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United States Federal Law: Justice for All Act of 2004

Reference

No statute

No statute*

Ariz. Rev. Stat. § 13-4240

Ark. Code Ann. §§ 16-112-201 to 16-112-208

Cal. Penal Code § 1405

Colo. Rev. Stat. Ann. §§ 18-1-411 to 416

Public Act No. 03-242 (not yet codified)

Del. Code Ann. 11 § 4504

Fla. Stat. Ann. §§ 925.11, 943.3251

Ga. Code Ann. § 5-5-41

No statute

Idaho Code §§ 19-4901, 19-4902

725 lll. Comp. Stat. Ann. 5/116-3

Ind. Code Ann. §§ 35-38-7-1 to 19

No statute

Kan. Stat. Ann. § 21-2512

Ky. Rev. Stat. Ann. §§ 422.285, 422.287

La. Code Crim. Proc. Arts. 926.1, 924

Me. Rev. Stat. Ann. 15 §§ 2136-2138

Md. Code Ann., Crim. Proc. § 8-201

No statute

Mich. Comp. Laws Ann. § 770.16

Minn. Stat. Ann. §§ 590.01 to 590.06

No Statute

Mo. Ann. Stat. §§ 547.035, 650.055

Mont. Code Ann. §§ 46-21-110, 53-1-214

Neb. Rev. Stat. §§ 29-4119 to 29-4122

Nev. Rev. Stat. § 176.0918

No statute

N.J. Stat. Ann. § 2A:84A-32a

N.M. Stat. Ann. § 31-1A-2

N.Y. Crim. Pro. § 440.30

N.C. Gen. Stat. § 15A-269

No statute

Ohio Rev. Code Ann. §§ 2953.71 - 2953.83

Okla. Stat. Ann. 22 §§ 1371 - 1371.2

Or. Rev. Stat. Tit. 14, Ch. 138, Prec. 138.005

Pa. Stat. Ann. 42 § 9543.1

R.I. Gen. Laws §§ 10-9.1-11 to 10-9.1-12

No statute

Tenn. Code Ann. §§ 40-30-301 to 40-30-313

Tex. Crim. Proc. Ann. §§ Art. 64.01 to 64.05

Utah Code Ann. §§ 78-35a-301 to 302

No statute

Va. Code Ann. § 19.2-327.1

Wash. Rev. Code Ann. § 10.73.170

W. Va. Code Ann. § 15-2B-14

Wis. Stat. Ann. §§ 974.07

No statute

Title IV: Innocence Protection Act of 2004. Codified at 18 USC § 3600

Who May Apply for

***

A person who was convicted of and

A person convicted of a crime. [Note that "the executive

A person who was convicted of a felony and is currently

An incarcerated person currently serving his

Any person who was convicted of a crime and sentenced

A person convicted of a crime.

A person who has been tried and found guilty of committing a

A person convicted of a "serious violent felony" (e.g., murder or felony

***

Any person who has been convicted of, or sentenced for,

A defendant.

A person convicted of and sentenced for

***

A person in state custody convicted for murder or

A person who was convicted of and sentenced to

A person in custody after sentence following conviction

A person convicted of a crime under the laws of this State

A person who is convicted of a violation of § 2-201

***

A defendant convicted of a felony at trial before

A person convicted of a crime (who claims actual innocence).

***

A person in custody of the Department of Corrections

A person convicted of a felony who is serving a term of

A person in custody pursuant to a judgment of a court

A person convicted of a crime and under sentence

***

Any person who was convicted of a crime and is currently

A person convicted of a felony who claims that DNA

A defendant.

***

An inmate is eligible to request DNA testing only if all of the following apply:

An indigent person convicted of, and presently incarcerated

A person who:

An individual convicted of a criminal offense in a court of this

Any person who was convicted of and sentenced for a

***

A person convicted of and sentenced for the commission

A convicted person.

A person convicted of a felony offense.

***

Any person convicted of a felony.

A person in this state who has been convicted of a

A person convicted of a felony currently serving a term of

A person convicted of a crime, adjudicated delinquent, or

***

An individual under sentence of imprisonment or

Post-Conviction

sentenced for a felony offense.

director and the State Crime Laboratory shall give

serving a term of imprisonment.

sentence ("incarcerated" is defined in § 18-1-411).

to incarceration.

crime and has been sentenced by a court.

murder, armed robbery, rape, kidnapping, aggravated child molestation,

a crime, and who claims, subject to the provisions of

murder or a class A, B, or C felony.

rape.

death for a capital offense.

for a felony.

that carries the potential punishment of imprisonment of

(murder in the first degree), § 2-204 (murder in the second

January 8, 2001, who is serving a prison sentence

(who claims actual innocence).

incarceration.

judgment of a court.

of death.

serving a term of imprisonment.

evidence will establish his innocence.

(1) The offense for which the inmate claims to be an eligible inmate is

on, any felony offense, who alleges a claim of entitlement to

(1) Is incarcerated in a Department of Corrections institution

Commonwealth and serving a term of imprisonment or awaiting

crime and who is currently serving an actual term of

of first degree murder, second degree murder, aggravated

A guardian of a convicted person may submit motions for the

felony and is currently serving a term of imprisonment

imprisonment.

found not guilty by reason of a mental disease or defect.

death pursuant to a conviction for a Federal offense.

DNA Testing?

priority to claims including: (1) the opportunity for

aggravated sodomy, aggravated sexual battery--see § 17-10-6.1).

§ 19-4902 (b) through (f), that the petitioner is innocent of

Note that the provision expires on Aug. 31, 2007, except

at least 20 years and for which the person is in actual

degree), § 2-207 (manslaughter), or §§ 3-303 through

for the felony conviction.

a felony that was committed prior to 10/29/03, and the inmate was

forensic testing for purposes of demonstrating factual

as a result of a conviction for aggravated murder or a

execution because of a sentence of death.

imprisonment and incarceration pursuant to that sentence.

rape, aggravated sexual battery or rape of a child, the

convicted person under this chapter and is entitled to counsel

and who has been denied postconviction DNA testing.

Notwithstanding any other provision of law, the right to file a motion

conclusive or near conclusive proof through scientific

the offense.

for defendants sentenced to death prior to the effective

execution of a sentence of imprisonment or is subject to

3-306 (rape and sexual offense in the first and second

convicted by a judge or jury of that offense.

innocence.

person felony as defined in the rules of the Oregon Criminal

attempted commission of any of these offenses, any lesser

otherwise provided to a convicted person under this chapter.

for post-conviction DNA testing is absolute and may not be waived.

evidence that the person is actually innocent; and

date of the Act. On or after Aug. 31, 2007, a petitioner

a subject of imprisonment that is to be served in the

degrees) of the Criminal Law Article.

(2) The inmate was sentenced to a prison term or a sentence of

Justice Commission; or

included offense of these offenses, or, at the direction of

This prohibition applies to, but is not limited to, a waiver that is

(2) a lengthy sentence of imprisonment or a death

may request DNA testing under the rules for filing an

future because another sentence must be served first.

death for the felony and, on 10/29/03, was in prison serving that

(2) Is not in custody but has been convicted of aggravated

the trial judge, any other offense.

given as part of an agreement resulting in a plea of guilty or nolo

sentence." This apparently pertains only to testing

application for post-conviction relief as provided in

prison term or under that sentence of death.

murder, murder or a sex crime as defined in ORS 181.594.

contendre.

performed by the state crime lab.]

Article 930.4 or 930.8 of this Code.

(3) On the date on which the application is filed, the inmate has at least

one year remaining on the prison term (or is under a sentence of death).

(4) The inmate did not plead guilty or no contest to the offense. [Those

who did plead guilty/no contest may only apply with the express approval

of the prosecuting attorney (see § 2953.83).]

When Can One Apply?

***

A person can apply at any time.

The statute creates a rebuttable presumption of timeliness for a request filed within 36 months; however, a person cannot apply when direct appeal is available.

The statute does not establish a time limitation.

The convict can apply at any time during the term of his incarceration.

The convict can apply except at a time when direct appellate review is available, and subject to the time
limitations set forth in this subsection…Any such motion
[for DNA testing] may not be filed more than 3 years
after the judgment of conviction is final.

A petition for postsentencing DNA testing may be filed or considered:
(1) Within 4 years following the date that the judgment and sentence in the
case become final if no direct appeal is taken, within 4 years following
the date that the conviction is affirmed on direct appeal if direct appeal
is taken, within 4 years following the date that collateral counsel is
appointed or retained subsequent to the conviction being affirmed on direct
appeal in a capital case, or by October 1, 2005, whichever occurs later; or
(2) At any time if the facts on which the petition is predicated were unknown
to the petitioner or the petitioner's attorney and could not have been
ascertained by the exercise of due diligence.

The statute does not establish a time limitation for testing;
(however, note §§ 5-5-41 (a) and (b), which require that a good or
extraordinary reason be shown for a motion for a new trial made
more than 30 days after the entry of judgment in the criminal trial).

***

The petition must be filed by July 1, 2002, or within one year after the filing of the judgment of conviction, whichever is later.

The statute does not establish a time limitation.

***

The convict can petition at any time after conviction.

The convict can petition at any time [however, the court wil dismiss the petition if it finds that the application was not timely filed].

The court will dismiss the petition if it finds that the application was not timely filed.
Note that the provision expires on Aug. 31, 2007, except
for defendants sentenced to death prior to the effective
date of the Act. On or after Aug. 31, 2007, a petitioner
may request DNA testing under the rules for filing an
application for post-conviction relief as provided in
Article 930.4 or 930.8 of this Code.
-------
Note that the provision expires on Aug. 31, 2007, except
for defendants sentenced to death prior to the effective
date of the Act. On or after Aug. 31, 2007, a petitioner
may request DNA testing under the rules for filing an
application for post-conviction relief as provided in
Article 930.4 or 930.8 of this Code

The statute does not establish a time limitation.
-------
Note that a person who has taken a direct appeal from a
judgment of conviction or has initiated a collateral attack
upon the judgment of conviction under chapter 305-A is
not precluded from using the post-conviction DNA
analysis remedy, when certain conditions are met (See
§ 2138 subsection 12).

The statute does not establish a time limitation.

***

The petition shall be filed not later than Jan. 1, 2006.

The statute does not establish a time limitation.

***

The statute does not establish a time limitation.

A person can apply at any time after conviction.

The statute does not establish a time limitation.

***

The statute does not establish a time limitation.

The statute is effective until July 1, 2006, at which time it is subject to a delayed repeal.

The motion may be made at any time after the entry of a judgment (see §§ 440.10 and 440.20).

The statute does not establish a time limitation.

***

The eligible inmate shall submit the application to the court of common pleas not later than 10/29/04. No court of common pleas shall accept an application under this section after the expiration of the period of time specified in this division.

The Oklahoma Indigent Defense System DNA Forensic Testing Program is effective until July 1, 2005.

A motion requesting the performance of DNA testing under this section must be filed no later than Jan. 1, 2006.

The statute does not establish a time limitation, but § 9543(b) requires that the motion be made in a timely manner.

A person may file a petition at any time.

***

A person may file a petition at any time.

The statute does not establish a time limitation.

A person may file a petition at any time.

***

The statute does not limit the time in which a convict must file a petition for post-conviction DNA testing. However, as part of the petition, the convict must assert that he did not unreasonably delay the filing of the petition after the evidence or the new testing method became available.

On or before Dec. 31, 2004, a person may submit a request to the state Office of Public Defense. On and after Jan. 1,
2005, a person must raise the DNA issues at trial or on
appeal.

The statute does not establish a time limitation.

A person can apply at any time.

***

The motion must be made in a timely fashion. There shall be a rebuttable presumption of timeliness if the motion is made within 60 months of the enactment of the Act or within 36
months of conviction, whichever comes later. Such presumption may be rebutted upon a
showing that the motion is based solely on information used in a previously denied motion,
or of clear and convincing evidence that the filing is done solely to cause delay or harass.
There shall be a rebuttable presumption against timeliness for any motion not satisfying
the above time restrictions. Such presumption may be rebutted upon the court's finding:
(i) that the applicant was or is incompetent, leading to a delay in filing the motion; (ii) that the
evidence to be tested is newly discovered; (iii) that a denial of the motion would result in a
manifest injustice; or (iv) upon a showing of good cause.

In What Court Does

***

Not specified in the statute; however, general petitions

The court in which the conviction was entered.

The trial court that entered the judgment of conviction.

The district court in the district where the conviction

The sentencing court.

The court that entered the judgment of conviction.

***

The trial court that entered the judgment of conviction.

***

The trial court that entered the judgment of conviction.

The court that sentenced the petitioner for the offense.

***

The court that entered the judgment.

