Posted December 17, 2007
Post-Conviction DNA Motions
December 2007
Each state has its own set of procedural rules for post-conviction relief. These rules set the
grounds upon which a new trial is available and the threshold that must be met in order to merit a new
trial. Traditionally in most states, the rules of criminal procedure require new evidence to be brought
before the court within six months of the conviction.
In recent years, the potential for DNA to exonerate, as well as convict offenders, has led to
specific statutes in a growing number of states to allow for post-conviction DNA testing. Under
certain circumstances, such DNA tests might provide important evidence relevant to the case, even after
the convicted person has exhausted all of his/her appeals. The motions allowed and the processes being
created under these laws allow judges broader authority to order or admit DNA evidence in such cases.
To date, at least 38 states have post-conviction DNA laws. Many of those have been enacted since
about 2000, with interest and opportunity for post-conviction review expanding with DNA technology in
criminal justice systems.
Other, related actions in states address preservation of biological evidence; standards and
procedures for forensic labs, and one to broadly address innocence issues.
Post-conviction DNA laws include:
Arizona SB 1353 (2000)
A person who was convicted of and sentenced for a felony offense and who meets the requirements may
request the forensic DNA testing of any evidence that is in the possession or control of the court or
the state, that is related to the investigation or prosecution that resulted in the judgment of
conviction, and that may contain biological evidence. Also requires the state, if a DNA test request is
made, to preserve and create an inventory of evidence in the case.
California SB 1342 (2000)
Authorizes motion for post-conviction DNA testing upon demonstrated reasonable probability that the
technology, had it been available at the time of trial resulting in conviction, would have had an impact
on the verdict.
Colorado SB 164 (2003)
Allows an incarcerated person to file a motion for post-conviction DNA testing, where biological
evidence in the case is available and not previously tested. Petitioner shall bears all costs of
testing and is afforded the right to appeal the denial of the DNA request. States that no law
enforcement duty to preserve or liability for failure to preserve such evidence is created as a result
of this act. Provides that DNA profiles obtained as a result of post-conviction testing ordered are to
be available to state and federal data bases.
Connecticut HB 5903 (2000)
Allows petitions based on DNA evidence that was not discoverable or available at the time of the
original trial any time after the discovery or availability of such new evidence.
Delaware Senate Substitute for SB 329 (2000)
Allows overturning convictions if forensic DNA testing not available at the time of trial establishes
the innocence of the convicted person. Also extends the statute of limitations on crimes when the
prosecution is based upon forensic DNA testing.
Delaware SB 38 (2003)
Extends the data of termination for filing motions for post-conviction DNA testing.
Florida SB 366 (2001)
Allows any person convicted of a crime to petition for DNA testing of evidence collected during the
investigation of the crime for which he is sentenced. Costs of testing paid for by petitioner unless
deemed indigent. Petitioner has 30 days to appeal if relief is denied.
Georgia S 119 (2003)
Provides for motions for post-conviction DNA testing, where evidence exists that was not previously
subjected to DNA testing. Requires victims be notified of a defendant’s motion for a new trial.
Requires 10-year preservation of criminal cases physical evidence; and in death penalty cases,
maintenance of evidence until the sentence is carried out.
Hawaii H 1733 (2005)
Allows for post-conviction analysis of DNA evidence, if evidence is in custody of the state and if the
motion demonstrates reasonable probability of exculpatory results, upon such court finding. Requires
that biological evidence from convictions be retained until either appeals have exhausted or the
completion of resulting prison, probation or parole.
Hawaii S 2243 (2006)
Expands DNA post conviction motions to include those who were not convicted but were acquitted of a
crime due to mental disease, disorder or defect.
Idaho HB 242 (2001)
Allows any person convicted of a criminal offense to motion for post-conviction DNA testing if evidence
used at trial and susceptible to testing is available and was subject to a clear chain of custody.
Provides deadline for filing. Petitioner must pay for costs unless he qualifies for state assistance.
Illinois (1997) (725 ILCS 5/116-3) Sec. 116-3.
Motion for fingerprint or forensic testing not available at trial regarding actual innocence.
(a) A defendant may make a motion before the trial court that entered the judgment of conviction
in his or her case for the performance of fingerprint or forensic DNA testing on evidence that was
secured in relation to the trial which resulted in his or her conviction, but which was not subject to
the testing which is now requested because the technology for the testing was not available at the time
of trial. Reasonable notice of the motion shall be served upon the State.
(b) The defendant must present a prima facie case that: (1) identity was the issue in the
trial which resulted in his or her conviction; and (2) the evidence to be tested has been subject to a
chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or
altered in any material aspect.
