AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO POSTCONVICTION REMEDY.

Legislation Document

SPONSOR:

Sen. Hoffner & Rep. Bush

Sen. Sokola; Reps. Gorman, Griffith, Morrison, Ross Levin

DELAWARE STATE SENATE

153rd GENERAL ASSEMBLY

SENATE BILL NO. 57

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO POSTCONVICTION REMEDY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 45, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 4504. Postconviction remedy.

(a)

Except at a time when direct appellate review is available, and subject to the time limitations set forth in this subsection,

At any time,

a person convicted of a crime may file in the court that entered the judgment of conviction a motion requesting the performance of forensic DNA testing to demonstrate the person’s actual innocence.

Any such motion may not be filed more than 3 years after the judgment of conviction is final.

The motion

may

shall

be granted if

all of the following apply

:

(1) The testing is to be performed on evidence secured in relation to the trial which resulted in the

conviction;

conviction.

(2) The evidence was not previously subject to testing because the technology for testing was not available at the time of the

trial;

trial or date of entry of a plea, or although the evidence was previously subjected to testing, it can be subjected to additional testing that provides a reasonable likelihood of results that are more probative than the results of the previous test.

(3) The movant presents a prima facie case that identity was

an issue in the trial;

at issue.

(4) The movant presents a prima facie case that the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, degraded, contaminated, altered or replaced in any material

aspect;

aspect.

(5) The requested testing has the scientific potential to produce new, noncumulative evidence materially relevant to the person’s assertion of

actual innocence; and

actual innocence.

(6) The requested testing employs a scientific method which is generally accepted within the relevant scientific community, and which satisfies the pertinent Delaware Rules of Evidence concerning the admission of scientific testimony or evidence.

(b)

Except at a time when direct appellate review is available, a person

A person

convicted of a crime who claims that DNA evidence

not available at trial

establishes the petitioner’s actual innocence may commence a proceeding to secure relief by filing a motion for a new trial in the court that entered the judgment of conviction. The court may grant a new trial if the person establishes

by clear and convincing evidence

by reasonable probability

that no reasonable trier of fact

, considering the evidence presented at trial, evidence that was available at trial but was not presented or was excluded, and the evidence obtained pursuant to subsection (a) of this section

would have convicted the person.

(c) The court shall impose reasonable conditions on the testing designed to protect the state’s interests in the integrity of the evidence and the testing process.

(d) Any motion filed pursuant to this section shall be served upon the State. The State shall have an absolute right to appeal to an appellate court any order granting a motion for a new trial pursuant to this section.

(e) The cost of DNA testing ordered under subsection (a) of 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 means to pay.

SYNOPSIS

This Act updates Title 11 of the Delaware Code concerning postconviction remedies relating to DNA testing and DNA evidence.

Specifically, the Act removes the limitations currently in the Delaware Code (1) that a person convicted of a crime must seek DNA testing within 3 years after the conviction is final and (2) that a person convicted of a crime may not seek DNA testing or a new trial based on DNA evidence if direct appellate review is available.

In addition, the Act requires the court to grant a motion for the performance of DNA testing if certain criteria are satisfied. The Act also permits persons who entered a guilty plea, in addition to persons convicted of a crime, to seek DNA testing, and allows for DNA testing where evidence was previously subjected to testing but additional testing of that evidence provides a reasonable likelihood of results that are more probative.

The Act changes the standard applicable to a motion for a new trial based on DNA evidence. Instead of requiring a showing by clear and convincing evidence that no reasonable trier of fact would have convicted the person, under the Act, a reasonable probability that no reasonable trier of fact would have convicted the person must be established.

Finally, the Act makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

Author: Senator Hoffner