***

Proceedings for post-conviction review are filed in the

***

The circuit court for the county in which the

The district court that entered the judgment of conviction.

***

The sentencing court.

The court that entered the judgment of conviction.

The court that entered the judgment.

The district court for the county in which the petitioner

***

The trial court that entered the judgment of conviction.

The district court of the judicial district in which the

The statute does not specify a court.

The trial court that entered the judgment of conviction.

***

The court of common pleas that sentenced the inmate for the offense for

Not Applicable: a DNA Forensic Testing Program within the

The circuit court in which the judgment of conviction was

The sentencing court.

The superior court.

***

The convicting court.

The trial court that entered the judgment of conviction.

***

The circuit court that entered the original conviction.

Not Applicable: A person submits the request to the state

The trial court that entered the judgment of conviction.

The court in which the person was convicted, adjudicated

***

The court that entered the judgment of conviction.

One Apply?

for post-conviction relief are filed in the court in which

was secured.

Superior Court in the county in which the criminal

defendant was sentenced.

was convicted.

person was convicted.

which the inmate is an eligible inmate and is requesting DNA testing.

Oklahoma Indigent Defense System investigates and screens

entered.

Office of Public Defense, which will transmit the request to

delinquent, or found not guilty by reason of a mental

the conviction occurred (see §13-4234).

judgment was entered (See § 2129).

the felons' claims that scientific evidence will exonerate them.

the county prosecutor in the county where the conviction

disease or defect.

was obtained.

What Contents Must

***

A person may commence a proceeding to secure

The motion shall be verified by the convicted person under

A motion shall include specific facts sufficient

The petitioner shall state under penalties of perjury that

Although not explicitly stated in the statute, certain

The petition for postsentencing DNA testing must be made under oath by the

The motion shall be verified by the petitioner and shall show or provide

***

The petitioner must present a prima facie case that:

[See Review Criteria Below]

***

An application shall comply with the provisions of Article

***

A person who makes a motion for forensic testing must

***

The motion must allege facts under oath demonstrating:

The petition must include the petitioner's statement that the

***

The petition must include, without limitation, the date

***

The motion shall be verified by the convicted person under

As a condition to the district court's acceptance of his

If the motion is based upon the existence or occurrence of

***

The application is on a form prescribed by the attorney general. The

The System's services shall be available only upon the

The motion for DNA testing must be supported by an affidavit that:

In any motion, under penalty of perjury, the applicant shall:

A person filing a petition under this section must certify

***

A person must assert his actual innocence under oath and

***

The petitioner shall assert categorically and with specificity,

The state Office of Public Defense will transmit the request

The motion shall be verified by the convicted person under penalty of

***

[See Review Criteria Below]

the Application

relief by filing a petition, if the person claims that:

penalty of perjury and shall do all of the following:

to support a prima facie showing that post-

the requested testing is related to the investigation or

provisions indicate that the petitioner must claim that

sentenced defendant and must include the following:

the following:

(1) Identity was an issue in the trial which resulted in his or

926 of this Code and shall allege all of the following:

present a prima facie case that:

(1) The evidentiary criteria have been met;

petitioner was not the perpetrator of the felony that resulted in

scheduled for the execution, if it has been scheduled.

penalty of perjury and shall do all of the following:

petition, the petitioner shall:

facts, the motion papers must contain sworn allegations

eligible inmate shall specify on the application the offense or offenses for

submission of an affidavit of indigency to the System signed

(1) (a) For an incarcerated person, contains a statement that the

(1) (a) specify the evidence to be tested; (b) state that the applicant

under the pains and penalties of perjury that the requested

the petition must allege:

under oath:

to the county prosecutor in the county where the conviction

perjury and must do the following:

Contain?

(1) Scientific evidence not available at trial

(1) Explain why the identity of the perpetrator was, or should

conviction relief is warranted under the court's

that resulted in the petitioner's conviction and that the

the requested DNA testing can prove his actual

(1) A statement of the facts relied on in support of the petition, including a

(1) Evidence obtained in relation to the crime and subsequent indictment,

her conviction; and

(1) A factual explanation of why there is an articulable

(1) Identity was an issue in the trial; and

(2) Identity was an issue in the trial; and

the conviction and that DNA testing is relevant to the assertion

(1) Explain why the identity of the defendant was a significant

(1) Submit to DNA testing ordered by the district court; and

thereof, whether by the defendant or by another person

which the inmate is an eligible inmate and is requesting the DNA testing.

by an incarcerated person convicted of a felony and upon a

person is innocent of the offense for which the person was

consents to provide samples of bodily fluid for use in DNA testin; and

testing is related to the investigation or prosecution that

(1) The evidentiary criteria have been met;

(1) The facts to support: (a) that the evidentiary criteria have

was obtained, if DNA evidence was not admitted because

(1) Explain why the identity of the perpetrator was, or should have

establishes the petitioner's actual innocence; or

have been, a significant issue in the case

criteria for granting the motion (see below)

evidence sought to be tested contains biological evidence.

innocence.

description of the physical evidence containing DNA to be tested and, if

which resulted in the petitioner's conviction.

(2) The "chain of custody" evidentiary criterion has been met.

doubt, based on competent evidence whether or not

(2) The "chain of custody" evidentiary criterion has been met.

(3) A reasonable probability exists that the movant would

of innocence. The petition must be verified by the petitioner

issue in the case;

(2) Authorize the district attorney's use of the DNA test

or persons. Such sworn allegations may be based upon

Along with the application, the inmate shall submit an acknowledgment

preliminary determination by the System that the claim has a

convicted or of the conduct underlying any mandatory sentence

resulted in the judgment of conviction and that the evidence

(2) The person identifies the specific evidence to be tested

been met; (b) that the testing is materially relevant, noncumulative,

the court ruled DNA testing did not meet acceptable scientific

been, a significant issue in the case;

(2) The scientific predicate for the claim could not

(2) Explain, in light of all the evidence, how the requested DNA

The motion shall include the results of all prior

known, the present location or the last known location of the evidence and

(2) The evidence was not subjected to the requested DNA testing because

The petition must claim that he is innocent of the offense.

introduced at trial, as to the guilt of the petitioner in that

The person must claim actual innocence.

not have been convicted if exculpatory results had been

under penalty of perjury and must:

(2) Explain in light of all the evidence, how if the results of the

results to investigate all aspects of the case that the

personal knowledge of the affiant, or upon information

that is on a form prescribed by the attorney general for this purpose and

reasonable basis in fact. The System shall employ such

enhancement; or (b) For a person not in custody, contains a

be granted, any data obtained from any DNA samples or test results

sought to be tested contains biological evidence.

and states a theory of defense, not inconsistent with theories

and necessary and may prove the convicted person's actual

standards or DNA testing technology was not sufficiently

(2) Explain, in light of all the evidence, how the requested DNA testing

have been previously discovered through the exercise

testing would raise a reasonable probability that the convicted

DNA tests, regardless of whether the prosecution

how it was originally obtained;

the existence of the evidence was unknown to the petitioner or to the

DNA testing will resolve the doubt and establish the

obtained through the requested DNA testing.

(1) Explain why the identity of the perpetrator was or should have

requested DNA testing are favorable to the defendant, a motion

petitioner is seeking to reopen.

and belief, provided that in the latter event the affiant must

that is signed by the inmate (see § 2953.72 for the details of the

attorneys, investigators, and other employees as may be

statement that the person is innocent of the offense for which

may be entered into law enforcement databases, may be used in the

previously asserted at trial, that the requested DNA testing

innocence; (c) the testing requested involves a scientific method

developed to test the DNA evidence in the case.

would raise a reasonable probability the convicted person's verdict

of due diligence and the facts underlying the claim, if

person's verdict or sentence would be more favorable if the

or defense performed it.

(2) A statement that the evidence was not previously tested for DNA or a

petitioner's trial attorney prior to trial or because the technology for the

petitioner's innocence;

The person must claim actual innocence.

been a significant issue in the case;

for a new trial based upon newly discovered evidence would

The person must claim that DNA evidence will establish

state the sources of such information and the grounds

acknowledgment form).

necessary to process and present claims of factual

the person was convicted;

investigation of other crimes and may be used as evidence against

would support;

employed by the Division of Forensic Science; and (d) the

or sentence would be more favorable if the results of DNA testing

proven and viewed in the light of the evidence as a

results of the DNA testing had been available at the time of

statement that results of any previous DNA testing were inconclusive and that

testing was not available at the time of trial.

(2) The factual circumstances establishing the timeliness

(2) Present a prima facie case that the evidence to be tested has

be granted;

his innocence.

of such belief. The defendant may further submit

innocence to the appropriate prosecuting agency in an

(2) Identifies the specific evidence to be tested and a theory of

the applicant in other cases;

(3) The evidence that is the subject of the request for testing

convicted person has not unreasonably delayed the filing of the

had been available at the time of conviction;

whole, would be sufficient to establish by clear and

conviction.

subsequent scientific developments in DNA testing techniques would

(3) The identity of the perpetrator was, or should have been, a significant

of the application;

been subject to a chain of custody sufficient to establish that the

(3) Explain whether DNA testing was done at any previous time,

documentary evidence or information supporting or

efficient manner.

defense that the DNA testing would support;

(2) (a) assert the applicant's actual innocence of the offense for which

has the potential to produce new, noncumulative evidence

petition after the evidence or the test for the evidence became

(3) Make every reasonable attempt to identify both the evidence that

convincing evidence that no reasonable fact-finder

(3) Make every reasonable attempt to identify both the evidence

likely produce a definitive result;

issue in the case.

(3) The identification of the particular evidence for which

evidence has not been substituted, tampered with, degraded,

whether the defendant objected to providing a biological sample

tending to support the allegations of the moving papers.

(3) Include the results of any previous DNA test of the evidence

the applicant was convicted; and (b) in a capital case, (i) assert the

that will establish the person's actual innocence; and

available at the Division of Forensic Science;

should be tested and the specific type of DNA testing sought;

would find the petitioner guilty of the underlying offense.

that should be tested and the specific type of DNA testing sought.

(3) A statement that the sentenced defendant is innocent and how the DNA

(4) The requested DNA testing would raise a reasonable probability that the

DNA testing is sought; and

contaminated, altered or replaced in any material aspect;

for DNA testing, and whether the defendant objected to the

if a previous DNA test was conducted by either the prosecution

applicant's actual innocence of the charged or uncharged conduct

(4) The person is aware of the consequences of filing the

(2) The crime for which the person was convicted;

(4) Reveal the results of any DNA or other biological testing previously

(4) Reveal the results of any DNA or other biological testing that

testing requested by the petition will exonerate the defendant of the crime for

petitioner would have been acquitted if the results of DNA testing had been

(4) That the applicant is factually innocent of the crime for

(3) Explain, in light of all the evidence, how the requested testing

admissibility of DNA evidence at trial;

or the defense; and

constituting an aggravating circumstance under § 9711(d) if the

petition, including those specified in §§ 78-35a-302 and

(3) The reason or reasons the evidence was not known or

conducted by either the prosecution or defense, if known; and

was conducted previously by either the prosecution or defense,

which the defendant was sentenced or will mitigate the sentence received by

available at the time of conviction in light of all the evidence in the case.

which he was convicted, in the form of an affidavit signed

would establish the petitioner's innocence of the felony;

(4) Make every reasonable attempt to identify both the evidence

(4) Establishes a prima facie showing of the review criteria

applicant's exoneration of the conduct would result in vacating a

78-35a-304, and that the person is waiving any statute of

tested by the time the conviction became final in the circuit

(5) State whether any motion for testing under this section has been

if known.

the defendant for that crime;

(5) A description of the evidence to be tested and, if known, its present location,

by the petitioner under penalty of perjury.

(4) Make every reasonable attempt to identify both the evidence

that should be tested and the specific type of DNA testing

presented below.

sentence of death; or (ii) assert that the outcome of DNA testing would

limitations in all jurisdictions as to any felony offense he

court; and

filed previously and the results of that motion, if known.

(5) State whether any motion for testing under this section has

(4) A statement that identification of the defendant is a genuinely disputed

its origin and the date, time and means of its original collection.

that should be tested and the specific type of DNA testing

sought; and

establish a mitigating circumstance under § 9711(e)(7) if that

has committed which is identified through DNA database

(4) The reason or reasons that the newly discovered or untested

been filed and the results of that motion, if known.

issue in the case, and why it is an issue;

(6) The results of any DNA or other biological evidence testing that was

sought;

(5) Include consent to provide a biological sample for DNA testing.

mitigating circumstance was presented to the sentencing judge or jury

comparison.

evidence may prove the actual innocence of the person convicted

(5) Any other facts relevant to the petition; and

conducted previously by either the prosecutor or the defense, if known.