(c) The trial court shall allow the testing under reasonable conditions designed to protect the
State's interests in the integrity of the evidence and the testing process upon a determination that:
(1) the result of the testing has the scientific potential to produce new, noncumulative evidence
materially relevant to the defendant's assertion of actual innocence; (2) the testing requested employs
a scientific method generally accepted within the relevant scientific community. (Source: P.A.
90-141, effective 01-01-98.)
Indiana SB 81 (2001)
Provides for post-conviction DNA testing and analysis for persons convicted of Class A, B and C felonies.
Iowa H 619 (2005)
Allows for motions for DNA post-conviction testing, and courts must grant such testing if DNA evidence
is available and in a condition suitable for analysis, and other related requirements. Sets requirements
for preservation of DNA in criminal actions.
Kentucky HB 4 (2002)
Provides procedure for person convicted of a capital offense and sentenced to death to request DNA
testing and analysis of existing forensic evidence not previously subjected to such analysis. Requires
petitioner pay for cost of testing; for appointment of counsel for qualifying defendants; and for
preservation of evidence in such cases. If results of testing are not favorable to defendant, the
court may order that the defendant’s DNA sample be added to the state police database, and provide
notice to victim families. Expands to additional crimes those offenders currently in custody of or
being supervised by the Department of Corrections required to submit a sample for DNA analysis; and
prioritizing implementation as funding becomes available. Includes persons convicted unlawful
transaction with minor, use of or promoting sexual performance of a minor; burglary I and II; and
Class A and Class B felonies involving death or serious injury to victim. Includes some juvenile
offenders.
Louisiana SB 511 (2001)
Provides procedure for filing post-conviction relief to allow DNA testing. Establishes 4-year period
within which an application may be filed. Provides for proper preservation of biological material that
can be subjected to DNA testing. Requires the DNA profile of the petitioner be added to the state DNA
data base. Creates DNA Testing Post-Conviction Relief for Indigents fund, to pay for DNA testing under
the act.
Louisiana SB 522 (2003)
Extends the period in which a person may file an application for post-conviction DNA testing.
Louisiana SB 401 (2006)
Extends time period for inmates to seek post-conviction DNA testing from 8/31/07 to 8/31/09. Accordingly
extends time that law enforcement must preserve evidence known to contain biological material.
Maine HB 1250 (2001)
Requires prosecutors to reopen cases where sentenced offenders have had a DNA test that indicates
innocence.
Maine H 1348 (2006)
Allows a post-conviction DNA testing motion to be brought at any time by any convicted person, regardless
of whether the person is incarcerated or the length of sentence. Establishes time limits for the state
to respond to the motion; requires preservation of all evidence in control of law enforcement for period
of incarceration, probation, civil commitment or registration as a sex offender.
Maryland SB 694 (2001)
Allows a person convicted of a certain criminal offense to petition for DNA testing of evidence subjected
to the chain of custody. Petitioner pays for testing, however, is reimbursed by the state if testing
results are favorable to him.
Michigan SB 1395 (2000)
Allows convicted defendants to petition for DNA testing of biological material identified during
investigation leading to conviction, and for new trial based on the results of that testing.
Minnesota § 590.01 Sub d. 1a.
Motion for fingerprint or forensic testing not available at trial.
Allows a person convicted of a crime to make a motion for the performance of fingerprint or forensic
DNA testing to demonstrate the person’s actual innocence if certain conditions are met.
Missouri SB 267 (2001)
Allows incarcerated offenders to motion for DNA testing in order to demonstrate innocence.
Nebraska LB 659 (2001)
Allows a convicted person to motion for DNA testing if matter was not previously tested or can be
subjected to retesting with more current techniques. Costs of testing paid for by petitioner unless
determined indigent by the court. If the court does not grant relief, any party may file a motion for
a new trial.
Nevada AB 16 (2003)
Allows persons convicted and sentenced to death to request a genetic maker analysis of evidence in
state custody which may contain information relating to the investigation or prosecution that resulted
in the judgment. Allows for new trial based on new evidence discovered.
New Hampshire H 640 (2004)
Permits petition to the court for post-conviction DNA testing of biological material under certain
circumstances.
New Mexico S 337 (2001)
Allows any person convicted of a criminal offense to petition the court to set aside the sentence or
grant a new trial if DNA evidence not available at trial will establish innocence. Permits prosecution
to use DNA test results for other unrelated cases. Gives petitioners one year to file. (Law that has
followed extended this sunset.)
New Mexico SB 184 (2003)
Extends repeal on law allowing petition for post-conviction DNA testing until July 2006.
