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                                 HOUSE AMENDED
        PRIOR PRINTER'S NOS. 627, 1041, 1052,         PRINTER'S NO. 2107
        1183

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 589 Session of 2001


        INTRODUCED BY GREENLEAF, HELFRICK, COSTA, LEMMOND, GERLACH,
           M. WHITE, BOSCOLA, KUKOVICH, O'PAKE, JUBELIRER, MELLOW, FUMO,
           HOLL, HUGHES, KITCHEN, LAVALLE, MADIGAN, MURPHY, MUSTO, PUNT,
           SCHWARTZ, STACK, TARTAGLIONE, THOMPSON, TOMLINSON, A.
           WILLIAMS, WOZNIAK AND BRIGHTBILL, MARCH 9, 2001

        AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
           REPRESENTATIVES, AS AMENDED, JUNE 18, 2002

                                     AN ACT

     1  Amending Title 42 (Judiciary and Judicial Procedure) of the
     2     Pennsylvania Consolidated Statutes, providing FOR PERMISSIBLE  <--
     3     ARGUMENT AS TO DAMAGES AT TRIAL AND for postconviction DNA
     4     testing.

     5     The General Assembly of the Commonwealth of Pennsylvania
     6  hereby enacts as follows:
     7     Section 1.  Title 42 of the Pennsylvania Consolidated          <--
     8  Statutes is amended by adding a section to read:
     9     SECTION 1.  TITLE 42 OF THE PENNSYLVANIA CONSOLIDATED          <--
    10  STATUTES IS AMENDED BY ADDING SECTIONS TO READ:
    11  § 8315.  PERMISSIBLE ARGUMENT AS TO DAMAGES AT TRIAL.
    12     (A)  GENERAL RULE.--EXCEPT AS PROVIDED IN SUBSECTION (B), IN
    13  ANY CIVIL ACTION TRIED BEFORE A JUDGE, JURY OR OTHER TRIBUNAL,
    14  AN ATTORNEY DURING CLOSING ARGUMENT:
    15         (1)  MAY SPECIFICALLY ARGUE IN LUMP SUMS OR BY
    16     MATHEMATICAL FORMULAE THE AMOUNT HE DEEMS TO BE AN

     1     APPROPRIATE AWARD FOR ALL PAST AND FUTURE ECONOMIC OR
     2     NONECONOMIC DAMAGES OR BOTH ECONOMIC AND NONECONOMIC DAMAGES
     3     CLAIMED TO BE RECOVERABLE.
     4         (2)  MAY, ON BEHALF OF A DEFENDANT, ARGUE TO THE JUDGE,
     5     JURY OR OTHER TRIBUNAL THAT AN AWARD OF ZERO DAMAGES IS
     6     APPROPRIATE, EVEN IF THERE IS A FINDING OF LIABILITY AGAINST
     7     THE DEFENDANT.
     8     (B)  PRIOR DISCLOSURE REQUIRED.--
     9         (1)  NO PARTY MAY ARGUE A SPECIFIC SUM AS PROVIDED IN
    10     SUBSECTION (A) UNLESS THE PARTY FIRST DISCLOSES TO THE COURT
    11     AND OPPOSING COUNSEL THAT THE PARTY INTENDS TO ARGUE THE
    12     SPECIFIC DAMAGES LISTED IN SUBSECTION (A) PRIOR TO THE
    13     PRESENTATION OF CLOSING ARGUMENTS.
    14         (2)  NOTHING IN THIS SUBSECTION SHALL BE CONSTRUED TO
    15     PREVENT A DEFENDANT FROM ARGUING IN ANY CASE THAT THE FACTS
    16     AND EVIDENCE SUPPORT A FINDING OF NO LIABILITY.
    17         (3)  NOTWITHSTANDING PARAGRAPH (1), ARGUMENTS AS TO
    18     APPROPRIATE AMOUNT OF ECONOMIC DAMAGES MAY BE MADE WITHOUT
    19     NOTICE TO OPPOSING COUNSEL IF EVIDENCE SUPPORTING ECONOMIC
    20     DAMAGES HAS BEEN INTRODUCED AT TRIAL.
    21     (C)  JURY INSTRUCTION.--WHENEVER, IN A CIVIL ACTION TRIED
    22  BEFORE A JURY, SPECIFIC LUMP SUMS OR MATHEMATICAL FORMULAE ARE
    23  ARGUED DURING CLOSING ARGUMENTS AS PROVIDED FOR IN SUBSECTION
    24  (A), THE TRIAL COURT SHALL INSTRUCT THE JURY THAT THE SUMS OR
    25  MATHEMATICAL FORMULAE ARGUED ARE NOT EVIDENCE BUT ONLY ARGUMENTS
    26  AND THAT THE DETERMINATION OF THE AMOUNT OF APPROPRIATE DAMAGES
    27  TO BE AWARDED, IF ANY, IS SOLELY FOR THE JURY'S DETERMINATION.
    28  § 9543.1.  Postconviction DNA testing.
    29     (a)  Motion.--
    30         (1)  An individual convicted of a criminal offense in a
    20010S0589B2107                  - 2 -