(5) Reveal the results of any DNA or other known biological

and facts as to that issue were in dispute at the sentencing hearing; and

The petition shall be in compliance with Rule 65 C, Utah Rules

Such motion shall contain all relevant allegations and facts that are

(6) A certificate that a copy of the petition has been served on the

(7) If known, the names, addresses and telephone numbers of all persons or

testing that was previously conducted by the prosecution or

(3) Present a prima facie case demonstrating that the (a) identity of or

of Civil Procedure, including providing the underlying criminal

known to the petitioner at the time of filing and shall enumerate and

prosecuting authority.

entities who are known or believed to have possession of any evidence

defense; and

the participation in the crime by the perpetrator was at issue in the

case number.

include all previous records, applications, petitions, appeals and

described in (1) through (6), and any persons or entities who have provided

(6) State whether a petition was previously filed under the section

proceedings that resulted in the applicant's conviction and sentencing;

their dispositions.

information contained in petitioner's motion, indicating which person or entity

and the results of the proceeding.

and (b) DNA testing of the specific evidence, assuming exculpatory

has which items of evidence or information.

results, would establish: (i) the applicant's actual innocence of the

(8) The names, addresses and telephone numbers of all persons or entities

of the offense for which the applicant was convicted; (ii) in a capital

who may testify for the petitioner and a description of the subject matter and

case, the applicant's actual innocence of the charged or uncharged

summary of the facts to which each person or entitty may testify.

conduct constituting an aggravating circumstance under § 9711(d) if the

The petitioner shall state: (1) that the motion is not filed for the purpose of delay,

applicant's exoneration of the conduct would result in vacating a

and (2) that the issue was not raised by the petitioner or the requested DNA

sentence of death; or (iii) in a capital case, a mitigating circumstance

testing was not ordered in a prior proceeding in the courts of GA or the US.

under § 9711(e)(7) under the circumstances set forth in sub-§ (c)(1)(4)

What Evidence Can Be Tested? What
Criteria Must the
Evidence Meet?

***

Any evidence that is in the possession or control of
the court or the state, that is related to the investigation
or prosecution that resulted in the judgment of conviction,
and that may contain biological evidence may be tested.
-------
The evidence is still in existence and is in a condition
that allows DNA testing to be conducted.
-------
The evidence was not previously subjected to DNA
testing or was not subjected to the testing that is now
requested and that may resolve an issue not previously
resolved by the previous testing.

The evidence to be tested was not previously subjected to testing and the person did not waive the right to request testing during trial or fail to request testing in a prior motion for post-conviction testing
-------
The specific evidence was previously subjected to testing and the request is for testing using a new method or technology that is substantially more probative than the prior testing
-------
The specific evidence to be tested is in the possession of the state and has been subject to a chain of custody to ensure its integrity
-------
The proposed testing is reasonable in scope, utilizes scientifically sound methods, and is consistent with accepted forensic practices

The convicted person must make a prima facie case that the evidence sought to be tested is material to the issue of the
convicted person's identity as the perpetrator of, or accomplice to,
the crime, special circumstance, or enhancement allegation that
resulted in the conviction or sentence.
-------
The evidence to be tested is available and in a condition that would
permit the DNA testing requested in the motion.
-------
The evidence to be tested has been subject to a chain of custody
sufficient to establish it has not been substituted, tampered with,
replaced, or altered in any material aspect.
-------
The evidence must meet either of the following conditions:
(1) The evidence was not tested previously; or
(2) The evidence was tested previously, but the requested DNA test
would provide results that are reasonably more discriminating and
probative of the identity of the perpetrator or accomplice or have
a reasonable probability of contradicting prior test results.

Biological evidence pertaining to the offense may be tested.
-------
A law enforcement agency collected biological evidence
pertaining to the offense and retains "actual or constructive
possession"* that allows for reliable DNA testing.
"Actual or constructive possession" means the biological
evidence is maintained or stored on the premises of the
law enforcement agency or at another location or facility
under the custody or control of the law enforcement agency,
including pursuant to an agreement or contract with the
law enforcement agency and a third-party service provider,
in Colorado or elsewhere.

Evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency,
any laboratory, or the superior court may be tested.
-------
The evidence is still in existence and is capable of being
subjected to DNA testing.
-------
The evidence, or a specific portion of the evidence identified
by the petitioner, was never previously subjected to DNA
testing, or the testing requested by the petitioner may
resolve an issue that was never previously resolved by
previous testing.

Evidence secured in relation to the trial which resulted in the conviction may be tested.
-------
The evidence was not previously subjected to testing
because the technology for testing was not available
at the time of the trial.
-------
The movant must present 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.

The petition must contain a statement that the evidence was not previously tested for DNA or that results of any previous DNA testing were inconclusive
and that subsequent scientific developments in DNA testing techniques
would likely produce a definitive result.
-------
The Court must make a finding on whether the defendant has shown that
the physical evidence that may contain DNA still exists, whether the
results of the DNA testing would be admisible at trial,and whether there
exists reliable proof to establish that the evidence has not been materially
altered and would be admissible at a future hearing.

Evidence obtained in relation to the crime and subsequent indictment, which resulted in the petitioner's conviction, may be tested.
-------
The evidence was not subjected to the requested DNA testing because
the existence of the evidence was unknown to the petitioner or to the
petitioner's trial attorney prior to trial or because the technology for the
testing was not available at the time of trial.
-------
The evidence to be tested is available and in a condition that would permit
the DNA testing requested in the motion.
-------
The evidence to be tested has been subject to a chain of custody sufficient to
establish that it has not been substituted, tampered with, replaced, or altered
in any material respect.
-------
The evidence was not tested previously, or if tested previously, the requested
DNA test would provide results that are reasonably more discriminating or
probative of the identity of the perpetrator than prior test results.

***

Evidence that was secured in relation to the trial which resulted in the petitioner's conviction may be tested.
-------
The evidence was not subject to the testing that is now
requested because the technology for the testing was not
available at the time of trial.
-------
The evidence to be tested has been subject to a chain of
custody sufficient to establish that such evidence has not
been substituted, tampered with, replaced, or altered in
any material aspect.

Evidence that was secured in relation to the trial which resulted in the petitioner's conviction may be tested.
-------
The evidence was not subject to the testing that is now
requested because the technology for the testing was
not available at the time of trial.
-------
The evidence to be tested has been subject to a chain of
custody sufficient to establish that such evidence has not
been substituted, tampered with, replaced, or altered in
any material aspect.

Evidence that: (1) is in the possession or control of a court or the state, or is otherwise contained in the Indiana DNA data base established under IC 10-13-6; (2) is related to the investigation or prosecution that resulted in the person's conviction; and (3) may contain biological evidence may be tested.
-------
A sample of the evidence that the petitioner seeks to subject to DNA testing and analysis is in the possession or control of either (A) the state or a court; or (B) another person, and if this clause applies, that a sufficient chain of custody for the evidence exists to suggest that the evidence has not been substituted, tampered with, replaced, contaminated or degraded in any material aspect. The evidence sought to be tested was not previously tested; or was tested, but the requested DNA testing and analysis will: (i) provide results that are reasonably more discriminating and probative than of the identity of the perpetrator or accomplice; or (ii) have a reasonable probability of contracting prior test results.

***

Biological material may be tested if it: (1) is related to the investigation or prosecution that resulted in the
conviction; (2) is in the actual or constructive
possession of the state; 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.

Evidence that is in the possession or control of the court or Commonwealth, that is related to the investigation or prosecution and that may contain biological evidence may be tested.
-------
The evidence is still in existence and is in a condition that allows DNA testing and analysis to be conducted.
-------
The evidence was not previously subjected to DNA testing and analysis or was not subjected to the testing and analysis that is now requested and may resolve an issue not previously resolved by the previous testing and analysis.

An unknown sample secured in relation to the offense for which the petitioner was convicted may be tested.
-------
The evidence to be tested is available and in a condition that would permit DNA testing.
-------
Relief shall not be granted when the court finds that there is a substantial question as to the integrity of the evidence to be tested.
-------
Relief under this Article shall not be granted solely because there is evidence currently available for DNA testing but the testing was not available or was not done at the time of the conviction.

Evidence in the control or possession of the state that is related to the underlying investigation or prosecution
that led to the person's conviction may be tested.
-------
The evidence to be analyzed is material to the issue of the person's identity as the perpetrator of, or accomplice to, the crime that resulted in the conviction.
-------
A sample of the evidence is available for DNA analysis.
-------
The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced or altered in a material way.
-------
The evidence was not previously subjected to DNA analysis or, if previously analyzed, will be subject to DNA analysis technology that was not available when the person was convicted.

"Scientific identification evidence" that the State possesses (as provided in § 8-201(i)) and that is related to the judgment of conviction may be tested. Scientific identification evidence means evidence that (a) is related to an investigation or prosecution that resulted in a judgment of conviction; (b) is in the actual or constructive possession of a law enforcement agency or an agent of a law enforcement agency; and (c) contains biological evidence (see §8-201(a)(2)) from which DNA may be recovered that may produce exculpatory or mitigating evidence relevant to a claim of a convicted person of wrongful conviction or sentencing if subject to DNA testing.

***

Biological material identified during the investigation leading to the person's conviction may be tested.
-------
A sample of identified biological material is available for DNA testing.
-------
The identified biological material was not previously subjected to DNA testing or, if previously tested, will be subject to DNA testing technology that was not available when the defendant was convicted.

Evidence secured in relation to the trial which resulted in the conviction may be tested.
-------
The evidence was not subject to testing because either the technology for the testing was not available at the time of the trial or the testing was not available as evidence at the time of the trial.
-------
The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.

***

There is evidence upon which DNA testing can be conducted.
-------
The evidence was secured in relation to the crime.
-------
The evidence was not previously tested by the movant because: (a) The technology for the testing was not reasonably available to the movant at the time of the trial; (b) Neither the movant nor his or her trial counsel were aware of the existence of the evidence at the time of trial; or (c) The evidence was otherwise unavailable to both the movant and the movant's trial counsel at the time of trial.

[The implication from the statute is that the evidence must be in the custody of a laboratory or government agency. It is unclear whether this is an absolute requirement.]
-------
The evidence to be tested: (a) was secured in relation to the trial that resulted in the conviction; (b) is available; and (c) is in a condition that would permit the requested testing.
-------
The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, degraded, contaminated, altered, or replaced in any material aspect.
-------
The evidence sought to be tested was not previously tested or was tested previously but another test would provide results that are reasonably more discriminating and probative on the question of whether the petitioner was the perpetrator of the felony that resulted in the conviction or would have a reasonable probability of contradicting the prior test results.

Any biological material may be tested if it: (1) is related to the investigation or prosecution that resulted in such judgment; (2) is in the actual or constructive possession or control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity of the biological material's original physical composition; and (3) was not previously subjected to DNA testing or can be subjected to retesting with more current DNA techniques that provide a reasonable likelihood of more accurate and probative results.

Evidence within the possession or custody of the State which may contain genetic marker information relating to the investigation or prosecution that resulted in the judgment or conviction and sentence of death may be tested.
-------
The evidence to be analyzed exists.
-------
The evidence was not previously subjected to: (a) a genetic marker analysis involving the petitioner; or (b) a method of analysis requested in the petition, and the method of additional analysis may resolve an issue not resolved by a previous analysis.

***

The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;
-------
The evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced, or altered in any material aspect.
-------
The evidence sought to be tested meets either of the following conditions: (a) it was not tested previously; or (b) it was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results.

Evidence that can be subjected to DNA testing may be tested.
-------
Evidence exists that can be subjected to DNA testing.
-------
The evidence to be subjected to DNA testing: (a) has not previously been subjected to DNA testing; (b) has not previously been subjected to the type of DNA testing that is now being requested; or (c) was previously subjected to DNA testing, but was tested incorrectly or interpreted incorrectly.

Evidence containing DNA secured in connection with the trial resulting in the judgment may be tested.

Biological evidence that meets all of the following conditions may be tested:
(1) The evidence is material to the defendant's defense;
(2) The evidence is related to the investigation or prosecution that resulted in the judgment; and
(3) The evidence meets either of the following conditions:
(a) it was not DNA tested previously; or
(b) it was tested previously, but the requested DNA test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.

Biological material recovered from the crime scene or victim in question in relation to the offense for which the inmate is an eligible inmate may
be tested.
-------
The parent sample of the biological material so collected contains scientifically sufficient material to extract a test sample.
-------
The parent sample is not so minute or fragile as to risk destruction by the extraction of the test sample; provided that the court may determine in its discretion, on a case-by-case basis, that, even if the parent sample is so minute or fragile as to risk destruction by the extraction, the application should not be rejected solely on the basis of that risk.
-------
The parent sample has not degraded or been contaminated to the extent that it has become scientifically unsuitable for testing, and the parent sample has otherwise has been preserved, and remains, in a condition that is scientifically suitable for testing.
-------
The chain of custody of the parent and test samples, and the totality of the circumstances involved, are sufficient to establish that the samples have not been out of state custody, tampered with or contaminated.
-------
The court shall reject the application if a prior definitive DNA test was performed, but has discretion to grant the application if a prior inconclusive test was performed.

