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PRINTER'S NO. 1535
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
916
Session of
2018
INTRODUCED BY GREENLEAF, BARTOLOTTA, RESCHENTHALER, YUDICHAK,
FARNESE, HAYWOOD, VOGEL, BREWSTER, SCARNATI, WHITE, BROWNE,
FONTANA, WARD, BOSCOLA AND LEACH, MARCH 15, 2018
REFERRED TO JUDICIARY, MARCH 15, 2018
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, in post-trial matters,
further providing for postconviction DNA testing.
The General Assembly finds and declares as follows:
(1) Postconviction DNA testing has exonerated wrongfully
convicted individuals and identified real perpetrators of
crimes.
(2) To the extent possible, DNA testing of evidence
before trial is encouraged to help prevent wrongful
convictions and to lead to earlier detection and conviction
of actual perpetrators.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 9543.1 of Title 42 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 9543.1. Postconviction DNA testing.
(a) Motion.--
(1) An individual convicted of a criminal offense in a
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court of this Commonwealth [and serving a term of
imprisonment or awaiting execution because of a sentence of
death] may apply by making a written motion to the sentencing
court at any time for the performance of forensic DNA testing
on specific evidence that is related to the investigation or
prosecution that resulted in the judgment of conviction.
(2) The evidence may have been discovered either prior
to or after the applicant's conviction. The evidence shall be
available for testing as of the date of the motion. If the
evidence was discovered prior to the applicant's conviction,
the evidence shall not have been subject to the DNA testing
requested because the technology for testing was not in
existence at the time of the trial or the applicant's counsel
did not seek testing at the time of the trial in a case where
a verdict was rendered on or before January 1, 1995, or the
evidence was subject to the testing, but newer technology
could provide substantially more accurate and substantially
probative results, or the applicant's counsel sought funds
from the court to pay for the testing because his client was
indigent and the court refused the request despite the
client's indigency.
(3) A request for DNA testing under this section shall
be by written petition and shall be filed with the clerk of
courts of the judicial district where the sentence is
imposed.
(4) DNA testing may be sought at any time if the motion
is made in a timely manner and for the purpose of
demonstrating the applicant's actual innocence and not to
delay the execution of sentence or administration of justice.
(5) Notwithstanding any other provision of law, a plea
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of guilty to a crime of violence, as defined in section
9714(g) (relating to sentences for second and subsequent
offenses), or a confession given by an applicant concerning
the offense for which the applicant was convicted, shall not
prohibit the applicant from asserting actual innocence under
subsection (c)(2) or the court from making a determination
and ordering DNA testing under subsection (d)(2).
(6) The motion shall explain how, after review of the
record of the applicant's trial, there is a reasonable
possibility if the applicant is under State supervision, or
there is a reasonable probability if the applicant is not
under State supervision, or after review of the record of the
applicant's guilty plea there is a reasonable probability,
that the testing would produce exculpatory evidence that
would establish :
(i) the applicant's actual innocence of the offense
for which the applicant was convicted;
(ii) in a capital case, the applicant's actual
innocence of the charged or uncharged conduct
constituting an aggravating circumstance under section
9711(d) (relating to sentencing procedure for murder of
the first degree) if the applicant's exoneration of the
conduct would result in vacating a sentence of death; or
(iii) in a capital case, a mitigating circumstance
under section 9711(e)(7) under the circumstances set
forth in section 9711(c)(1)(iv).
(b) Notice to the Commonwealth.--
(1) Upon receipt of a motion under subsection (a), the
court shall notify the Commonwealth and shall afford the
Commonwealth an opportunity to respond to the motion.
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(2) Upon receipt of a motion under subsection (a) or
notice of the motion, as applicable, the Commonwealth and the
court shall take the steps reasonably necessary to ensure
that any remaining biological material in the possession of
the Commonwealth or the court is preserved pending the
completion of the proceedings under this section.
(c) Requirements.--In any motion under subsection (a), under
penalty of perjury, the applicant shall:
(1) (i) specify the evidence to be tested;
(ii) state that the applicant consents to provide
samples of bodily fluid for use in the DNA testing; and
(iii) acknowledge that the applicant understands
that, if the motion is granted, any data obtained from
any DNA samples or test results may be entered into law
enforcement databases, may be used in the investigation
of other crimes and may be used as evidence against the
applicant in other cases.
