S-0711.1  _______________________________________________


                         SENATE BILL 5896



State of Washington      57th Legislature     2001 Regular Session


By Senators Constantine, Kline, Hargrove, Costa, Thibaudeau, Kohl‑Welles and Regala


Read first time 02/07/2001.  Referred to Committee on Judiciary.

Providing for DNA testing of evidence.

    AN ACT Relating to DNA testing of evidence; adding new sections to chapter 10.73 RCW; creating new sections; and providing an expiration date.




    NEW SECTION.  Sec. 1.  (1) Over the past decade, deoxyribonucleic acid (DNA) testing has emerged as the most reliable forensic technique for identifying criminals when biological material is left at a crime scene.

    (2) Because of its scientific precision, DNA testing can, in some cases, conclusively establish the guilt or innocence of a criminal defendant.  In other cases, DNA testing may not conclusively establish guilt or innocence, but may have significant probative value to a finder of fact.

    (3) While DNA testing is increasingly commonplace in pretrial investigations today, it was not widely available in cases tried prior to 1994.  Moreover, new forensic DNA testing procedures have made it possible to get results from minute samples that could not previously be tested, and to obtain more informative and accurate results than earlier forms of forensic DNA testing could produce.  Consequently, in some cases convicted inmates have been exonerated by new DNA tests after earlier tests had failed to produce definitive results.

    (4) Since DNA testing is often feasible on relevant biological material that is decades old, it can, in some circumstances, prove that a conviction that predated the development of DNA testing was based upon incorrect factual findings.  Uniquely, DNA evidence showing innocence, produced decades after a conviction, provides a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial.  DNA testing, therefore, can and has resulted in the postconviction exoneration of innocent men and women.

    (5) In the past decade, there have been more than sixty-five postconviction exonerations in the United States and Canada based upon DNA testing.  At least eight individuals sentenced to death have been exonerated through postconviction DNA testing, some of whom came within days of being executed.

    (6) The two states that have established statutory processes for postconviction DNA testing not just for death penalty cases, Illinois and New York, have the most postconviction DNA exonerations, fourteen and seven, respectively.

    (7) The advent of DNA testing raises serious concerns regarding the prevalence of wrongful convictions, especially wrongful convictions arising out of mistaken eyewitness identification testimony.  According to a 1996 department of justice study entitled "Convicted by Juries, Exonerated by Science:  Case Studies of Postconviction DNA Exonerations", in approximately twenty to thirty percent of the cases referred for DNA testing, the results excluded the primary suspect.  Without DNA testing, many of these individuals might have been wrongfully convicted.

    (8) Even when DNA testing has been done and has persuasively demonstrated the actual innocence of an inmate, some states have sometimes relied on time limits and other procedural barriers to deny release.

    (9) The national commission on the future of DNA evidence, a federal panel established by the department of justice and comprised of law enforcement, judicial, and scientific experts, has issued a report entitled "Recommendations For Handling Postconviction DNA Applications" that urges postconviction DNA testing in at least certain categories of cases, notwithstanding procedural rules that could be invoked to preclude such testing, and notwithstanding the inability of the inmate to pay for the testing.

    (10) The number of cases in which postconviction DNA testing is appropriate is relatively small and will decrease as pretrial testing becomes more common and accessible.

    (11) The cost of DNA testing has also decreased in recent years.

    (12) In 1994, congress authorized funding to improve the quality and availability of DNA analysis for law enforcement identification purposes.  Since then, states have been awarded over fifty million dollars in DNA-related grants.

    (13) If biological material is not subjected to DNA testing in appropriate cases, there is a significant risk that persuasive evidence of innocence will not be detected and, accordingly, that innocent persons will be unconstitutionally incarcerated or executed.

    (14) There is also a compelling need to ensure the preservation of biological material for postconviction DNA testing.  Since 1992, the Innocence Project at the Benjamin N. Cardozo School of Law has received thousands of letters from inmates who claim that DNA testing could prove them innocent.  In over seventy percent of those cases in which DNA testing could have been dispositive of guilt or innocence if the biological material were available, the material had been destroyed or lost.  In two-thirds of the cases in which the evidence was found, and DNA testing conducted, the results have exonerated the inmate.

    (15) In at least fourteen cases, postconviction DNA testing that has exonerated a wrongly convicted person has also provided evidence leading to the apprehension of the actual perpetrator, thereby enhancing public safety.  This would not have been possible if the biological evidence had been destroyed.


    NEW SECTION.  Sec. 2.  A new section is added to chapter 10.73 RCW to read as follows:

    (1) A person who was convicted of a felony and is currently serving a term of imprisonment may make a written motion before the trial court that entered the judgment of conviction in his or her case for performance of forensic deoxyribonucleic acid (DNA) testing.

    (a) The motion shall be verified by the convicted person under penalty of perjury and shall do all of the following:

    (i) Explain why the identity of the perpetrator was, or should have been, a significant issue in the case;

    (ii) Explain in light of all the evidence, how the requested DNA testing would raise a reasonable probability that the convicted person's verdict or sentence would be more favorable if the results of DNA testing had been available at the time of conviction;

    (iii) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought.

    (b) Notice of the motion shall be served on the attorney general, the prosecuting attorney in the county of conviction, and, if known, the governmental agency or laboratory holding the evidence sought to be tested.  Responses, if any, shall be filed within sixty days of the date on which the attorney general and the prosecuting attorney are served with the motion, unless a continuance is granted.