Samples must be of sufficient quantity to allow testing by both the prosecution and the defense.

The specific evidence must have been secured in connection with the prosecution, including the investigation, that resulted
in the conviction of the person.
-------
Unless the parties stipulate otherwise, the evidence to be tested is in the possession of a city, county, state or the court and has been subject to a chain of custody sufficient to establish that the evidence has not been altered in any material aspect.

Evidence related to the investigation or prosecution that resulted in the judgment of conviction may be tested.
-------
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 Jan. 1, 1995, or the applicant's counsel sought funds from the court to pay for the testing because his client was indigent but the court refused the request despite the indigency. The evidence to be tested has been has been subject to a chain of custody sufficient to establish that it has not been altered in any material respect.

Evidence that is in the possession or control of the prosecution, law enforcement, laboratory, or court may be tested.
-------
The evidence is still in existence and capable of being subjected to DNA testing.
-------
The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing; or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing.

***

Evidence that is in the possession or control of the prosecution, law enforcement, laboratory or court, and that is related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence may be tested.
-------
The evidence is still in existence and in such a condition that DNA analysis may be conducted.
-------
The evidence was never previously subjected to DNA analysis or was not subjected to the DNA analysis that is now requested which could resolve an issue not resolved by previous analysis.

Evidence containing biological material that was secured in relation to the offense that is the basis for the challenged conviction and was in the possession of the state during the trial of the offense may be tested.
-------
The evidence: (1) was not previously subjected to DNA testing (a) because DNA testing was not available, or was available, but not technologically capable of providing probative results; or (b) through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing; or (2) although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.
-------
The evidence still exists and is in a condition making DNA testing possible.
-------
The evidence has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect.

Evidence has been obtained regarding the person's case which is still in existence and is in a condition that allows DNA testing to be conducted.
-------
The chain of custody is sufficient to establish that the evidence has not been altered in any material aspect.
-------
The evidence was not previously subjected to DNA testing, or if the evidence was tested previously, the evidence was not subjected to the that is testing now requested, and the new testing may resolve an issue not resolved by the prior testing.

***

Any human biological evidence related to the case that resulted in the felony conviction may be tested.
-------
The evidence was not known or available at the time the conviction became final in the circuit court or the evidence was not previously subjected to testing because the testing procedure was not available at the Division of Forensic Science at the time the conviction became final in the circuit court.
-------
The evidence is subject to a chain of custody sufficient to establish that it has not been altered, tampered with, or substituted in any way.

The evidence still exists.

The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion.
-------
The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced or altered in any material aspect.
-------
The evidence (a) was not previously tested; or (b) was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.
The evidence or the presently desired testing method were not available to the defendant at the time of trial, or a court has found ineffective assistance of counsel at the trial court level.

The evidence is relevant to the investigation or prosecution that resulted in the conviction, adjudication, or finding of not guilty by reason of a
mental disease or defect.
-------
The evidence is in the actual or constructive possession of a government agency.
-------
The evidence has not previously been subjected to forensic DNA testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.
-------
The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect, or if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

***

The specific evidence to be tested was secured in relation to the investigation or prosecution of the Federal or State offense referenced in the applicant's assertion of actual innocence.
-------
The specific evidence to be tested:
(A) Was not previously subjected to DNA testing and the applicant did not:
(i) knowingly and voluntarily waive the right to request DNA testing of that
evidence in a court proceeding after the enactment of the Innocence
Protection Act of 2004; or (ii) knowingly fail to request DNA testing of
that evidence in a prior motion for postconviction DNA testing; or
(B) Was previously subjected to DNA testing and the applicant is requesting
DNA testing using a new method or technology that is substantially more
probative than the prior DNA testing.
-------
The specific evidence to be tested is in the possession of the Government
and has been subject to a chain of custody and retained under conditions
sufficient to ensure that such evidence has not been substituted,
contaminated, tampered with, replaced, or altered in any respect material to
the proposed DNA testing.

Is the Prosecutor

***

After notice to the prosecutor and an opportunity to

Reasonable notice of the motion shall be served on

Notice of the motion shall be served on the Attorney General, the

Following a request for a hearing, the court shall allow

After notice to the prosecutorial official and a hearing, the

Any motion filed pursuant to this section shall be served

A copy of the petition is served upon the prosecuting authority.

The motion shall be served upon the district attorney and the Attorney

***

The trial court clerk shall deliver a copy of the petition

Reasonable notice of the motion shall be served upon

A petitioner must give notice of the petition to the

***

The court shall notify the prosecuting attorney and

After notice to the prosecutor and an opportunity to

Once an application has been filed and the court

Filing and service must be made in accordance with Rule

A petitioner shall notify the State in writing of the filing of a petition

***

The petition shall be served on the prosecuting

Reasonable notice of the motion shall be served on the

***

The clerk [of the sentencing court] shall file the motion in

The court shall order a copy of the petition to be served on the

Notice of such motion shall be served by the person in

A copy of the petition must be served by registered

***

Notice of the motion shall be served on the Attorney General (AG),

A copy of the petition shall be served on the district

The people may file with the court, and in such case must

***

The eligible inmate shall serve a copy of the application on the prosecuting

The DNA Forensic Testing Program presents to the appropriate

***

Upon receipt of a motion, the court shall notify the Commonwealth and

After notice to the prosecution and a hearing, a justice

***

After notice to the prosecution and an opportunity to

On receipt of the motion, the convicting court shall (1) provide

A person who files a petition under this section shall serve

***

The petitioner shall serve a copy of such motion upon the attorney

The prosecutor shall screen the request.

Notice of the motion shall be served on the prosecuting attorney in the

A movant or, if applicable, his or her attorney shall serve a copy of the

***

Upon the receipt of a motion, the court shall--(A) notify the Government; and

Involved in the

respond, the court shall or may order testing.

the prosecuting attorney who represented the state

district attorney in the county of conviction, and, if known, the

the district attorney a reasonable amount of time, but not

court shall order DNA testing if it finds the criteria are met.

upon the State.

Upon receiving the response of the prosecuting authority, the court shall

General. The State shall file its response, if any, within 60 days of being served

to the prosecuting attorney.

the State.

prosecuting attorney for the county where the offense was

shall afford the prosecuting attorney an opportunity

respond, the Court shall or may order DNA testing.

determines the location of the evidence sought to be

49 of the Maine Rules of Criminal Procedure.

under this section. The State may file a response to the petition

attorney of the county in which the defendant was

prosecuting attorney who represented the state at trial.

the original criminal case and shall immediately deliver a

attorney general, the county attorney in the county of conviction,

custody upon the county attorney of the county in which

mail upon: (a) The Attorney General; and (b) The

the prosecutor in the county of conviction, and if known, the

attorney for the judicial district in which the district

serve a copy thereof upon the defendant or his counsel,

attorney and the attorney general. Any response to the application by the

prosecutorial agency claims that scientific evidence will

shall afford the Commonwealth an opportunity to respond to the motion.

of the superior court shall order testing after finding that

respond, the court shall or may order DNA analysis when

the attorney representing the state with a copy of the motion;

notice upon the office of the prosecutor who obtained the

for the Commonwealth. The Commonwealth shall file its response

county of conviction and, if known, the governmental agency or

motion on the district attorney's office that prosecuted the case that

(B) allow the Government a reasonable time period to respond to the motion.

Process?

at trial. Within 20 days after the filing of the petition

governmental agency or laboratory holding the evidence sought to

less than thirty days, to respond to the motion and any

review the response and enter and order on the merits of the petition or

with the motion. The State shall be given notice and an opportunity to respond

allegedly committed. The court shall give the prosecuting

to respond.

tested, the court shall serve a copy of the application on

[Presumably this includes service on a state attorney].

within 15 days after notice of the filing or within the time that the

sentenced.

copy of the motion to the prosecutor. The court shall issue

and, if known, the laboratory or government agency holding the

the prosecution was held.

district attorney in the county in which the petitioner

governmental agency or laboratory holding the evidence sought to be

court was located.

if any, an answer denying or admitting any or all of the

prosecuting attorney or the attorney general shall be filed no later than 45

exonerate indigent incarcerated felons.

certain criteria have been met.

and (2) require the attorney representing the state to deliver the

conviction, and upon the state attorney general. The attorney

to the motion within 30 days of the receipt of service.

laboratory holding the evidence sought to be tested. Responses, if any

resulted in the conviction, adjudication, or finding of not guilty by reason

the prosecuting attorney or the Attorney General

be tested. Responses, if any, shall be filed within 60 days of the date

supplement filed by the petitioner's counsel and to

set the petition for hearing.

at any hearing conducted pursuant to this subsection.

attorney an opportunity to respond to the petition.

the district attorney and the law enforcement agency

court orders.

to the prosecutor an order to show cause why the motion

evidence sought to be tested. The court shall order that any

was convicted. [An inventory of evidence shall be

tested. Responses, if any, shall be filed within 60 days of the date on

After reviewing a petition, the district court may dismiss the

allegations of the motion papers, and may further submit

after the date on which the eligible inmate submits the application. The

evidence to the court, along with a description of the condition

general shall, within 30 days after receipt of service of a copy

shall be filed within 60 days of the date on which the prosecuting

of mental disease or defect. The court in which the motion is made

shall respond to the petition by answer or motion

on which the Attorney General and the district attorney are served

prepare for the hearing.

which has possession of the evidence to be tested.

should not be granted unless: (1) it appears from the motion

responses to the petition must be filed within a reasonable time

made.] Within 30 days after the inventory of all the

which the AG and the prosecutor are served with the motion, unless

petition, order a response by the district attorney or issue

documentary evidence or information refuting or tending

prosecuting attorney or the attorney general, or both, may, but are not

of the evidence, or explain in writing to the court why the state

of the petition, or within any additional period of time the court

attorney is served with the motion, unless a continuance is granted

shall also notify the appropriate district attorney's office that a motion

which shall be filed with the court and served on the

with the motion, unless a continuance is granted for good cause.

that the movant is not entitiled to relief; or (2) the court finds

after the date of service.

evidence, the prosecuting attorney may file a written

a continuance is granted. The AG or prosecutor may support the

an order for DNA testing.

to refute such allegations.

required to, file a response to the application. If the prosecuting attorney

cannot deliver the evidence to the court.

allows, answer or otherwise respond to all proceedings

for good cause.

has been made and shall give the district attorney an opportunity to

petitioner (if unrepresented) or his attorney.

that the files and records of the case conclusively show that

response to the petition with the court.

motion for DNA testing or oppose it with a statement of reasons

or the attorney general files a response under this division, the prosecuting

initiated under this part.

respond to the motion. Failure by a movant to serve a copy of the

the movant is not entitled to relief.

and may recommend to the court that if any DNA testing is ordered,

attorney or attorney general, whoever filed the response, shall serve a

motion on the appropriate district attorney's office does not deprive

a particular type be conducted.

copy of the response upon the eligible inmate.

the court of jurisdiction and is not grounds for dismissal of the motion.

Is There a Hearing?

***

Unless the petition and the files and records of the

The court, in its discretion, may order a hearing on the motion. The

If the motion, files, and record of the case show to the

After notice to the prosecutorial official and a hearing, the

***

Upon receiving the response of the prosecuting authority, the court shall

If, after the State files its response, if any, and the court determines that the

***

The court may, in its discretion, order a hearing on the petition.

***

In addition to any other reason established by legislation

***

[The provision on hearings, § 590.04, appears only to apply to

***

If the court finds that the motion and the files and records

The court may order a hearing on the petition. The hearing must

Upon consideration of affidavits or after a hearing, the court

The court shall hold a hearing on a petition filed

***

The court, in its discretion, may order a hearing on the motion. The

***

After all papers of both parties have been filed, and after

***

The court is not required to conduct an evidentiary hearing in conducting

Not applicable.