(2) (i) in a sworn statement subject to the penalties
under 18 Pa.C.S. §§ 4902 (relating to perjury) and 4903
(relating to false swearing), assert the applicant's
actual innocence of the offense for which the applicant
was convicted and that the applicant seeks DNA testing
for the purpose of demonstrating the applicant's actual
innocence; and
(ii) in a capital case:
(A) assert the applicant's actual innocence of
the charged or uncharged conduct constituting an
aggravating circumstance under section 9711(d)
[(relating to sentencing procedure for murder of the
first degree)] if the applicant's exoneration of the
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conduct would result in vacating a sentence of death;
or
(B) assert that the outcome of the DNA testing
would establish a mitigating circumstance under
section 9711(e)(7) if that mitigating circumstance
was presented to the sentencing judge or jury and
facts as to that issue were in dispute at the
sentencing hearing.
(3) present a prima facie case demonstrating that the:
(i) identity of or the participation in the crime by
the perpetrator was at issue in the proceedings that
resulted in the applicant's conviction and sentencing;
and
(ii) DNA testing of the specific evidence, assuming
exculpatory results, would establish:
(A) the applicant's actual innocence of the
offense for which the applicant was convicted;
(B) in a capital case, the applicant's actual
innocence of the charged or uncharged conduct
constituting an aggravating circumstance under
section 9711(d) if the applicant's exoneration of the
conduct would result in vacating a sentence of death;
or
(C) in a capital case, a mitigating circumstance
under section 9711(e)(7) under the circumstances set
forth in [subsection (c)(1)(iv)] section 9711(c)(1)
(iv).
(d) Order.--
(1) Except as provided in paragraph (2), the court shall
order the testing requested in a motion under subsection (a)
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under reasonable conditions designed to preserve the
integrity of the evidence and the testing process upon a
determination, after review of the record of the applicant's
trial, that the:
(i) requirements of subsection (c) have been met;
(ii) evidence to be tested has been subject to a
chain of custody sufficient to establish that it has not
been altered in any material respect; and
(iii) motion is made in a timely manner and for the
purpose of demonstrating the applicant's actual innocence
and not to delay the execution of sentence or
administration of justice.
(2) The court shall not order the testing requested in a
motion under subsection (a) if, after review of the record of
the applicant's trial, the court determines that there is no
reasonable possibility for an applicant under State
supervision, or there is no reasonable probability for an
applicant not under State supervision , or after review of the
record of the applicant's guilty plea, the court determines
that there is no reasonable probability, that the testing
would produce exculpatory evidence that:
(i) would establish the applicant's actual innocence
of the offense for which the applicant was convicted;
(ii) in a capital case, would establish the
applicant's actual innocence of the charged or uncharged
conduct constituting an aggravating circumstance under
section 9711(d) if the applicant's exoneration of the
conduct would result in vacating a sentence of death; or
(iii) in a capital case, would establish a
mitigating circumstance under section 9711(e)(7) under
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the circumstances set forth in [subsection (c)(1)(iv)]
section 9711(c)(1)(iv).
(3) Any DNA testing order under this section shall
constitute a final order. An applicant or the Commonwealth
may appeal a decision denying or granting a DNA testing order
in accordance with the Pennsylvania Rules of Appellate
Procedure.
(4) Any decision granting or denying a DNA testing order
shall include an explanation by the court of how the testing
requested in a motion under subsection (a) has met or fails
to have met the requirements under paragraphs (1), (2) and
(3).
(5) Upon determining the petitioner has met the
applicable burden established in paragraph (1) or (2), the
court may require the Commonwealth to prepare an inventory of
evidence related to the case and serve a copy of the
inventory to the prosecution, the applicant, the applicant's
attorney, if applicable, and the court. The inventory may
include, but not be limited to, a list of evidence collected
and forensic testing previously done relating to the evidence
and the names of agencies that conducted the forensic
testing.
(e) Testing procedures.--
(1) Any DNA testing ordered under this section shall be
conducted by:
(i) a laboratory mutually selected by the
Commonwealth and the applicant;
(ii) a laboratory selected by the court that ordered
the testing if the Commonwealth and the applicant are
unable to agree on a laboratory[, a laboratory selected
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by the court that ordered the testing]; or
(iii) if the applicant is indigent, the testing
shall be conducted by the Pennsylvania State Police or,
at the Pennsylvania State Police's sole discretion, by a
laboratory designated by the Pennsylvania State Police.
(2) The costs of any testing ordered under this section
shall be paid:
(i) by the applicant; or
(ii) in the case of an applicant who is indigent, by
the Commonwealth of Pennsylvania.
(3) [Testing conducted by the Pennsylvania State Police
shall be carried out in accordance with the protocols and
procedures established by the Pennsylvania State Police.] To
the extent possible and not inconsistent with best laboratory
practices, the testing shall be conducted in a manner that
ensures that some portion of the sample is preserved for
replication of testing. If the laboratory determines it may
be necessary to consume the entirety of any sample during
testing, the laboratory shall inform the prosecution, the
applicant and the applicant's attorney, if applicable, of its
recommendation and obtain the prosecution and the applicant's
consent before proceeding. If the prosecution and the
applicant do not consent, the court may issue any appropriate
order before testing proceeds.
