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Legislation Document
SPONSOR:
Sen. Hoffner & Rep. Bush
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 214
AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO BIOLOGICAL EVIDENCE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend § 4701A, Title 29 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline and by redesignating accordingly:
§ 4701A. Definitions. [For application of this section, see 84 Del. Laws, c. 261, § 16].
( ) “Biological evidence” means any item that may contain blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or other identifiable biological material that was collected as part of a criminal investigation or may reasonably be used to incriminate or exculpate any person for an offense. This definition applies whether that material is cataloged separately (e.g., on a slide, swab, or in a test tube) or is present on other evidence (including items such as clothing, ligatures, bedding or other household material, drinking cups, and cigarettes).
( ) “Custody” means persons currently incarcerated, civilly committed, on parole or probation, or subject to sex offender registration.
( ) “State” refers to any governmental or public entity within Delaware, including all private entities that perform such functions, and its officials or employees, including law enforcement agencies, prosecutors’ offices, courts, public hospitals, crime laboratories, and any other entity or individual charged with the collection, storage, or retrieval of biological evidence.
Section 2. Amend § 4713B, Title 29 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 4713B. Preservation and destruction of biological evidence.
(a) Preservation of biological evidence.
(1) The State shall preserve all biological evidence that was in its possession during the investigation and prosecution of the case and that may contain biological material. The State shall preserve all biological evidence for the period of time that the crime remains unsolved or for the period of time that any person convicted of the crime, regardless of whether the person pleaded guilty, remains in custody, whichever is longer.
(2) The State may not destroy biological evidence secured in relation to an investigation or prosecution of a crime, if any additional co-defendant, convicted of the same crime, is in custody, and shall preserve such evidence while any co-defendant remains in custody.
(3) The State shall retain evidence in a manner that prevents contamination, degradation, or reduction of any biological material contained in or included on the evidence.
(4) Upon written request by the defendant, the State shall prepare an inventory of any biological evidence that has been preserved in connection with the defendant’s criminal case.
(b) Destruction of biological evidence.
(1) The State may not destroy evidence that may include any biological material before the expiration of the time period specified in subsection (a) of this section unless all of the following are satisfied:
a. It is more than 5 years after the date the criminal conviction became final and all appeals are exhausted.
b. The biological evidence in custody is not in relation to an investigation or prosecution of a Class A to Class E felony.
c. No other provision of federal or state law requires the State to preserve the biological evidence.
d. The State sends certified delivery of written notice of its intent to destroy the evidence to:
i. All persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to the evidence in question.
ii. The attorney of record for each person in custody and, if the attorney of record is unavailable to receive notice, the Office of Defense Services.
iii. The Attorney General.
iv. Any other entity as required by state law.
e. No person who is notified pursuant to paragraph (b)(1)d. of this section does any of the following within 180 days after the date on which the person received the notice:
i. Files a motion for testing of evidence pursuant to § 4504 of Title 11.
ii. Submits a written request for retention of evidence to the State entity that provided notice of its intent to destroy evidence.
(2) If, after providing notice of its intent to destroy evidence pursuant to paragraph (b)(1)d. of this section, the State receives a written request for retention of the evidence, the State shall retain the evidence while any person remains in custody as a result of a criminal conviction, delinquency adjudication, or commitment related to the evidence in question.
(3) The State is not required to preserve physical evidence that is of such a size, bulk, or physical character as to render retention impracticable. When retention is impracticable, the State shall remove and preserve portions of the material evidence that may contain biological evidence related to the offense, including areas of high contact and stained areas. The evidence shall be preserved in a quantity sufficient to permit future DNA testing, and that prevents contamination, degradation, or reduction of any biological material contained in or on the evidence, before returning or disposing of the physical evidence.
(4) If the State is asked to produce biological evidence that cannot be located and whose preservation was required under this section, the chief evidence custodian assigned to the entity charged with preservation of the evidence shall provide an affidavit, under penalty of perjury, that describes the efforts taken to locate the evidence and that the evidence could not be located.
(c) Remedies for Noncompliance.
(1) If the State is unable to produce biological evidence, the court shall hold a hearing to determine whether the biological evidence was destroyed in violation of the provisions of this section and to determine whether the failure to produce evidence was the result of intentional and willful destruction.
a. If the court determines at the hearing that the failure to produce evidence was the result of intentional and willful destruction, the court shall do all of the following:
i. Order a postconviction hearing.
ii. At the postconviction hearing, infer that the results of the postconviction DNA testing would have been favorable to the petitioner.
iii. Impose other appropriate sanctions and order appropriate remedies.
b. If the court determines at the hearing that the failure to produce evidence was the result of negligence or non-willful destruction, the court may provide the appropriate recourse, including:
i. Ordering a postconviction hearing.
ii. Imposing appropriate sanctions and ordering appropriate remedies.
Section 3.
Within 120 days of enactment of this Act, the Delaware Police Accreditation Commission and Division of Forensic Science shall, in consultation with the Department of Justice Criminal Division and Office of Defense Services, study, promulgate, and implement procedures that effectuate the legislative intent of this Act regarding the proper preservation of biological evidence, which includes:
(a) Devising standards regarding the proper collection, retention, and cataloging of biological evidence for ongoing investigations and prosecutions.
(b) Adopting practices, protocols, and models for the cataloging and accessibility of preserved biological evidence already in the State’s possession.
(c) Developing a program ensuring that all evidence custodians in Delaware are notified of the requirements of and trained on the methods and procedures referenced in this Act.
Section 4.
This Act takes effect 30 days after its enactment into law.
SYNOPSIS
This Act requires the State to preserve all biological evidence in its custody that is secured in relation to an investigation or prosecution of a crime, for the period of time that the crime remains unsolved or the period of time that a person convicted of the crime remains in custody, regardless of whether the person pleaded guilty. “Biological evidence” in this context includes any item that may contain identifiable biological material that was collected as part of a criminal investigation or that may reasonably be used to incriminate or exculpate a person.
The State may destroy evidence that may contain biological material before the expiration of those time periods if all of the following are true: (1) more than 5 years have elapsed since the criminal conviction became final and all appeals are exhausted; (2) the evidence is not in relation to an investigation or prosecution of a Class A to Class E felony; (3) no other provision of federal or state law requires the State to preserve the evidence; (4) the State sends certified delivery of written notice of its intent to destroy the evidence to certain specified recipients, including any person who remains in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to the evidence; and (5) no person who has received such notice, within 180 days of receiving the notice, files a motion for testing of evidence under § 4504 of Title 11 of the Delaware Code or submits a written request for retention of the evidence. In addition, the State is not required to preserve physical evidence that is of a size, bulk, or physical character that makes retention impracticable, but in that case, the State must remove and preserve portions of the evidence that may contain biological evidence related to the offense.
If the State is called upon to produce biological evidence that cannot be located and whose preservation was required under the Act, then the court must hold a hearing to determine whether the failure to produce evidence was the result of intentional and willful destruction. If so, the court then must order a postconviction hearing, at which the court will infer that the results of the postconviction DNA testing would have been favorable to the petitioner, and impose other appropriate sanctions and order appropriate remedies.
In addition, the Act requires the Delaware Police Accreditation Commission and Division of Forensic Science to study, promulgate, and implement procedures that effectuate the legislative intent of the Act regarding the proper preservation of biological evidence.
The Act takes effect 30 days after its enactment into law.
Author: Senator Hoffner