***

After notice to the prosecution and a hearing, a justice

***

Any victim of the crime regarding which the person petitions

***

The court shall, no sooner than 30 and no later than 90 days after

***

The court, in its discretion, may order a hearing on the motion. The

The clerk of the circuit court in which a motion is made shall send a copy

***

proceeding conclusively show that petitioner is

motion shall be heard by the judge who conducted the trial, or

satisfaction of the court that the petitioner is not entitled to

court shall order DNA testing if it finds the criteria are met.

review the response and enter and order on the merits of the petition or

motion complies with the requirements outlined above, the court shall order a

or jurisprudence, and whether based on the petition and

those seeking a post-conviction remedy based on the results

of the case conclusively show that the movant is not

be before the judge who conducted the trial, unless the court

shall order DNA testing if the requisite criteria are met.

pursuant to this section.

motion shall be heard by the judge who conducted the trial unless the

all documentary evidence or information, if any, has

its review of, and in making its determination as to whether to accept or

of the superior court shall order testing after finding that

for DNA testing, who has elected to receive notice under

such motion is filed, hear the motion. Motions made by a petitioner

motion shall be heard by the judge who conducted the trial or accepted

of the motion and, if a hearing on the motion is scheduled, a notice of the

entitled to no relief, the court shall promptly set an

accepted the convicted person's plea of guilty or nolo contendre,

relief based on the criteria set below, the court shall deny

set the petition for hearing.

hearing to occur after the State has filed its response, but not more than 90

answer or after contradictory hearing, the court shall

of post-conviction DNA testing.]

entitled to relief, a hearing shall not be held. If a hearing

determines that the judge is unavailable. The court may consider

presiding judge determines that judge is unavailable.

been submitted, the court must consider the same for

reject, the application.

certain criteria have been met.

77-38-3, shall be notified by the state's attorney of any hearing

under a sentence of death shall be given priority on the docket.

the convicted person's plea, unless the presiding judge determines that

hearing to the victim of the crime or delinquent act committed by the

early hearing on the petition and response, promptly

unless the presiding judge determines that judge is unavailable.

the motion without a hearing. Defendant's counsel may

days from the date the motion was filed. The motion shall be heard by the judge

dismiss an application unless certain criteria are met.

is ordered, counsel shall be appointed to represent the

evidence whether or not it was introduced at trial.

The court shall not grant the motion for DNA testing unless, after

the purpose of ascertaining whether the motion is

regarding the petition and testing, even though the hearing is

judge is unavailable.

movant, if the clerk is able to determine an address for the victim.

determine the issues, make findings of fact and

request the court to set the matter for a hearing, if, upon

who conducted the trial that resulted in the petitioner's conviction unless the

movant if the movant is indigent. The hearing shall be on

conducting a hearing, it determines that all of the necessary criteria

determinable without a hearing to resolve questions of

a civil proceeding.

conclusions of law, and either deny the petition or

investigation of the petitioner's motion, counsel believes

presiding judge determines that the trial judge is unavailable.

the record. The movant shall have the burden of proving

have been established (see below).

fact.

enter an order granting the appropriate relief.

sufficient grounds exist to support an order for DNA testing.

The purpose of the hearing shall be to allow the parties to be heard on the issue

the allegations of the motion by a preponderance of the

The pro se defendant may himself request a hearing.

of whether the petitioner's motion complies with the requirements outlined above,

evidence.

The court shall not order DNA testing without a hearing,

whether upon consideration of all of the evidence there is reasonable probability

except upon written stipulation of the district attorney.

that the verdict would have been different if the results of the requested testing had

been available at the time of trial, and whether the review criteria requirements

have been established.

What are the Review

***

After notice to the prosecutor and an opportunity to

Not specified in the statute.

The court shall grant the motion for DNA testing if it determines

The court shall not order DNA testing unless the petitioner

After notice to the prosecutorial official and a hearing, the

The motion may be granted if:

The court shall make the following findings when ruling on the petition:

The court shall grant the motion for DNA testing if it determines that the

***

The trial court shall allow the testing upon a determination that:

After complying with the notice and hearing requirements of this

***

The court shall order DNA testing upon a

After notice to the prosecutor and an opportunity to

In addition to any other reason established by legislation

The court shall order DNA analysis if the person present

A court shall order DNA testing if the court finds that:

***

The court shall order DNA testing if the defendant

The court shall order that testing be performed if:

***

The court shall order appropriate testing if the court finds:

The court shall grant the petition if it determines that the

Upon consideration of affidavits or after a hearing, the court

The court shall order a genetic marker analysis if the

***

The court shall not grant the motion for DNA testing unless, after

The petitioner shall show, by a preponderance of the

The court shall grant the application for forensic DNA

The court shall grant the motion for DNA testing of the

***

The court may accept the application only if all of the following apply:

The System's services shall be available only upon a

The court shall order the requested DNA testing if it finds that:

Except as provided below, the court shall order the testing requested

Mandatory testing: After notice to the prosecution and a hearing, a

***

After notice to the prosecution and an opportunity to

A convicting court may order forensic DNA testing under this

After the attorney general is given an opportunity to respond

***

The court shall, after a hearing on the motion, set forth its findings

The prosecutor shall screen the request. The request shall

The court shall grant the motion for DNA testing, if it determines all of

A court in which a motion is filed shall order forensic DNA testing if all

***

The court shall order DNA testing of specific evidence if the court finds that all of the

Criteria for the

respond, the court shall order DNA testing if the

all of the following have been established:

demonstrates by a preponderance of the evidence that:

court shall order DNA testing if it finds that:

(1) The evidentiary criteria are met;

(1) Whether the sentenced defendant has shown that the physical evidence

petitioner has met the requirements set out for the application contents and

(1) The result of the testing has the scientific potential to

(1) The result of the testing has the scientific potential to produce

section, the court shall determine whether the petitioner has presented

determination that testing may produce

respond, the Court shall order DNA testing and

or jurisprudence, and whether based on the petition and

prima facie evidence that:

(1) A reasonable probability exists that the DNA testing has the

does all of the following:

(1) The petitioner has established a prima facie case that

(1) A reasonable probability exists that the movant would

petition is not made for purpose of delay and that:

shall order DNA testing upon a determination that such

court finds that:

conducting a hearing, it determines that all of the following have

evidence, that:

testing of the evidence upon its determination that if a

evidence upon its determination that:

(1) The evidentiary criteria have been met;

preliminary determination by the System that the claim has a

(1) The requirements of the affidavit have been met;

in a motion upon a determination, after review of the record of the

justice of the superior court shall order testing after finding that:

respond, the court shall order DNA analysis if it finds that:

chapter only if [and shall order if]:

to a petition for postconviction DNA testing, the court shall

specifically as to each of the items required in the petition and

be reviewed based upon the likelihood that the DNA

the following have been established:

of the following apply:

following apply:

Petition?

court finds that all of the following apply:

(1) All of the evidentiary criteria have been met.

(1) Favorable results of the DNA testing will demonstrate the

(1) A reasonable probability exists that the petitioner would

(2) The movant presents a prima facie case that identity

that may contain DNA still exists;

that all of the following have been established:

produce new, noncumulative evidence that would show that it

new, noncumulative evidence materially relevant to the

prima facie proof of the following criteria. The court shall order

noncumulative, exculpatory evidence relevant to

analysis if the court finds that all of the following apply:

answer or after contradictory hearing, the court shall

(1) The evidence sought to be analyzed is material to

scientific potential to produce exculpatory or mitigating evidence

(1) Presents prima facie proof that the evidence

identity was an issue in the trial and that the evidence was

not have been convicted if exculpatory results had been

(1) The evidentiary criteria have been met;

testing was effectively not available at the time of trial, that

(1) A reasonable possibility exists that the petitioner would

been established:

(1) He was convicted of a felony;

DNA test had been conducted on such evidence, and if

(1) The evidentiary criteria have been met; and

(2) Either: (a) The inmate did not have a DNA test taken at the trial stage

reasonable basis in fact.

(2) The evidentiary criteria have been met;

applicant's trial, that the:

(1) A reasonable probability exists that petitioner would not have

(1) A reasonable probability exists that the petitioner would

(1) The court finds that the evidentiary criteria have been met

order DNA testing if it finds by a preponderance of the

either: (1) dismiss the motion for failure to comply with the

evidence would demonstrate innocence on a more probable

(1) The evidentiary criteria have been met;

(1) The movant claims that he or she is innocent of the offense at issue;

(1) The applicant asserts that, under penalty of perjury, that the applicant is actually innocent

(1) A reasonable probability exists that petitioner

(2) The identity of the perpetrator of the crime was, or should have

petitioner's "actual innocence" (see § 18-1-411 for a

not have been prosecuted or convicted if exculpatory results

was an issue at trial;

(2) Whether the results of DNA testing of that physical evidence would be

(1) The evidentiary criteria are met;

is more probaable than not that the petitioner is innocent; and

defendant's assertion of actual innocence even though the

DNA testing and analysis if the court makes the following findings:

the claim of the petitioner that the petitioner was

(1) A reasonable probability exists that the petitioner

dismiss any application unless it finds all of the following:

the issue of the person's identity as the perpetrator of, or

relevant to a claim of wrongful conviction or sentencing; and

sought to be tested is material to the issue of the

subject to a sufficient chain of custody;

obtained through the requested DNA testing; and

(2) The identity of the perpetrator of the felony was, or should

the biological material has been retained under

not have been prosecuted or convicted if exculpatory

(1) The evidentiary criteria have been met;

(2) The evidentiary criteria have been met;

the results had been admitted in the trial reulsting in the

(2) If the DNA testing being requested had been conducted

in the case regarding the same biological evidence that the inmate seeks

The System is authorized to investigate cases and arrange

(3) The person has presented a prima facie showing that: (a) the

(1) Requirements for the petition have been met;

been prosecuted or convicted if exculpatory results had been

not have been prosecuted or convicted if exculpatory

and that identitiy was or is an issue in the case; and

evidence that all the petition criteria have been met.

requirements of this section; (2) dismiss the motion for failure to

than not basis. The prosecutor shall inform the requestor

(2) The identity of the perpetrator of the crime was, or should have

(2) It is reasonably probable that the movant would not have been

of--(A) The Federal offense for which the applicant is under a sentence of imprisonment or

would not have been prosecuted or convicted had

been, a significant issue in the case.

definition of "actual innocence");

had been obtained through DNA testing;

(3) The requested testing has the scientifc potential to

admissible at trial and whether there exists reliable proof to establish that

(2) The motion is not made for the purpose of delay;

(2) The testing method requested would likely produce

results may not completely exonerate the defendant

(1) That the evidence sought to be tested is material to identifying the

wrongfully convicted or sentenced.

would not have been prosecuted or convicted if

(1) There is an articulable doubt based on competent

accomplice to, the crime that resulted in the conviction;

(2) The requested DNA testing employs a method of testing

convicted person's identity as the perpetrator of, or

(2) The testing has the scientific potential to produce new

(2) That movant is entitled to relief.

have been a significant issue in the case;

circumstances likely to safeguard the integrity of its original

results had been obtained through a genetic marker

(2) The identity of the defendant was a significant issue in the case;

(3) The DNA testing he is requesting will be likely to produce

judgment, there exists a reasonable probability that the

on the evidence, there exists a reasonable probability that

to have tested, the inmate shows that the DNA exclusion would have been

for the forensic testing of evidence to determine whether

identity of the perpetrator was an issue in the trial that resulted

(2) Evidentiary criteria have been met;

obtained through DNA testing;

results had been obtained through DNA testing;

(2) The convicted person establishes by a preponderance of the

The court may not order DNA testing in cases in which DNA

state a claim upon which relief can be granted; or (3) order that

and the state Office of Public Defense of the decision, and

been, a significant issue in the case;

prosecuted, convicted, found not guilty by reason of mental disease or

death; or (B) Another Federal or State offense, if--(i) evidence of such offense was admitted

exculpatory results been obtained via DNA testing; and

(3) The requested DNA testing result would raise a reasonable

(2) A law enforcement agency collected biological evidence

(2) The evidentiary criteria have been met; and

produce new, noncumulative evidence materially relevant

the evidence has not been materially altered and would be admissible at

(3) The identity of the perpetrator of the crime was a significant issue in

admissible results under the Idaho rules of evidence.

