TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING

SEC. 101. FINDINGS AND PURPOSES.

(a) FINDINGS- Congress makes the following findings:

(1) Over the past decade, deoxyribonucleic acid testing (referred to in this section as `DNA testing') has emerged as the most reliable forensic technique for identifying criminals when biological material is left at a crime scene.

(2) Because of its scientific precision, DNA testing can, in some cases, conclusively establish the guilt or innocence of a criminal defendant. In other cases, DNA testing may not conclusively establish guilt or innocence, but may have significant probative value to a finder of fact.

(3) While DNA testing is increasingly commonplace in pretrial investigations today, it was not widely available in cases tried prior to 1994. Moreover, new forensic DNA testing procedures have made it possible to get results from minute samples that could not previously be tested, and to obtain more informative and accurate results than earlier forms of forensic DNA testing could produce. Consequently, in some cases convicted inmates have been exonerated by new DNA tests after earlier tests had failed to produce definitive results.

(4) Since DNA testing is often feasible on relevant biological material that is decades old, it can, in some circumstances, prove that a conviction that predated the development of DNA testing was based upon incorrect factual findings. Uniquely, DNA evidence showing innocence, produced decades after a conviction, provides a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial. DNA testing, therefore, can and has resulted in the post-conviction exoneration of innocent men and women.

(5) In the past decade, there have been more than 65 post-conviction exonerations in the United States and Canada based upon DNA testing. At least 8 individuals sentenced to death have been exonerated through post-conviction DNA testing, some of whom came within days of being executed.

(6) The 2 States that have established statutory processes for post-conviction DNA testing, Illinois and New York, have the most post-conviction DNA exonerations, 14 and 7, respectively.

(7) The advent of DNA testing raises serious concerns regarding the prevalence of wrongful convictions, especially wrongful convictions arising out of mistaken eyewitness identification testimony. According to a 1996 Department of Justice study entitled `Convicted by Juries, Exonerated by Science: Case Studies of Post-Conviction DNA Exonerations', in approximately 20 to 30 percent of the cases referred for DNA testing, the results excluded the primary suspect. Without DNA testing, many of these individuals might have been wrongfully convicted.

(8) Laws in more than 30 States require that a motion for a new trial based on newly discovered evidence of innocence be filed within 6 months or

less. These laws are premised on the belief--inapplicable to DNA testing--that evidence becomes less reliable over time. Such time limits have been used to deny inmates access to DNA testing, even when guilt or innocence could be conclusively established by such testing. For example, in Dedge v. Florida, 723 So.2d 322 (Fla. Dist. Ct. App. 1998), the court without opinion affirmed the denial of a motion to release trial evidence for the purpose of DNA testing. The trial court denied the motion as procedurally barred under the 2-year limitation on claims of newly discovered evidence established by the State of Florida, which has since adopted a 6-month limitation on such claims.

(9) Even when DNA testing has been done and has persuasively demonstrated the actual innocence of an inmate, States have sometimes relied on time limits and other procedural barriers to deny release.

(10) The National Commission on the Future of DNA Evidence, a Federal panel established by the Department of Justice and comprised of law enforcement, judicial, and scientific experts, has issued a report entitled `Recommendations For Handling Post-Conviction DNA Applications' that urges post-conviction DNA testing in 2 carefully defined categories of cases, notwithstanding procedural rules that could be invoked to preclude such testing, and notwithstanding the inability of the inmate to pay for the testing.

(11) The number of cases in which post-conviction DNA testing is appropriate is relatively small and will decrease as pretrial testing becomes more common and accessible.

(12) The cost of DNA testing has also decreased in recent years. The typical case, involving the analysis of 8 samples, currently costs between $2,400 and $5,000, depending upon jurisdictional differences in personnel costs.

(13) In 1994, Congress authorized funding to improve the quality and availability of DNA analysis for law enforcement identification purposes. Since then, States have been awarded over $50,000,000 in DNA-related grants.

(14) Although the Supreme Court has never announced a standard for addressing constitutional claims of innocence, in Herrera v. Collins, 506 U.S. 390 (1993), a majority of the Court expressed the view that, `a truly persuasive demonstration of `actual innocence' made after trial would render imposition of punishment by a State unconstitutional.

(15) If biological material is not subjected to DNA testing in appropriate cases, there is a significant risk that persuasive evidence of innocence will not be detected and, accordingly, that innocent persons will be unconstitutionally incarcerated or executed.