    (c) If any DNA or other biological evidence testing was conducted previously by either the prosecution or defense, the results of that testing shall be revealed in the motion for testing, if known.  If evidence was subjected to DNA or other forensic testing previously by either the prosecution or defense, the court shall order the prosecution or defense to provide all parties and the court with access to the laboratory reports, underlying data, and laboratory notes prepared in connection with the DNA testing.

    (2) The court, in its discretion, may order a hearing on the motion.  The motion shall be heard by the judge who conducted the trial unless the presiding judge determines that judge is unavailable.  Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion.

    (3) The court shall appoint counsel for the convicted person who brings a motion under this section if that person is indigent.

    (4) The court shall grant the motion for DNA testing if it determines all of the following have been established:

    (a) The evidence to be tested 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;

    (c) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case;

    (d) The convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the perpetrator of, or accomplice to, the crime, special circumstance, or enhancement allegation that resulted in the conviction or sentence;

    (e) The requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction.  The court in its discretion may consider any evidence whether or not it was introduced at trial;

    (f) The evidence sought to be tested meets either of the following conditions:

    (i) It was not tested previously;

    (ii) It was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results;

    (g) The testing requested employs a method generally accepted within the relevant scientific community;

    (h) The motion is not made solely for the purpose of delay.

    (5) If the court grants the motion for DNA testing, the court order shall identify the specific evidence to be tested and the DNA technology to be used.  The testing shall be conducted by a laboratory mutually agreed upon by the prosecuting attorney in a noncapital case, or the attorney general in a capital case, and the person filing the motion.  If the parties cannot agree, the court's order shall designate the laboratory to conduct the testing and shall consider designating a laboratory accredited by the American society of crime laboratory directors laboratory accreditation board.

    (6) The result of any testing ordered under this section shall be fully disclosed to the person filing the motion, the prosecuting attorney, and the attorney general.  If requested by any party, the court shall order production of the underlying laboratory data and notes.

    (7)(a) The cost of DNA testing ordered under this section shall be borne by the state or the applicant, as the court may order in the interests of justice, if it is shown that the applicant is not indigent and possesses the ability to pay.  However, the cost of any additional testing to be conducted by the prosecuting attorney or the attorney general shall not be borne by the convicted person.

    (b) In order to pay the state's share of any testing costs, the laboratory designated in subsection (5) of this section shall present its bill for services to the superior court for approval and payment.

    (8) An order granting or denying a motion for DNA testing under this section shall not be appealable, and shall be subject to review only through petition for writ of mandate or prohibition filed by the person seeking DNA testing, the prosecuting attorney, or the attorney general.  Any such petition shall be filed within twenty days after the court's order granting or denying the motion for DNA testing.  In a noncapital case, the petition for writ of mandate or prohibition shall be filed in the court of appeals.  In a capital case, the petition shall be filed in the supreme court.  The court of appeals or supreme court shall expedite its review of a petition for writ of mandate or prohibition filed under this subsection.

    (9) DNA testing ordered by the court pursuant to this section shall be done as soon as practicable.  However, if the court finds that a miscarriage of justice will otherwise occur and that it is necessary in the interests of justice to give priority to the DNA testing, a DNA laboratory shall be required to give priority to the DNA testing ordered pursuant to this section over the laboratory's other pending casework.

    (10) DNA profile information from biological samples taken from a convicted person pursuant to a motion for postconviction DNA testing is exempt from any law requiring disclosure of information to the public.


    NEW SECTION.  Sec. 3.  A new section is added to chapter 10.73 RCW to read as follows:

    (1) Notwithstanding any other provision of law and subject to subsection (2) of this section, the appropriate governmental entity shall retain any biological material secured in connection with a criminal case for the period of time that any person remains incarcerated in connection with that case.  The governmental entity shall have the discretion to determine how the evidence is retained pursuant to this section, provided that the evidence is retained in a condition suitable for DNA testing.

    (2) A governmental entity may dispose of biological material before the expiration of the period of time described in subsection (1) of this section if all of the conditions set forth in this subsection are met:

    (a) The governmental entity notifies all of the following persons of the provisions of this section and of the intention of the governmental entity to dispose of the material:  Any person, who as a result of a felony conviction in the case is currently serving a term of imprisonment and who remains incarcerated in connection with the case, any counsel of record, the public defender in the county of conviction, the prosecuting attorney in the county of conviction, and the attorney general.

    (b) The notifying entity does not receive, within ninety days of sending the notification, any of the following:

    (i) A motion filed pursuant to section 2 of this act, however, upon filing of that application, the governmental entity shall retain the material only until the time that the court's denial of the motion is final.

    (ii) A request under penalty of perjury that the material not be destroyed or disposed of because the declarant will file within one hundred eighty days a motion for DNA testing pursuant to section 2 of this act that is followed within one hundred eighty days by a motion for DNA testing pursuant to section 2 of this act, unless a request for an extension is requested by the convicted person and agreed to by the governmental entity in possession of the evidence.

    (c) No other provision of law requires that biological evidence be preserved or retained.

    (3) This section expires January 1, 2006.


    NEW SECTION.  Sec. 4.  A new section is added to chapter 10.73 RCW to read as follows:

    Nothing in this act may be construed to create a new or additional cause of action in any court.  Nothing in this act shall be construed to limit any rights offenders might otherwise have to court access under any other statutory or constitutional provision.


    NEW SECTION.  Sec. 5.  If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2001, in the omnibus appropriations act, this act is null and void.


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