(2) The testing requested employs a scientific method generally

petitioner as the perpetrator of, or an accomplice to, the offense that

exculpatory results had been obtained through DNA

evidence, whether or not introduced at trial, as to the guilt

(2) The evidentiary criteria have been met; and

generally accepted within the relevant scientific community.

accomplice to, the crime that resulted in the

noncumulative evidence materially relevant to the defendant's

(3) The petitioner has made a prima facie showing that the

physical composition, and that such testing may produce

analysis of the evidence identified in the petition; and

(3) The convicted person has made a prima facie showing that the

admissible evidence; and

verdict would have been more favorable to the defendant.

the verdict would have been more favorable to the

outcome determinative at trial, and at the time of trial, DNA testing was not

evidence of factual innocence exists.

in the conviction of the person, or should have been an issue if

(3) Motion is made in a timely manner and for the purpose of

(2) The evidentiary criteria have been met; and

evidence that (a) the person would not have been convicted if

testing was available at the time of trial and the person did

testing be done by the Division of Forensic Science based on a

shall, in the case of an adverse decision, advise the

(3) The convicted person has made a prima facie showing that the

defect, or adjudicated delinquent for the offense at issue, if exculpatory

during a Federal death sentencing hearinga nd exoneration of such offense would entitle the

(2) The evidentiary criteria have been met.

probability that, in light of all the evidence, the convicted person's

pertaining to the offense and retains "actual or constructive

(3) The petition before the Superior Court was filed in order

to the person's claim of actual innocence; and

a future hearing; and

the case;

accepted within the relevant scientific community.

resulted in the petitioner's conviction.

testing and analysis; and

of the petitioner and there is a reasonable likelihood that

(3) The identity of the person as the perpetrator of the

conviction.

assertion of actual innocence; and

evidence sought to be tested is material to the question of

noncumulative, exculpatory evidence relevant to the claim

(2) The evidentiary criteria have been met.

evidence sought to be tested is material to the issue of the

(4) Identity was an issue in his case or that if the DNA

defendant.

generally accepted, the results of DNA testing weren't generally admissible

The System shall give priority to claims based on certain

the person was documented as having mental retardation prior

demonstrating the applicant's actual innocence, and not to delay

(3) The petition before the Superior Court was filed in order to

(3) The application for analysis is made for the purpose of

exculpatory results had been obtained through DNA testing; and

not request DNA testing or present DNA evidence for

finding of clear and convincing evidence that the requirements

requestor of appeals rights. Upon determining that testing

evidence sought for testing is material to the issue of the convicted

DNA results had been available before the prosecution, conviction, finding

applicant to a reduced sentence or new sentencing hearing; and (ii) in the case of a State

After notice to the prosecutor and an opportunity to

verdict or sentence would have been more favorable if the results

possession" that allows for reliable DNA testing (see

to demonstrate the petitioner's innocence and not to delay

(4) The requested testing employs a scientific method

(3) Whethere there is a reasonable probability that the sentenced defendant

(4) The testing requested employs a scientific method that has reached a

(2) That the evidentiary criteria have been met.

(2) The evidentiary criteria have been met.

the requested DNA testing will resolve the doubt and

crime that resulted in the conviction was at issue during

(2) Establishes all of the following by clear and

(3) The testing requested employs a scientific method

whether the petitioner was the perpetrator of the felony that

that the person was wrongfully convicted or sentenced.

convicted person's identity as the offender;

testing he is requesting had been performed prior to his

in evidence, or DNA testing was not yet available; or (b) The inmate had a

factors, including but not limited to:

to the time the crime was committed; and (b) DNA testing of the

the execution of sentence or administration of justice.

demonstrate the petitioner's innocence and not to delay the

demonstrating innocence and not to unreasonably delay the

(b) the request for the proposed DNA testing was not made to

tactical reasons.

have been met.

should occur and that the evidence still exists, the

person's identity as the perpetrator of or accomplice to, the crime,

of not guilty, or adjudication for the offense; and

offense--(a) the applicant demonstrates that there is no adequate remedy under State law to

respond, the court may order DNA testing if the

of DNA testing had been available at time of conviction. The court

§ 18-1-411 for a definition of "actual or constructive

the administration of justice.

which is generally accepted within the relevant scientific

would have been acquitted or would have received a lesser sentence if the

scientific state of verifiable certainty such that the procedure rests upon the

(3) A reasonable probability exists that the petitioner would not have

After notice to the prosecutor and an opportunity to

establish the innocence of the petitioner. In making this

the person's trial.

convincing evidence:

generally accepted within the relevant scientific community.

resulted in the conviction; and

(4) The requested DNA testing result would raise a reasonable

conviction and the results had been exculpatory, there is a

DNA test taken at trial, the test was not a prior definitive test, and the

(1) The opportunity for conclusive or near-conclusive proof

specified evidence would, assuming exculpatory results

The court shall not order the testing requested if, after review of the

administration of justice.

execution of sentence or the administration of justice.

unreasonably delay the execution of sentence or administration

prosecutor shall request DNA testing.

special circumstance, or enhancement allegation resulting in the

(3) The evidentiary criteria have been met.

permit DNA testing of the specified evidence relating to the State offense; and (b) to the

court finds that all of the following apply:

in its discretion may consider any evidence whether or not it was

possession");

After notice to the prosecutorial official and a hearing, the

community, and which satisfies the pertinent Delaware

DNA evidence had been admitted at trial.

laws of nature; and

been prosecuted for, or convicted of, the offense; or would not have

respond, the Court may order DNA testing and

finding the court shall consider the evidentiary importance

(a) The evidentiary criteria have been met; and

(4) The requested testing results would establish, in light of all

probability that if the results were favorable to the defendant, a

reasonable probability that the petitioner would not have

inmate shows that DNA exclusion would have been outcome determinative

that the person is factually innocent by reason of scientific

establish the actual innocence of the person of the offense for

record of the applicant's trial, the court determines that there is no

Discretionary testing: After notice to the prosecution and a hearing,

After notice to the prosecution and an opportunity to

of justice.

conviction or sentence;

A court in which a motion is filed may order forensic DNA testing if all

extent available, the applicant has exhausted all remedies available under State law for

(1) A reasonable probability exists that either:

introduced at trial.

(3) Conclusive DNA results were not available prior to

court may order DNA testing if it finds that:

Rules of Evidence concerning the admission of scientific

(5) The petitioner has made a prima facie showing that the evidence sought to

received as severe a sentence for the offense.

analysis if the court finds that all of the following apply:

of the DNA sample to be tested.

(b) The identity of the defendant as the perpetrator

the evidence, whether the petitioner was the perpetrator of the

motion for a new trial based upon newly discovered evidence would

pled guilty or been found guilty.

at trial;

evidence; and

which the person was convicted, or of conduct, if the

reasonable possibility that the testing would produce exculpatory

a justice of the superior court may order testing after finding that:

respond, the court may order DNA analysis if it finds that

(3) A convicted person who pleaded guilty or nolo contendere

(4) The requested DNA testing results would raise a reasonable

of the following apply:

requesting DNA testing of specified evidence relating to the State offense.

(a) The petitioner's verdict or sentence would have been

(4) The testing requested employs a method generally accepted

petitioner's conviction, and the petitioner did not secure DNA

(1) A reasonable probability exists that the requested testing

testimony or evidence.

be tested is material to the issue of the petitioner's identity as the perpetrator

(1) A reasonable probability exists that either:

(2) The application has been timely filed.

of the crime was at issue during his or her trial.

felony that resulted in the conviction.

be granted. The court in its discretion may consider any evidence

(3) The court determines that, at the trial stage of the case, the identity of

(2) A lengthy sentence of imprisonment or a death sentence.

exoneration of the conduct would result in a mandatory reduction

evidence that:

(1) A reasonable probability exists that the requested testing will

(1) A reasonable probabilty exists that analysis of the

in the case may submit a motion under this chapter, and the

probability that, in light of all the evidence, the convicted person's

(1) It is reasonably probable that the outcome of the proceedings that

(2) The evidentiary criteria have been met.

more favorable if the results of the DNA testing had been

within the relevant scientific community.

testing prior to his or her conviction because it was not

will produce DNA results which would have altered the verdict

of, or accomplice to, the crime, aggravating circumstance, or similar

(a) The petitioner's verdict or sentence would have been

(3) The evidentiary criteria have been met.

whether or not it was introduced at trial;

the person who committed the offense was an issue;

in the person's sentence;

(1) would establish the applicant's actual innocence of the offense

produce DNA results which would have altered the verdict or

evidence will produce DNA results which would have

convicting court is prohibited from finding that identity was not

verdict or sentence would have been more favorable if DNA testing

resulted in the conviction, the finding of not guilty by reason of mental

(3) The proposed DNA testing is reasonable in scope, uses scientifically sound methods,

available at the trial leading to the judgment of conviction;

(5) The motion is not made solely for the purpose of delay.

reasonably available or for reasons that constitute justifiable

or reduced the petitioner's sentence if the results had been

transaction that resulted in the conviction.

more favorable if the results of DNA testing and analysis

(5) The testing requested employs a method generally accepted

(4) The court determines that one or more of the defense theories

(4) The motion is made in a timely manner and for the purpose of

for which the applicant was convicted;

reduced the petitioner's sentence, if the results had been available

rendered the petitioner's verdict or sentence more favorable

an issue solely on the basis of that plea.

results had been available at the time of conviction. The court in its

disease or defect, or the delinquency adjudication for the offense at

and is consistent with accepted forensic practices.

(b) DNA testing will provide exculpatory evidence; and

excuse, ineffective assistance of counsel, or excusable

available at prior proceedings leading up to the judgment of

had been available at the trial leading to the judgment of

within the relevant scientific community; and

asserted by the inmate at the trial stage of the case, or in a retrial of that

demonstrating the innocence of the person of the offense or of

(2) in a capital case, would establish the applicant's actual innocence

at the prior proceedings leading to the judgment of conviction;

if the results had been available at the proceedings leading

discretion may consider any evidence regardless of whether it was

issue, or the terms of the sentence, the commitment under § 971.17, or

(4) The applicant identifies a theory of defense that--(A) is not inconsistent with an affirmative

(2) the evidentiary criteria have been met.

neglect; and

conviction;

conviction; or

(6) The motion is not made solely for the purpose of delay.

case in a court of this state, was of such a nature that, if DNA testing

the conduct and not to delay the execution of the sentence or

of the charged or uncharged conduct constituting an aggravating

(2) The evidentiary criteria have been met; and

to the judgment of conviction;

introduced at trial;

the disposition under ch. 938, would have been more favorable to the

defense presented at trial; and (B) would establish the actual innocence of the applicant of

(4) The petitioner consents to provide a biological sample

(2) The evidentiary criteria have been met; and

(b) DNA testing and analysis will produce exculpatory

is conducted and an exclusion result is obtained, the exclusion result

administration of justice; and

circumstance under § 9711(d) if the applicant's exoneration of the

(3) The petition before the Superior Court was filed in order to

(2) The evidentiary criteria have been met; and

(5) The testing requested employs a method generally accepted within

movant if the results of DNA testing had been available before he or she

the Federal or State offense referenced in the applicant's assertion under paragraph (1).

for DNA testing.

(3) The petition before the Superior Court was filed in order

evidence; and

will be outcome determinative; and

(5) There is a reasonable possibility that the testing will produce

conduct would result in vacating a sentence of death; or

demonstrate the petitioner's innocence and not to delay the

(3) The application for analysis is made for the purpose of

the relevant scientific community; and

was prosecuted, convicted, found not guilty by reason of mental disease

(5) If the applicant was convicted following a trial, the perpetrator's identity was an issue at trial.

to demonstrate the petitioner's innocence and not to delay

(2) The evidentiary criteria have been met.

(5) The court determines that, if DNA testing is conducted and an exclusion

exculpatory evidence that would establish the innocence of the

(3) in a capital case, would establish a mitigating circumstance under

administration of justice.

demonstrating innocence and not to unreasonably delay

(6) The motion is not made solely for the purpose of delay.

or defect, or adjudicated delinquent for the offense; and

(6) The DNA testing may produce new material evidence that would support the defense

the administration of justice.

result is obtained, the results of the testing will be outcome determinative

person of the offense for which he was convicted or conduct,

§ 9711(e)(7) under the circumstances set forth in subsection (c)(1)(4).

the execution of sentence or the administration of justice.

(2) The evidentiary criteria have been met.

theory in ¶ (4), and raise a reasonable probability that the applicant didn't commit the offense.

regarding that innmate.

if the exoneration of the conduct would result in a mandatory

(7) The applicant certifies that he will provide a DNA sample for purposes of comparison.

reduction in the person's sentence.

(8) The motion is made in a timely fashion, subject to the conditions noted above.

Which Laboratory

***

The court shall select a laboratory that meets the

The State Crime Laboratory; however, the court may

The testing shall be conducted by a laboratory mutually agreed

All testing shall be performed at a law enforcement

***

Any DNA testing ordered by the court shall be carried out by the Department

If the court orders testing, the court shall order that the evidence be tested by

***

When the petitioner qualifies for the test at public expense, the

***

If the court orders DNA testing and analysis, the court shall select a

***

The testing and analysis of the evidence shall be done

The testing shall be conducted by a laboratory mutually

If the court grants a motion for DNA analysis under this

If the court orders DNA testing, the court in its orders may issue

***

If the court grants a petition for DNA testing under

***

Such testing shall be conducted by a facility mutually agreed

The testing must be conducted by a laboratory mutually agreed

All forensic DNA tests shall be performed by a laboratory

The court shall select a forensic laboratory to conduct

***

If the parties agree upon a mutually acceptable laboratory that is

Testing under this provision shall only be performed by a

***

The court shall select a testing authority to be used for the testing from a

The System shall request the Oklahoma State Bureau of

Unless both parties agree otherwise, the court shall order

Any DNA testing ordered under this section shall be conducted:

Unless good cause is shown, all testing ordered under this section

***

If the court orders analysis, it shall select a laboratory that

The court may order the testing to be conducted by the

If the court grants the petition for testing, the DNA test shall be

***

The court shall order the tests to be performed by the Division of

The prosecutor shall request DNA testing by the Washington

Testing shall be conducted by a forensic laboratory in this state.