(4) If testing is performed by a private laboratory and
a DNA database search is anticipated, the applicant shall
ensure that the chosen laboratory is accredited by an
accreditation body that is a signatory to the International
Laboratory Accreditation Cooperation Mutual Recognition
Agreement that is designated by the Federal Bureau of
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Investigation in accordance with 34 U.S.C. § 12591 (relating
to quality assurance and proficiency testing standards), that
requires conformance to forensic science requirements and
that the accreditation include DNA testing, and is compliant
with Federal Bureau of Investigation quality assurance
standards.
(5) When testing is performed by a private laboratory,
the public laboratory shall take all reasonable measures
before the testing is conducted to ensure that the results of
the testing may be entered into CODIS so that a comparison to
known offender or crime scene profiles may be made if the
laboratory and test results otherwise satisfy the criteria
for database entry.
(6) Testing conducted by the Pennsylvania State Police
shall be carried out in accordance with the protocols and
procedures established by the Pennsylvania State Police.
(7) To the extent possible, if communication with the
parties regarding the testing process and test results is
necessary, the testing laboratory shall communicate with
counsel for petitioner and the Commonwealth simultaneously.
(8) No direct communication involving the testing
laboratory without the inclusion of a representative of each
party shall occur.
(f) Posttesting procedures.--
(1) After the DNA testing conducted under this section
has been completed, the applicant may, pursuant to section
9545(b)(2) (relating to jurisdiction and proceedings), during
the [60-day] one-year period beginning on the date on which
the applicant is notified of the test results, petition to
the court for postconviction relief pursuant to section
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9543(a)(2)(vi) (relating to eligibility for relief).
(2) Upon receipt of a petition filed under paragraph
(1), the court shall consider the petition along with any
answer filed by the Commonwealth and shall conduct a hearing
thereon.
(3) In any hearing on a petition for postconviction
relief filed under paragraph (1), the court shall determine
whether the exculpatory evidence resulting from the DNA
testing conducted under this section would have changed the
outcome of the trial as required by section 9543(a)(2)(vi).
(4) If testing complies with Federal Bureau of
Investigation requirements and the data meets NDIS criteria,
profiles obtained from the testing shall be searched or
uploaded to CODIS.
(5) When testing is conducted by a private laboratory, a
court may order a public laboratory with access to CODIS to
take the necessary measures to ensure the DNA profile
obtained from probative biological material from crime scene
evidence can be uploaded to CODIS by the public laboratory.
Necessary measures may include requiring the public
laboratory to conduct a review of the private laboratory's
facilities or records to ensure that the private laboratory
complies with Federal Bureau of Investigation requirements
regarding CODIS. If the private laboratory meets Federal
Bureau of Investigation and CODIS requirements, the court may
order the public laboratory to upload the DNA profile to
determine whether the profile matches a profile of a known
individual or a profile from an unsolved crime. The DNA
profile submitted to the databases must comply with the
Federal Bureau of Investigation requirements for the
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uploading of DNA profiles to CODIS, and the Commonwealth
shall take all reasonable measures to ensure that the testing
complies with the requirements.
(6) If DNA testing conclusively identifies the DNA
profile of the applicant on probative and inculpatory
evidence, the court shall dismiss the petition and may make
any further orders that are appropriate. An order under this
paragraph may:
(i) direct that the Pennsylvania Board of Probation
and Parole be notified of the test results; or
(ii) mandate that the applicant's DNA profile be
added to the Commonwealth's convicted offender database.
(g) Effect of motion.--The filing of a motion for forensic
DNA testing pursuant to subsection (a) shall have the following
effect:
(1) The filing of the motion shall constitute the
applicant's consent to provide samples of bodily fluid for
use in the DNA testing.
(2) The data from any DNA samples or test results
obtained as a result of the motion may be entered into law
enforcement databases, may be used in the investigation of
other crimes and may be used as evidence against the
applicant in other cases.
(h) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Applicant." The individual who files a motion under
subsection (a).
"CODIS." The Combined DNA Index System administered by the
Federal Bureau of Investigation that allows for the storage and
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exchange of DNA records submitted by Federal, State and local
forensic DNA laboratories.
"DNA." Deoxyribonucleic acid.
"NDIS." The National DNA Index System which is the national
DNA database system of DNA records and meets Federal quality
assurance and privacy standards.
"Public laboratory." The Pennsylvania State Police Forensic
DNA Division, the Philadelphia Police Department Forensic
Science Bureau, the Allegheny County Medical Examiner's Office
or any other laboratory maintained by the Commonwealth with
access to CODIS.
Section 2. This act shall take effect in 60 days.
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