act-2002-0-109•Pennsylvania Act 2002-109 — JUDICIAL CODE (42 PA.C.S.) - AMEND POSTCONVICTION DNA TESTING
Pennsylvania Act 2002-109 — JUDICIAL CODE (42 PA.C.S.) - AMEND POSTCONVICTION DNA TESTING
act-2002-0-1092002 Pa. Act 109Law
Act text
JUDICIAL CODE (42 PA.C.S.) - AMEND POSTCONVICTION DNA TESTING
Act of Jul. 10, 2002, P.L. 745, No. 109 Cl. 42
Session of 2002
No. 2002-109
SB 589
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, providing for
postconviction DNA testing.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 42 of the Pennsylvania Consolidated
Statutes is amended by adding a section to read:
§ 9543.1. Postconviction DNA testing.
(a) Motion.--
(1) An individual convicted of a criminal offense in a
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 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
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.
(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.
(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) assert the applicant's actual innocence of the
offense for which the applicant was convicted; 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
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).
(d) Order.--
(1) Except as provided in paragraph (2), the court shall
order the testing requested in a motion under subsection (a)
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 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
the circumstances set forth in subsection (c)(1)(iv).
(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) if the Commonwealth and the applicant are
unable to agree on a laboratory, a laboratory selected 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.
(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 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
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).
(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).
"DNA." Deoxyribonucleic acid.
Section 2. This act shall take effect in 60 days.
APPROVED--The 10th day of July, A. D. 2002.
MARK S. SCHWEIKER
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