New York §440.30
Motion to vacate judgment and set aside sentence procedure.
Allows for the testing of DNA evidence in cases where the evidence was available but not tested.
North Carolina HB 884 (2001)
Allows any defendant to motion for post-conviction DNA testing. Requires indigent defendants to
receive counsel and requires the state to pay for testing if the defendant is unable to do so. Requires
preservation of evidence susceptible to DNA testing.
North Carolina HB 1500 (2007)
Allows defendants to appeal order denying motion for DNA testing. Amends post-conviction DNA testing
provisions to allow motions upon the showing that more accurate DNA testing are now available that were
not available at the time of previous testing. Provides for suitable and documented preservation of
evidence that is reasonable likely to contain any biological evidence collected in the course of a
criminal investigation or prosecution. Allows defendant to appeal denial of motion to conduct DNA
testing. Applies to and sets preservation time periods for death cases, violent felonies, offenses
requiring sex offender registration and DNA sampling. Establishes petition procedures by which a
government entity might seek to destroy stored evidence.
North Dakota H 1288 (2005)
Authorizes motion for DNA testing to demonstrate innocence, upon finding that evidence is available to
be tested; that identity was an issue at conviction.
Ohio SB 11 (2003)
Establishes procedures for post-conviction DNA testing of certain inmates serving terms for a felony or
under sentence of death.
Ohio SB 262 (2006)
Eliminates the two-year window for post-conviction DNA testing and allows testing at any time. Allows
an inmate to request unknown DNA from the crime scene to be compared to the combined DNA index system
maintained by the FBI. Provides that DNA results from the crime scene must have been analyzed in the
context of all available evidence at trial in order to proceed with post-conviction DNA testing.
Oklahoma SB 1381 (2000)
Creates a system to investigate and refer to prosecution, cases of indigent, presently incarcerated
persons for whom post-conviction factual innocence may be demonstrated by scientific evidence.
Convicted offenders serving lengthy sentences or under sentence of death are given priority under the
system.
Oregon SB 667 (2001)
Allows a convicted person to motion for DNA testing no later than 48 months after the effective date of
this act. Provides for petition in circuit court requesting appointment of counsel at state expense to
assist the person in determining whether to file a motion. Requires interim review of various technology
and evidentiary issues related to the act.
Oregon S 244 (2007)
Removes sunset provisions relating to post-conviction testing.
Pennsylvania SB 589 (2002)
Provides that persons sentenced to death may assert innocence in a motion for DNA testing of specific,
available evidence for which DNA technology was not available at the time of the conviction, or the
defendant’s counsel did not seek testing, or the court refused to pay for testing for an indigent client.
Upon such motion the court must ensure preservation of the biological materials. Provides that costs of
ordered post-conviction testing will be paid by the applicant, if able, and by the Commonwealth for an
indigent applicant.
Rhode Island SB 2721 (2002)
Allows imprisoned offender to assert innocence in a petition for forensic DNA testing of any existing
evidence, and that such testing be conducted if such evidence was not previously tested and a reasonable
probability exists that the applicant would not have been prosecuted or convicted had such testing been
available. Requires state to pay cost of testing unless the court finds the defendant have ability to
pay. Requires preservation of biological evidence during a defendant’s incarceration.
Tennessee HB 2490 (2000)
Permits defendant convicted of first degree murder and sentenced to death to petition court of conviction
for fingerprint or forensic DNA analysis on evidence not tested at time of trial because technology not
available or results not admissible.
Tennessee SB 796 (2001)
Expands list of offenders eligible for post-conviction DNA testing from those sentenced to death to any
offender convicted of and sentenced for any criminal offense.
Texas SB 3 (2001)
Allows a convicted person to motion for DNA testing. Permits test results to be entered in DNA database.
Utah SB 172 (2001)
Allows convicted felons to motion for DNA testing. Consequences of filing petition include waiving
felony statute of limitations offenses in any jurisdiction if a match is found from the DNA and the
profile may be entered into DNA databanks. Instructs the state to pay for testing for those in prison,
indigent and if the result is favorable to the individual. Allows victims to be notified of testing.
Utah HB 356 (2007)
Provides that post-conviction DNA tests be conducted using a scientifically accepted procedure and be
paid for from the DAN Specimen Restricted Account if the court has ordered DNA testing upon petition of
the defendant, the state crime lab does not have sufficient resources, and the defendant is incarcerated
and indigent.