If appropriate and if stipulated by the movant and the district attorney,

***

The court shall direct that any DNA testing ordered under this section be

Tests the Evidence?

standards of the DNA advisory board to conduct the

order DNA testing by another qualified laboratory if the

upon by the district attorney in a noncapital case, or the Attorney

facility.

of Law Enforcement or its designee, as provided in § 943.3251.

the Division of Forensic Sciences of the Georgia Bureau of Investigation. In

forensic DNA test shall be performed by Idaho state police

laboratory that meets the quality assurance and proficiency testing

by the State Police laboratory or at another laboratory

agreed upon by the district attorney and the petitioner. If

section, the crime lab shall perform DNA analysis on the

orders the court considers appropriate, including designation of

this section, the identified biological material and a

upon by the movant and by the state and approved by the

upon by the petitioner, the attorney general, and the county

which is accredited by ASCLD/LAB or the NFSTC or by any

or oversee the analysis. The forensic laboratory selected

accredited by ASCLD/LAB or a laboratory that has a certificate of

laboratory that meets the minimum standards of the national

list of testing authorities approved or designated by the attorney general.

Investigation or the city in which the offense was committed

the Department of State Police to conduct the DNA testing.

(a) by a laboratory mutually selected by the Commonwealth and the

shall be conducted by the Rhode Island department of health.

meets the standards adopted pursuant to the DNA

Department of Public Safety, by a laboratory operating under

performed by the Utah State Crime Laboratory within the

Forensic Science. The Division of Forensic Science shall give

state patrol crime laboratory.

the court may order the state crime laboratories to perform the testing

carried out by the Federal Bureau of Investigation. Notwithstanding the prior

testing.

court makes all necessary orders to ensure the integrity

General in a capital case, and the person filing the motion. If the

addition, the court may also authorize the testing of the evidence by a

forensic services.

standards applicable to laboratories conducting forensic DNA

selected by the Kentucky State Police laboratory.

the parties cannot agree, the court shall designate a

identified evidence and on a DNA sample obtained from

any of the following: … (4) The laboratory where the testing is to

biological sample otained from the defendant shall

court. If the parties are unable to agree, the court shall

attorney in the county of conviction. If the parties cannot agree

other national accrediting body or public agency which has

by the court must: (1) be operated by this state or one of

compliance with national standards issued pursuant to 42 USC

DNA index system (CODIS).

The laboratories must be in compliance with nationally accepted quality

to perform the testing. The Bureau or the city may decline for

applicant; (b) if the Commonwealth and the applicant are unable to

Identification Act of 1994 (42 USC § 14131 et seq.).

contract with the department, or, on agreement of the parties,

Criminal Investigations and Technical Services Division created

testing priority to cases in which a sentence of death has been

as provided under § 165.77(2m).

sentence, the court may order DNA testing by another qualified laboratory if

of the specific evidence and the reliability of the testing

parties cannot agree, the court shall designate the laboratory to

laboratory that meets the standards of the DNA advisory board established

analysis under IC 10-13-6 [DNA database statute].

laboratory to perform the tests which is accredited by

the person.

be performed, provided that if the parties cannot agree on a

be subjected to DNA testing by a laboratory

designate the testing facility.

upon a laboratory, the court shall direct a laboratory of the court's

requirements that are substantially equivalent to or more

its political subdivision, when possible, and (2) satisfy

§ 14131 from the NFSTC, the testing shall be conducted by that

assurance standards for forensic DNA testing, pursuant to the standards

any reason at their discretion in writing within 30 days of

agree on a laboratory, a laboratory selected by the court that ordered

by another laboratory.

in § 53-10-103, unless the person establishes that the state

imposed.

the court makes all necessary orders to ensure the integrity of the specific

process and test results.

conduct the testing and shall consider designating a laboratory

pursuant to the DNA Identification Act of 1994 (42 USC § 14131) to conduct

ASCLD/LAB in forensic DNA analysis.

laboratory, the court may approve testing at any laboratory

appropved by the court.

choice to conduct the testing. At the request of the attorney

comprehensive than those or the society or center.

the standards for quality assurance that are established

laboratory. If the parties fail to agree, the testing shall be conducted

issued by the FBI. The laboratories must also undergo quality assurance

receipt of the request. In those cases where the Bureau or

the testing; or (c) if the applicant is indigent, the testing shall be

crime laboratory has a conflict of interest or does not have the

evidence and the reliability of the testing process and test results.

accredited by ASCLD/LAB.

the testing.

accredited by ASCLD, LAB, or NFSTC.

general or the county attorney of the county of conviction, the

for forensic laboratories by the FBI.

by the New Jersey State Police Forensic Science Laboratory. For

audits pursuant to the FBI standards. If the eligible inmate objects to the

the city declines or fails to respond within 30 days, or cannot

conducted by the Pennsylvania State Police or, at the Pennsylvania

capacity to perform the necessary testing.

court shall order the evidence submitted to an additional

good cause shown, however, the court may direct the evidence to

court's selection of a particular testing authority, the court shall rescind its

perform the testing within a reasonable time, the System may

State Police's sole discretion, by a laboratory designated by the

laboratory designated by the requester for additional testing.

an alternative laboratory that is accredited by ASCLD/LAB or has a

prior acceptance of the application for DNA testing for the inmate and deny

request the professional services of experts under contract

Pennsylvania State Police.

certificate of compliance with national standards issued pursuant

the application. Such a rescission and denial does not preclude a court

with the System as necessary for testing and presentation of

Testing conducted by the Pennsylvania State Police shall be carried

to 42 USC § 14131 from the NFSTC.

from accepting, in its discretion, a subsequent application by the inmate.

such claims to the appropriate prosecuting agency.

out in accordance with its established protocols and procedures.

Is There Additional

***

The court may make other orders that the court deems

The court shall impose reasonable conditions on the

If the court grants the motion for DNA testing, the court order

***

The court shall impose reasonable conditions on the

***

If the court orders testing, the court shall determine the method of testing.

***

The court shall allow the testing under reasonable conditions

The trial court shall allow the testing under reasonable

The court may make any other orders that the court considers

***

The court may make any other orders that the court

If the court orders the testing performed at a private

***

If the court orders DNA testing, the court in its orders may issue

***

The court shall impose reasonable conditions on the testing

***

The court shall impose reasonable conditions on the testing

If the court grants the petition, the court shall identify the

***

The court shall order the analysis to be conducted promptly

***

If the court grants the motion for DNA testing, the court order shall

***

Neither the prosecution nor defense shall consume the

In granting a motion under this section, the court may impose

The court shall order the testing under reasonable conditions designed

***

The court may in its discretion make such other orders as

If the convicting court orders that testing be conducted by a lab

If the court orders that the testing be conducted by any

The court shall order the method of custody, transfer, and return

***

If the court grants the motion for DNA testing, the court order shall

The court may impose reasonable conditions on any testing ordered

***

Court Oversight of the

appropriate, including designating any of the following:

testing designed to protect the state's interests in the

shall identify the specific evidence to be tested and the DNA

testing designed to protect the state's interests in the

designed to protect the state's interests in the integrity of the

conditions designed to protect the state's interests in the

appropriate, including designating any of the following:

deems appropriate, including designating any of the

laboratory, the district attorney shall have the right to

orders the court considers appropriate, including designation of

designed to protect the state's interests in the integrity of the

to protect the state's interests in the integrity of the evidence

evidence to be tested.

under reasonable conditions designed to protect the interest

identify the specific evidence to be tested and the DNA technology

entire sample in testing in the absence of a court order

reasonable conditions designed to protect the interests of

to preserve the integrity of the evidence and the testing process.

may be appropriate.

other than a Dept. of Public Safety lab (or a contracting lab), the

laboratory other than the state crime laboratory, the court shall

of evidence submitted for scientific investigation sufficient to insure

identify the specific evidence to be tested and the DNA technology

under this section in order to protect the integrity of the evidence and

Testing Process?

(1) The type of DNA testing to be used;

integrity of the evidence and the testing process.

technology to be used.

integrity of the evidence and the testing process.

evidence and the testing process.

integrity of the evidence and the testing process.

(1) The type of DNA testing and analysis to be used.

following:

withhold a sufficient portion of any unknown sample for

any of the following:

evidence and the testing process.

and the testing process.

The court shall impose reasonable conditions on the testing

of the State in the integrity of the evidence and analysis process.

to be used.

allowing the sample to be entirely consumed in testing.

the state in the integrity of the evidence and the testing

court shall require that (1) the DNA testing be conducted under

require that the testing be performed under reasonable

and protect the Commonwealth's interest in the integrity of the

to be used.

the testing process.

(2) The procedures to be followed during the testing;

If testing by the state crime lab is aproved by the

(2) That the DNA testing and analysis satisfies the pertinent rules

(a) The preservation of some of the sample for

purposes of his independent testing. [See Art. 926.1G

(1) The specific evidence to be tested;

designed to protect the parties' interests in the integrity of the

The analysis to be performed and evidence to be analzyed must:

process.

reasonable conditions designed to protect the integrity of the

conditions designed to protect the state's interests in the

evidence.

(3) The preservation of some of the sample for

court, the samples shall be of sufficient quantity to

concerning the admission of scientific evidence or testimony in the

replicating the testing and analysis; and

for additional details].

(2) The method of testing to be used;

evidence and the testing process.

(1) be specified in the order; and (2) include such analysis, testing

The court may order a second test upon a showing that the

evidence and the testing process, (2) the DNA testing employ a

integrity of the evidence, and that the testing be performed

replicating the testing;

allow testing by both the prosecution and defense, and

Indiana Rules of Evidence.

(b) Elimination samples from third parties.

(3) The preservation of some of the sample for replication

and comparison of genetic marker information contained in the

state police failed to follow appropriate DNA protocols and

scientific method sufficiently reliable and relevant to be admissible

according to accepted scientific standards and procedures.

(4) Elimination samples from third parties.

neither party shall consume the entire sample without

(3) The procedures to be followed during the DNA testing and analysis

testing and analysis;

evidence and the genetic marker information of the petitioner as

that failure reasonably affected the accuracy of the DNA test.

under Texas Rule of Evidence 702; and (3) on completion of the

a court order to that effect.

(4) The preservation of some of the sample for replication of the

(4) The laboratory where the testing is to be performed; or

the court determines appropriate under the circumstances.

DNA testing, the results of the testing and all data related to the

DNA testing and analysis.

(5) Release of biological evidence by a third party.

The court shall order the preservation of evidence used in an

testing required for an evaluation of the test results be immediately

(5) Elimination samples from third parties (see § 35-38-7-15(b)).

The court may set a deadline for testing (see notes below).

analysis for purposes of a subsequent proceeding/analysis, if any.

filed with the court and served upon both parties to the motion.

Who Pays for the

***

In cases where the court "shall order" testing, the court

The court may order the person who requested any

The cost of DNA testing shall be borne by the state or the applicant,

The petitioner shall pay for the testing. If the petitioner is

The costs of the DNA testing shall be borne by the state or the

The costs of DNA testing shall be borne by the state or

If the court orders DNA testing of the physical evidence, the cost of such

If the court orders testing, the court shall determine the method of testing and

***

The cost of the forensic DNA test shall be at the petitioner's

***

If the court orders DNA testing and analysis, the court shall order the

***

The cost of DNA testing shall be borne by the state or

In cases where the court "shall order" testing, the court

There is hereby created in the state treasury a special

If the person is able, the person shall pay for the cost of

The petitioner shall pay the cost of DNA testing; except, if the

***

If the court determines that the applicant is indigent,

***

If the results of the DNA testing confirm the person's guilt,

The court shall order a petitioner who is able to do so to pay the

The costs of DNA testing shall be paid by the person filing

The expense of an analysis ordered pursuant to this

***

The costs of the DNA testing ordered pursuant to this section

The cost of DNA testing ordered pursuant to this section

***

The defendant shall be responsible for bearing the cost of

***

[The statute does not address this issue, but only the issue of court costs:

Not Applicable, as this statute applies only to indigents.