(16) To prevent violations of the Constitution of the United States that the Supreme Court anticipated in Herrera v. Collins, it is necessary and proper to enact national legislation that ensures that the Federal Government and the States will permit DNA testing in appropriate cases.

(17) There is also a compelling need to ensure the preservation of biological material for post-conviction DNA testing. Since 1992, the Innocence Project at the Benjamin N. Cardozo School of Law has received thousands of letters from inmates who claim that DNA testing could prove them innocent. In over 70 percent of those cases in which DNA testing could have been dispositive of guilt or innocence if the biological material were available, the material had been destroyed or lost. In two-thirds of the cases in which the evidence was found, and DNA testing conducted, the results have exonerated the inmate.

(18) In at least 14 cases, post-conviction DNA testing that has exonerated a wrongly convicted person has also provided evidence leading to the apprehension of the actual perpetrator, thereby enhancing public safety. This would not have been possible if the biological evidence had been destroyed.

(b) PURPOSES- The purposes of this title are to--

(1) substantially implement the Recommendations of the National Commission on the Future of DNA Evidence in the Federal criminal justice system, by ensuring the availability of DNA testing in appropriate cases;

(2) prevent the imposition of unconstitutional punishments through the exercise of power granted by clause 1 of section 8 and clause 2 of section 9 of article I of the Constitution of the United States and section 5 of the 14th amendment to the Constitution of the United States; and

(3) ensure that wrongfully convicted persons have an opportunity to establish their innocence through DNA testing, by requiring the preservation of DNA evidence for a limited period.

SEC. 102. DNA TESTING IN FEDERAL CRIMINAL JUSTICE SYSTEM.

(a) IN GENERAL- Part VI of title 28, United States Code, is amended by inserting after chapter 155 the following:

`CHAPTER 156--DNA TESTING

`Sec.

`2291. DNA testing.

`2292. Preservation of biological material.

`Sec. 2291. DNA testing

`(a) APPLICATION- Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court established by an Act of Congress may, at any time after conviction, apply to the court that entered the judgment for forensic DNA testing of any biological material that--

`(1) is related to the investigation or prosecution that resulted in the judgment;

`(2) is in the actual or constructive possession of the Government; and

`(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.

`(b) NOTICE TO GOVERNMENT-

`(1) IN GENERAL- The court shall notify the Government of an application made under subsection (a) and shall afford the Government an opportunity to respond.

`(2) PRESERVATION OF REMAINING BIOLOGICAL MATERIAL- Upon receiving notice of an application made under subsection (a), the Government shall take such steps as are necessary to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section.

`(c) ORDER- The court shall order DNA testing pursuant to an application made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the applicant that the applicant was wrongfully convicted or sentenced.

`(d) COST- The cost of DNA testing ordered under subsection (c) shall be borne by the Government 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.

`(e) COUNSEL- The court may at any time appoint counsel for an indigent applicant under this section.

`(f) POST-TESTING PROCEDURES-

`(1) PROCEDURES FOLLOWING RESULTS UNFAVORABLE TO APPLICANT- If the results of DNA testing conducted under this section are unfavorable to the applicant, the court--

`(A) shall dismiss the application; and

`(B) in the case of an applicant who is not indigent, may assess the applicant for the cost of such testing.

`(2) PROCEDURES FOLLOWING RESULTS FAVORABLE TO APPLICANT- If the results of DNA testing conducted under this section are favorable to the applicant, the court shall--

`(A) order a hearing, notwithstanding any provision of law that would bar such a hearing; and

`(B) enter any order that serves the interests of justice, including an order--

`(i) vacating and setting aside the judgment;

`(ii) discharging the applicant if the applicant is in custody;

`(iii) resentencing the applicant; or

`(iv) granting a new trial.

`(g) RULE OF CONSTRUCTION- Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other post-conviction relief under any other provision of law.

`Sec. 2292. Preservation of biological material

`(a) IN GENERAL- Notwithstanding any other provision of law and subject to subsection (b), the Government shall preserve any biological material secured in connection with a criminal case for such period of time as any person remains incarcerated in connection with that case.

`(b) EXCEPTION- The Government may destroy biological material before the expiration of the period of time described in subsection (a) if--

`(1) the Government notifies any person who remains incarcerated in connection with the case, and any counsel of record or public defender organization for the judicial district in which the judgment of conviction for such person was entered, of--

`(A) the intention of the Government to destroy the material; and

`(B) the provisions of this chapter;

`(2) no person makes an application under section 2291(a) within 90 days of receiving notice under paragraph (1) of this subsection; and

`(3) no other provision of law requires that such biological material be preserved.'.