Utah HB 356 (2007)
Provides that post-conviction DNA tests be conducted using a scientifically accepted procedure and be
paid for from the DNA Specimen Restricted Account if the court has ordered DNA testing upon petition
from the defendant, the state crime lab does not have needed resources, and the defendant is incarcerated
and indigent.
Virginia SB 1366 (2001)
Allows convicted felons to motion for DNA testing if the evidence was not available at trial or not
previously tested, has not been tampered with and testing is relevant to establish innocence. Prohibits
appeals if denied testing.
Washington SHB 2491 (2000)
Provides a procedure to conduct deoxyribonucleic acid testing of evidence for persons sentenced to death
or life imprisonment.
Washington Substitute SB 5896 (2001)
Expands list of offenders eligible for post-conviction DNA testing from those sentenced to death or life
without parole to any incarcerated felon.
Washington HB 1391 (2003)
Allows a convicted felon to appeal a denial of post-conviction DNA testing in the event the court ruled
that such testing did not meet acceptable scientific standards or DNA technology was not sufficient at
that time.
Washington H 1014 (2005)
Requires that beginning January 1, 2005, a person must raise DNA evidence issues at trial or on appeal.
Sets out procedure via Office of Public Defense and with screening of requests by prosecutors.
West Virginia HB 4176 (2004)
Establishes a right to post-conviction DNA testing for persons imprisoned for a felony.
Preservation
Offender motions for post-conviction DNA testing depend upon availability of crime scene evidence
that may be tested. Some of the laws summarized above have included requirements for preservation of
evidence. Others laws, such as these below (not a comprehensive list) separately set certain requirements
for storage and preservation of the evidence that may be subject to DNA testing:
Arizona SB 1353 (2000)
Requires the prosecution preserve evidence that could be subject to DNA testing for the period of the
proceeding. Requires the department of public safety maintain blood samples for at least thirty-five
years.
California SB 1342 (2000)
Requires the preservation of evidence that may be subject to testing for the period of the defendant’s
incarceration.
Illinois HB 4593 (2000)
Requires preservation of physical evidence during the prosecution of certain offenses. Requires the
retention of evidence after a trial for a period of time depending upon the offense.
Michigan SB 1395 (2000)
Requires preservation of any biological material for which any person may post-conviction DNA petition.
Other actions
Other significant legislation in states establish standards and/or procedures for investigating
conduct at forensic labs, to help prevent wrongful convictions brought about by inadequate handling or
testing of forensic evidence. This NY law addresses:
New York Executive Law 49 B § 995
Creates in executive department the commission on forensic science, a 14-member body to establish
approved forensic methodologies, minimum standards and a program of accreditation for all forensic labs
in the state, qualifications for lab personnel. Performs inspections and establishes quality assurance
procedures.
Texas act in 2005 is a recent, prominent example:
Texas HB 1068 (2005)
Creates the Texas Forensic Science Commission to develop and implement a system for misconduct reporting
and investigation for all forensic labs and related facilities. Requires that physical evidence in a
criminal action be subject to forensic analysis in a facility accredited by the Department of Public
Safety. Allows the DNA database to be used in the defense of a criminal case, in forensic validation
studies or to retest for validation or update an original analysis. Requires collection of samples from
all qualifying adult and juvenile felons imprisoned in TDCJ facilities, and those under contract with
TDCJ.
In an act not specific to DNA but important to claims of innocence, North Carolina became the first
state in 2006 to establish an Innocence Inquiry Commission.
North Carolina HB 1323 (2006)
Establishes the North Carolina Innocence Inquiry Commission, to investigate and determine credible claims
of factual innocence. The independent Commission is under the Judicial Department, with the AOC
providing administrative support. Eight members make up the Commission, as well as a staff director.
Establishes that claims of actual innocence may be referred by any court, person or agency. Includes
defendant right to counsel, victim notice and the option of public hearings if a formal inquiry of a
case is accepted by the Commission. Disposition of innocence claim will be by vote of Commission members
and a vote of 5 of the 8 will send the case back for judicial review, except in cases where the convicted
person entered and was convicted on a guilty plea which requires 8 of the 8 members to send the case back
to the superior court. Requires records of Commission proceedings, but excludes these as public records.
Three-judge panels are to be appointed to review cases sent by the Innocence Inquiry Commission, and the
panel will rule as to whether the convicted person have proved by clear and convincing evidence that they
are innocent of the charges, with unanimous agreement of the three judges required. Once such case is
heard by the Commission and a three-judge panel, the case is not subject to further review by appeal,
motion or otherwise.
For more information contact NCSL’s Criminal Justice Program in Denver, Colo.,
telephone (303) 364-7700 or email cj-info@ncsl.org.
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