     1     court of this Commonwealth and serving a term of imprisonment
     2     or awaiting execution because of a sentence of death may
     3     apply by making a written motion to the sentencing court for
     4     the performance of forensic DNA testing on specific evidence
     5     that is related to the investigation or prosecution that
     6     resulted in the judgment of conviction.
     7         (2)  The evidence may have been discovered either prior
     8     to or after the applicant's conviction. The evidence shall be
     9     available for testing as of the date of the motion. If the
    10     evidence was discovered prior to the applicant's conviction,
    11     the evidence shall not have been subject to the DNA testing
    12     requested because the technology for testing was not in
    13     existence at the time of the trial, or the applicant's
    14     counsel did not seek testing at the time of the trial in a
    15     case where a verdict was rendered on or before January 1,
    16     1995, or the applicant's counsel sought funds from the court
    17     to pay for the testing because his client was indigent and
    18     the court refused the request despite the client's indigency.
    19     (b)  Notice to the Commonwealth.--
    20         (1)  Upon receipt of a motion under subsection (a), the
    21     court shall notify the Commonwealth and shall afford the
    22     Commonwealth an opportunity to respond to the motion.
    23         (2)  Upon receipt of a motion under subsection (a) or
    24     notice of the motion, as applicable, the Commonwealth and the
    25     court shall take the steps reasonably necessary to ensure
    26     that any remaining biological material in the possession of
    27     the Commonwealth or the court is preserved pending the
    28     completion of the proceedings under this section.
    29     (c)  Requirements.--In any motion under subsection (a), under
    30  penalty of perjury, the applicant shall:
    20010S0589B2107                  - 3 -

     1         (1)  (i)  specify the evidence to be tested;
     2             (II)  STATE THAT THE APPLICANT CONSENTS TO PROVIDE     <--
     3         SAMPLES OF BODILY FLUID FOR USE IN THE DNA TESTING; AND
     4             (III)  ACKNOWLEDGE THAT THE APPLICANT UNDERSTANDS
     5         THAT IF THE MOTION IS GRANTED ANY DATA OBTAINED FROM ANY
     6         DNA SAMPLES OR TEST RESULTS MAY BE ENTERED INTO LAW
     7         ENFORCEMENT DATABASES, MAY BE USED IN THE INVESTIGATION
     8         OF OTHER CRIMES AND MAY BE USED AS EVIDENCE AGAINST THE
     9         APPLICANT IN OTHER CASES.
    10             (ii)  assert the applicant's actual innocence of the   <--
    11         (2)  (I)  ASSERT THE APPLICANT'S ACTUAL INNOCENCE OF THE   <--
    12         offense for which the applicant was convicted; AND         <--
    13             (iii)  in a capital case, assert the applicant's       <--
    14             (II)  IN A CAPITAL CASE:                               <--
    15                 (A)  ASSERT THE APPLICANT'S actual innocence of
    16             the charged or uncharged conduct constituting an
    17             aggravating circumstance under section 9711(d)
    18             (relating to sentencing procedure for murder of the
    19             first degree), if the applicant's exoneration of the
    20             conduct would result in vacating a sentence of death;
    21             or
    22             (iv) in a capital case, assert that the outcome of     <--
    23                 (B)  ASSERT THAT THE OUTCOME OF the DNA testing    <--
    24             would establish a mitigating circumstance under
    25             section 9711(e)(7) when IF that mitigating             <--
    26             circumstance was presented to the sentencing judge or
    27             jury and facts as to that issue were in dispute at
    28             the sentencing hearing.
    29         (2) (3)  Present a prima facie case demonstrating that     <--
    30     the:
    20010S0589B2107                  - 4 -