(b) TECHNICAL AND CONFORMING AMENDMENT- The analysis for part VI of title 28, United States Code, is amended by inserting after the item relating to chapter 155 the following:

2291'.

SEC. 103. DNA TESTING IN STATE CRIMINAL JUSTICE SYSTEMS.

(a) DNA IDENTIFICATION GRANT PROGRAM- Section 2403 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796kk-2) is amended--

(1) in paragraph (2)--

(A) in the matter preceding subparagraph (A), by striking `shall' and inserting `will';

(B) in subparagraph (C), by striking `is charged' and inserting `was charged or convicted'; and

(C) in subparagraph (D), by striking `and' at the end;

(2) in paragraph (3)--

(A) by striking `shall' and inserting `will'; and

(B) by striking the period at the end and inserting `; and'; and

(3) by adding at the end the following:

`(4) the State will--

`(A) preserve all biological material secured in connection with a State criminal case for not less than the period of time that biological material is required to be preserved under section 2292 of title 28, United States Code, in the case of a person incarcerated in connection with a Federal criminal case; and

`(B) make DNA testing available to any person convicted in State court to the same extent, and under the same conditions, that DNA testing is available under section 2291 of title 28, United States Code, to any person convicted in a court established by an Act of Congress.'.

(b) DRUG CONTROL AND SYSTEM IMPROVEMENT GRANT PROGRAM- Section 503(a)(12) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3753(a)(12)) is amended--

(1) in subparagraph (B)--

(A) in clause (iii), by striking `is charged' and inserting `was charged or convicted'; and

(B) in clause (iv), by striking `and' at the end;

(2) in subparagraph (C), by striking the period at the end and inserting `; and'; and

(3) by adding at the end the following:

`(D) the State will--

`(i) preserve all biological material secured in connection with a State criminal case for not less than the period of time that biological material is required to be preserved under section 2292 of title 28, United States Code, in the case of a person incarcerated in connection with a Federal criminal case; and

`(ii) make DNA testing available to a person convicted in State court to the same extent, and under the same conditions, that DNA testing is available under section 2291 of title 28, United States Code, to a person convicted in a court established by an Act of Congress.'.

(c) PUBLIC SAFETY AND COMMUNITY POLICING GRANT PROGRAM- Section 1702(c) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd-1(c)) is amended--

(1) in paragraph (10), by striking `and' at the end;

(2) in paragraph (11), by striking the period at the end and inserting `; and'; and

(3) by adding at the end the following:

`(12) if any part of funds received from a grant made under this subchapter is to be used to develop or improve a DNA analysis capability in a forensic laboratory, or to obtain or analyze DNA samples for inclusion in the Combined DNA Index System (CODIS), certify that--

`(A) DNA analyses performed at such laboratory will satisfy or exceed the current standards for a quality assurance program for DNA analysis, issued by the Director of the Federal Bureau of Investigation under section 210303 of the DNA Identification Act of 1994 (42 U.S.C. 14131);

`(B) DNA samples and analyses obtained and performed by such laboratory will be accessible only--

`(i) to criminal justice agencies for law enforcement purposes;

`(ii) in judicial proceedings, if otherwise admissible under applicable statutes and rules;

`(iii) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which the defendant was charged or convicted; or

`(iv) if personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes;

`(C) the laboratory and each analyst performing DNA analyses at the laboratory will undergo, at regular intervals not exceeding 180 days, external proficiency testing by a DNA proficiency testing program that meets the standards issued under section 210303 of the DNA Identification Act of 1994 (42 U.S.C. 14131); and

`(D) the State will--

`(i) preserve all biological material secured in connection with a State criminal case for not less than the period of time that biological material is required to be preserved under section 2292 of title 28, United States Code, in the case of a person incarcerated in connection with a Federal criminal case; and

`(ii) make DNA testing available to any person convicted in State court to the same extent, and under the same conditions, that DNA testing is available under section 2291 of title 28, United States Code, to a person convicted in a court established by an Act of Congress.'.

SEC. 104. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH AMENDMENT.

(a) REQUEST FOR DNA TESTING-

(1) IN GENERAL- No State shall deny a request, made by a person in custody resulting from a State court judgment, for DNA testing of biological material that--

(A) is related to the investigation or prosecution that resulted in the conviction of the person or the sentence imposed on the person;

(B) is in the actual or constructive possession of the State; and

(C) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.

(2) EXCEPTION- A State may deny a request under paragraph (1) upon a judicial determination that testing could not produce noncumulative evidence establishing a reasonable probability that the person was wrongfully convicted or sentenced.

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