions filed under section
3600 of title 18, United States Code;
(B) information on whether DNA testing was ordered
pursuant to such motions;
(C) information on whether the applicant obtained
relief on the basis of DNA test results; and
(D) information on whether further proceedings
occurred following a granting of relief and the outcome
of those proceedings.
(3) Assessment.--The report submitted under paragraph (2)
may also include--
(A) any other information that the Attorney General
believes will be useful in assessing the operation,
utility, or costs of section 3600 of title 18, United
States Code; and
(B) any recommendations that the Attorney General
may have relating to future legislative action
concerning section 3600 of title 18, United States
Code.
SEC. 3. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH AMENDMENT.
(a) Application for DNA Testing.--No State shall deny an
application for DNA testing made by a prisoner in State custody who
would be eligible for such testing under the provisions of sections
3600 and 3600A of title 18, United States Code.
(b) DNA Testing Procedures.--The procedures for DNA testing for a
prisoner in State custody shall be substantially similar to the DNA
testing procedures established for Federal courts under sections 3600
and 3600A of title 18, United States Code.
(c) Remedy.--A prisoner in State custody may enforce subsections
(a) and (b) in a civil action for declaratory or injunctive relief,
filed either in a State court of general jurisdiction or in a district
court of the United States, naming an executive or judicial officer of
the State as a defendant.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S3859-3865)
Read twice and referred to the Committee on the Judiciary. (text of measure as introduced: CR S3868-3870)
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