     1             (i)  identity of or the participation in the crime by
     2         the perpetrator was at issue in the proceedings that
     3         resulted in the applicant's conviction and sentencing;
     4         and
     5             (ii)  DNA testing of the specific evidence, assuming
     6         exculpatory results, would establish:
     7                 (A)  the applicant's actual innocence of the
     8             offense for which the applicant was convicted;
     9                 (B)  in a capital case, the applicant's actual
    10             innocence of the charged or uncharged conduct
    11             constituting an aggravating circumstance under
    12             section 9711(d), if the applicant's exoneration of
    13             the conduct would result in vacating a sentence of
    14             death; or
    15                 (C)  in a capital case, a mitigating circumstance
    16             under section 9711(e)(7) under the circumstances set
    17             forth in subsection (c)(1)(iv).
    18     (d)  Order.--
    19         (1)  Except as provided in paragraph (2), the court shall
    20     order the testing requested in a motion under subsection (a)
    21     under reasonable conditions designed to preserve the
    22     integrity of the evidence and the testing process, upon a
    23     determination, after review of the record of the applicant's
    24     trial, that the:
    25             (i)  requirements of subsection (c) have been met;
    26             (ii)  evidence to be tested has been subject to a
    27         chain of custody sufficient to establish that it has not
    28         been altered in any material respect; and
    29             (iii)  motion is made in a timely manner and for the
    30         purpose of demonstrating the applicant's actual innocence
    20010S0589B2107                  - 5 -

     1         and not to delay the execution of sentence or
     2         administration of justice.
     3         (2)  The court shall not order the testing requested in a
     4     motion under subsection (a), if after review of the record of
     5     the applicant's trial, the court determines that there is no
     6     reasonable possibility that the testing would produce
     7     exculpatory evidence that:
     8             (i)  would establish the applicant's actual innocence
     9         of the offense for which the applicant was convicted;
    10             (ii)  in a capital case, would establish the
    11         applicant's actual innocence of the charged or uncharged
    12         conduct constituting an aggravating circumstance under
    13         section 9711(d), if the applicant's exoneration of the
    14         conduct would result in vacating a sentence of death; or
    15             (iii)  in a capital case, would establish a
    16         mitigating circumstance under section 9711(e)(7) under
    17         the circumstances set forth in subsection (c)(1)(iv).
    18     (e)  Testing procedures.--
    19         (1)  Any DNA testing ordered under this section shall be
    20     conducted by:
    21             (i)  a laboratory mutually selected by the
    22         Commonwealth and the applicant;
    23             (ii)  if the Commonwealth and the applicant are
    24         unable to agree on a laboratory, a laboratory selected by
    25         the court that ordered the testing; or
    26             (iii)  if the applicant is indigent, the testing
    27         shall be conducted by the Pennsylvania State Police or,
    28         at the Pennsylvania State Police's sole discretion, by a
    29         laboratory designated by the Pennsylvania State Police.
    30         (2)  The costs of any testing ordered under this section
    20010S0589B2107                  - 6 -

     1     shall be paid:
     2             (i)  by the applicant; or
     3             (ii)  in the case of an applicant who is indigent, by
     4         the Commonwealth of Pennsylvania.
     5     (f)  Posttesting procedures.--
     6         (1)  After the DNA testing conducted under this section
     7     has been completed the applicant may, pursuant to section
     8     9545(b)(2) (relating to jurisdiction and proceedings), during
     9     the 60-day period beginning on the date on which the
    10     applicant is notified of the test results, petition to the
    11     court for postconviction relief pursuant to section
    12     9543(a)(2)(vi) (relating to eligibility for relief).
    13         (2)  Upon receipt of a petition filed under paragraph
    14     (1), the court shall consider the petition, along with any
    15     answer filed by the Commonwealth, and shall conduct a hearing
    16     thereon.
    17         (3)  In any hearing on a petition for postconviction
    18     relief filed under paragraph (1), the court shall determine
    19     whether the exculpatory evidence resulting from the DNA
    20     testing conducted under this section would have changed the
    21     outcome of the trial as required by section 9543(a)(2)(vi).
    22     (G)  EFFECT OF MOTION.--THE FILING OF A MOTION FOR FORENSIC    <--
    23  DNA TESTING PURSUANT TO SUBSECTION (A) SHALL HAVE THE FOLLOWING
    24  EFFECT:
    25         (1)  THE FILING OF THE MOTION SHALL CONSTITUTE THE
    26     APPLICANT'S CONSENT TO PROVIDE SAMPLES OF BODILY FLUID FOR
    27     USE IN THE DNA TESTING.
    28         (2)  THE DATA FROM ANY DNA SAMPLES OR TEST RESULTS
    29     OBTAINED AS A RESULT OF THE MOTION MAY BE ENTERED INTO LAW
    30     ENFORCEMENT DATABASES, MAY BE USED IN THE INVESTIGATION OF
    20010S0589B2107                  - 7 -

     1     OTHER CRIMES AND MAY BE USED AS EVIDENCE AGAINST THE
     2     APPLICANT IN OTHER CASES.
     3     (g) (H)  Definitions.--As used in this section, the following  <--
     4  words and phrases shall have the meanings given to them in this
     5  subsection:
     6     "Applicant."  The individual who files a motion under
     7  subsection (a).
     8     "DNA."  Deoxyribonucleic acid.
     9     Section 2.  This act shall take effect in 60 days.














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