Chief Sponsor: Lyle W. Hillyard

House Sponsor: Steve Eliason


8     General Description:
9          This bill modifies the Judicial Code regarding postconviction remedies.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the requirements to obtain postconviction DNA testing by providing that
13     the new evidence shall establish by a reasonable probability that the petitioner
14     would not have been convicted, or would have received a lesser sentence, rather
15     than requiring that the evidence will establish factual innocence; and
16          ▸     provides that after the Utah attorney general responds to a petition for
17     postconviction DNA testing, the petitioner may reply to the attorney general's
18     response before the court makes a determination regarding allowing the testing.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          78B-9-301, as last amended by Laws of Utah 2010, Chapter 405

27     Be it enacted by the Legislature of the state of Utah:
28          Section 1. Section 78B-9-301 is amended to read:

29          78B-9-301. Postconviction testing of DNA -- Petition -- Sufficient allegations --
30     Notification of victim.
31          (1) As used in this part:
32          (a) "DNA" means deoxyribonucleic acid.
33          (b) "Factually innocent" has the same definition as in Section 78B-9-402.
34          (2) A person convicted of a felony offense may at any time file a petition for
35     postconviction DNA testing in the trial court that entered the judgment of conviction if the
36     person asserts factual innocence under oath and the petition alleges:
37          (a) evidence has been obtained regarding the person's case which is still in existence
38     and is in a condition that allows DNA testing to be conducted;
39          (b) the chain of custody is sufficient to establish that the evidence has not been altered
40     in any material aspect;
41          (c) the person identifies the specific evidence to be tested and states a theory of
42     defense, not inconsistent with theories previously asserted at trial, that the requested DNA
43     testing would support;
44          (d) the evidence was not previously subjected to DNA testing, or if the evidence was
45     tested previously, the evidence was not subjected to the testing that is now requested, and the
46     new testing may resolve an issue not resolved by the prior testing;
47          (e) the proposed DNA testing is generally accepted as valid in the scientific field or is
48     otherwise admissible under Utah law;
49          (f) the evidence that is the subject of the request for testing:
50          (i) has the potential to produce new, noncumulative evidence [that will establish the
51     person's factual innocence]; and
52          (ii) there is a reasonable probability that the defendant would not have been convicted
53     or would have received a lesser sentence if the evidence had been presented at the original trial;
54     and
55          (g) the person is aware of the consequences of filing the petition, including:

56          (i) those specified in Sections 78B-9-302 and 78B-9-304; and
57          (ii) that the person is waiving any statute of limitations in all jurisdictions as to any
58     felony offense the person has committed which is identified through DNA database
59     comparison.
60          (3) The petition under Subsection (2) shall comply with Rule 65C, Utah Rules of Civil
61     Procedure, including providing the underlying criminal case number.
62          (4) The court may not order DNA testing in cases in which DNA testing was available
63     at the time of trial and the person did not request DNA testing or present DNA evidence for
64     tactical reasons.
65          (5) After a petition is filed under this section, prosecutors, law enforcement officers,
66     and crime laboratory personnel have a duty to cooperate in preserving evidence and in
67     determining the sufficiency of the chain of custody of the evidence which may be subject to
68     DNA testing.
69          (6) (a) A person who files a petition under this section shall serve notice upon the
70     office of the prosecutor who obtained the conviction, and upon the Utah attorney general. The
71     attorney general shall, within 30 days after receipt of service of a copy of the petition, or within
72     any additional period of time the court allows, answer or otherwise respond to all proceedings
73     initiated under this part.
74          (b) After the attorney general [is given an opportunity to respond to a petition for
75     postconviction DNA testing,] responds under Subsection (6)(a), the petitioner has the right to
76     reply to the response of the attorney general.
77          (c) After the attorney general and the petitioner have filed a response and reply in
78     compliance with Subsection (6)(b), the court shall order DNA testing if it finds by a
79     preponderance of the evidence that all criteria of Subsection (2) have been met.
80          (7) (a) If the court grants the petition for testing, the DNA test shall be performed by
81     the Utah State Crime Laboratory within the Criminal Investigations and Technical Services
82     Division created in Section 53-10-103, unless the person establishes that the state crime

83     laboratory has a conflict of interest or does not have the capability to perform the necessary
84     testing.
85          (b) If the court orders that the testing be conducted by any laboratory other than the
86     state crime laboratory, the court shall require that the testing be performed:
87          (i) under reasonable conditions designed to protect the state's interests in the integrity
88     of the evidence; and
89          (ii) according to accepted scientific standards and procedures.
90          (8) (a) DNA testing under this section shall be paid for from funds appropriated to the
91     Department of Public Safety under Subsection 53-10-407(4)(d)(ii) from the DNA Specimen
92     Restricted Account created in Section 53-10-407 if:
93          (i) the court ordered the DNA testing under this section;
94          (ii) the Utah State Crime Laboratory within the Criminal Investigations and Technical
95     Services Division has a conflict of interest or does not have the capability to perform the
96     necessary testing; and
97          (iii) the petitioner who has filed for postconviction DNA testing under Section
98     78B-9-201 is serving a sentence of imprisonment and is indigent.
99          (b) Under this Subsection (8), costs of DNA testing include those necessary to
100     transport the evidence, prepare samples for analysis, analyze the evidence, and prepare reports
101     of findings.
102          (9) If the person is serving a sentence of imprisonment and is indigent, the state shall
103     pay for the costs of the testing under this part, but if the result is not favorable to the person the
104     court may order the person to reimburse the state for the costs of the testing, pursuant to the
105     provisions of Subsections 78B-9-302(4) and 78B-9-304(1)(b).
106          (10) Any victim of the crime regarding which the person petitions for DNA testing,
107     who has elected to receive notice under Section 77-38-3 shall be notified by the state's attorney
108     of any hearing regarding the petition and testing, even though the hearing is a civil proceeding.