The costs of DNA tests ordered under this section must be

The costs of any testing ordered under this section shall be paid by

Unless the justice hearing the motion finds that the defendant has

***

In the case of an order issued pursuant to § 40-30-304

If the convicting court orders that the forensic DNA testing be

If the person is serving a sentence of imprisonment and is

***

If testing was requested by the state, or if the individual is indigent,

A court may order a movant to pay the costs of any testing ordered by

***

The costs of any DNA testing ordered under this section shall be paid--

Costs of Testing?

shall order the method and responsibility for payment.

DNA testing under this subchapter to pay for the cost of the

as the court may order in the interests of justice, if it is shown that

indigent and represented by either the public defender or

petitioner, as the court may order in the interests of justice,

the applicant, as the court may order in the interests of

testing may be addressed against the sentenced defendant unless he or she

the responsibility for payment for the cost of testing, if necessary, and may

expense, except to the extent that the petitioner qualifies for the

method and responsibility for the payment of any costs associated

the petitioner, as the court may order in the interests

shall order the responsibility for payment, if necessary.

fund designated as the DNA Testing Post-Conviction

the DNA analysis. If the court finds that the person is

results of the DNA testing are favorable to the petitioner, the

the cost of DNA testing ordered under this section

then the person shall be liable for any reasonable costs

costs of testing. If the petitioner is unable to pay, the court shall

the motion, unless the court determines such person to be

section is a charge against the Department of Corrections

shall be borne by the convicted person.

shall be borne by the state or the petitioner, as the district

any DNA testing ordered under this section, unless the

Notwithstanding any other provision of law regarding fees and costs,

paid by:

the applicant, or in the case of an applicant who is indigent, by the

the present ability to pay the costs associated with DNA testing,

(mandatory testing), the court shall order the analysis and

conducted by a laboratory other than a Department of Public Safety

indigent, the state shall pay the costs of the testing under this

the cost of DNA testing shall be borne by the state.

the court under this section if the court determines that the movant is

(A) by the applicant; or (B) in the case of an applicant who is indigent, by

In cases where the court "may order" testing, the court

testing if the court determines that the person has

the applicant is not indigent and possesses the ability to pay.

alternative defense counsel, and with the approval of

except that DNA testing shall not be denied because of the

justice, if it is shown that the applicant is not indigent and

is indigent. If the sentenced defendant is indigent, the state shall bear the

require the petitioner to pay the costs of testing if the court determines that the

test at public expense pursuant to chapter 8, title 19, Idaho

with the DNA testing and analysis.

of justice, if it is shown that the petitioner is not

In cases where the court "may order" testing, the court

Relief for Indigents Fund. If the court finds that a

indigent, the crime lab shall pay for the cost of DNA

court shall order the State to pay the costs of testing.

shall be borne by the state.

incurred when conducting the DNA test, including but not

order the state to pay the costs of testing. The court shall order

indigent. If the person filing such motion is determined by

and must be paid upon approval by the Board of State

court may order in the interest of justice. Provided, that a

court determines the defendant is indigent, in which event

no filing fee shall be required of, and no court costs shall be assessed

(1) The person making the motion for DNA testing if the person

Commonwealth of Pennsylvania.

the justice shall order that the state of Rhode Island pay for the

payment, as necessary. In the case of an order under

laboratory or a laboratory under contract with the department, the

part, but if the result is not favorable to the person the court

not indigent.

the Government.

may require petitioner to pay the costs of testing.

the ability to pay for the testing.

However, the cost of any additional testing to be conducted by the

the public defender or the alternative defense counsel,

inability of the petitioner to pay the costs of such testing.

possesses the means to pay.

cost of the DNA testing ordered by the Court.

petitioner has the ability to pay. If the petitioner is indigent, the cost shall be

Code, in which case the fingerprint or forensic DNA test shall

indigent and possesses the means to pay.

shall require the petitioner to pay the costs of testing

petitioner under Code of Criminal Procedure Art. 926.1

analysis ordered under this section.

limited to the cost of the test. Such costs shall be

additional testing requested by the attorney general or the county

the court to be indigent, the costs shall be paid by the state.

Prison Commissioners as other claims against the State

petitioner shall not be denied testing because of his inability

the State shall bear the costs.

against, an eligible offender who is indigent and who submits an

is not incarcerated or, if the person is incarcerated, if the person

costs of the DNA testing ordered under this chapter.

§ 40-30-305 (discretionary testing), the court may require

State of Texas is not liable for the cost of testing.

may order the person to reimburse the state for the costs of

district attorney or Attorney General shall not be borne by the

the costs of the testing shall be paid from their budget.

paid from the fine and forfeiture fund as provided in Art. 3 of Chapter 5 of

be performed by, and paid for by funds allocated for, Idaho

and analysis, if required by KS 17.176.

is indigent, the fund shall pay for the testing as authorized

determined by the court and shall be included in the findings

attorney of the county of conviction to be paid for by the state.

are paid.

to pay for the cost of DNA testing.

application under this section.]

is financially able to pay; or

the petitioner to pay for the analysis.

the testing, pursuant to the provisions of subsections

convicted person.

Title 15.

state police forensic services.

in court order.

of fact and the conclusions of law made by the court.

(2) The state if counsel at state expense has been appointed

78-35a-302(4) and 78-35a-304(1)(b).

under the statute.

The person filing the petition for postconviction DNA testing

bears the cost of the testing unless: (a) the person is serving

a sentence of imprisonment; (b) the person is indigent; and

Is There a Right to

***

The court may appoint counsel for an indigent petitioner

A person financially unable to obtain counsel may

An indigent convicted person may request appointment of

If the court does not deny the petitioner's motion for

In a proceeding under this section, the petitioner shall have

***

Counsel may be provided to assist the sentenced defendant if the petition

***

The court may appoint defense counsel for the person who was

***

The court may at any time appoint counsel for an

If the court orders testing and analysis, the court shall

***

If the court finds that the person is indigent, the court

***

[The provision on counsel for indigent petitioners, § 590.05,

***

If a hearing is ordered, counsel shall be appointed to

***

Upon a showing by the person that DNA testing may be

***

The court shall appoint counsel for the convicted person who brings

If the petitioner satisfies the review criteria, the district

***

The court shall appoint counsel for the person who brings a

***

Not Applicable, as the Oklahoma Indigent Defense System

An incarcerated person may file a petition requesting the

***

[§ 10-9.1-5 provides for representation for indigent applicants

***

The court may, at any time during proceedings instituted

A convicted person is entitled to counsel during a proceeding

Subsections 78-35a-109(1) and (2), regarding the appointment

***

In any petition filed pursuant to this chapter, the defendant is

***

An indigent convicted person may request appointment of counsel to

A court considering a motion by a movant who is not represented by

***

The court may appoint counsel for an indigent applicant under this section in

Counsel?

at any time during any proceedings under this section.

apply for representation by the Arkansas Public

counsel to prepare a motion; the request must include a

testing, the court shall appoint counsel if the court

the right to be represented by counsel and, if the petitioner

proceeds to a hearing and if the court determines that the assistance of

convicted of the offense at any time during any proceedings under

indigent applicant.

appoint counsel to those petitioners who qualify for

may appoint counsel for the person at any time during

appears only to apply to those seeking a post-conviction

represent the movant if the movant is indigent.

relevant to the person's claim of wrongful conviction, the

a motion pursuant to this section if that person is indigent.

court shall appoint counsel for the petitioner, unless the

motion under this section if that person is indigent.

oversees the procedure by which testing is obtained for

appointment of counsel at state expense to assist the person

for post-conviction remedies. It is unclear whether this section

under this part, appoint counsel for an indigent petitioner.

under this chapter. The convicting court shall appoint counsel

of pro bono counsel, apply to any request for the appointment

entitled to representation by counsel subject to the provisions of

prepare a motion under this section by sending a written request to the

counsel shall, if the movant claims or appears to be indigent, refer the

the same manner as in a proceeding under section 3006A(a)(2)(B).

Defender Commission or appointed private attorneys.

statement that petitioner was not the perpetrator of the crime

determines the petitioner is indigent and has requested

is indigent, the court shall appoint counsel for the petitioner

counsel is necessary and makes the requisite finding of indigency.

this chapter if the person is indigent.

appointment under KRS Chapter 31.

the proceedings under this chapter.

remedy based on the results of post-conviction DNA testing.]

court shall appoint counsel for the indigent person.

petitioner waives counsel or retains his own counsel.

indigent petitioners.

in determining whether to file a motion for DNA testing. The

applies to motions for post-conviction DNA testing.]

for the convicted person if the person informs the court that the

of counsel under this part. Subsection 78-35a-109(3),

Article 3 of Chapter 10 of this title.

court. The request must include the person's statement that he or she

movant to the state public defender for determination of indigency and

The trial public defenders or appointed private

and that DNA testing is relevant to petitioner's assertion of

counsel. If the court finds that the motion, files and

in accordance with section 51-296 of the general statutes.

petition must be accompanied by an affidavit stating that:

person wishes to submit a motion under this chapter, the court

regarding effectiveness of counsel, applies to subsequent

was not the perpetrator of the crime and that DNA testing is relevant to

appointment of counsel under § 977.05(4)(j).

attorneys may represent the indigent persons.

innocence, and a statement whether counsel has previously

record will not meet the requisite criteria for DNA testing

(1) The person meets eligibility criterion (1) [see above];

finds reasonable grounds for the motion to be filed, and the court

postconviction petitions and to appeals under this part.

his or her assertion of innocence. The request must also include the

been appointed under this section. If petitioner is indigent and

(see above), then the court shall deny the motion without

(2) The person is innocent of the charge for which he was

determines that the person is indigent.

person's statement as to whether he or she previously had appointed

had not previously been represented by counsel for DNA testing,

appointment of counsel.

convicted or the conduct that resulted in a mandatory

counsel under this section. Upon a finding of indigency, the inclusion of

the court shall appoint counsel to investigate and, if appropriate,

sentence enhancement; and

the required information, and that counsel has not previously been

file a motion for DNA testing and represent petitioner solely for

(3) The identity of the perpetrator of the crime or conduct was

appointed pursuant to this subdivision, the court shall appoint counsel.

that purpose. If the indigent petitioner had been previously

at issue in the original prosecution.

Counsel shall investigate, and if appropriate, file a motion for DNA testing

represented by appointed counsel, the court has discretion

The court shall grant the petition if the above requirements have

under this section. If counsel has previously been appointed under

whether or not to appoint counsel to further investigate the matter.

been met and if the person can't afford suitable counsel.

this subdivision, then the court has discretion in appointing counsel.

Is There a Right to

***

The appealing party, within 30 calendar days after

An order granting or denying a motion for DNA testing shall not be

***

An appeal from the court's order on the petition for postsentencing DNA

The petitioner or the state may appeal an order, decision, or judgement

***

An aggrieved person may not appeal as a matter of right

***

An aggrieved party may appeal the court's decision

[The provision on appeals, § 590.06, appears only to apply to

***

An order granting or denying a motion for DNA testing pursuant to

The petitioner shall have the right to appeal a district court's

***

If the inmate was sentenced to death for the offense, the inmate may seek

Determinations of reasonableness and acceptance of cases

***

§ 10-9.1-9 provides for appeals from final judgments entered in

***

An appeal under this chapter is to a court of appeals in the same

Subsection 78-35a-109(3), regarding effectiveness of

***

An action under this section or the performance of any attorney

A person denied a request for DNA testing has a right to

An order granting or denying a motion for DNA testing under this section

An appeal may be taken from an order entered under this section as

***

Appeal?

the entry of the order, shall file a notice of appeal if

appealable, and shall be subject to review only through petition for

testing may be taken by any adversely affected party.

rendered pursuant to this section.

from the denial of a motion to order DNA analysis. The

to grant or deny the petition for DNA testing by

those seeking a post-conviction remedy based on the results

this section may be appealed, pursuant to the Rules of Court.

denial of the requested DNA testing, a district court's final

leave of the supreme court to appeal the rejection to the supreme court.

for which DNA testing will be performed shall be within the

a proceeding brought under chapter 9.1 of title 10.

manner as an appeal in any other criminal matter, except that if the

counsel, applies to appeals under this part.

representing the petitioner under this section shall not form the basis

appeal his or her request within 30 days of denial of the

is not to be appealable and is subject to review only through a petition

from a final judgment.

the party wishes to appeal. Either party may appeal.

writ of mandate or prohibition filed by the convicted person, the

time, manner and specific conditions for taking that appeal

application for leave granted by the court of appeals.

of post-conviction DNA testing.]

order on a petition or a district court's decision regarding

Courts of appeal do not have jurisdiction to review any rejection if the

sole discretion of the System and shall not be subject to

convicted person was convicted in a capital case and was

for relief in any habeus corpus proceeding or any other appeal.

request by the prosecutor. The appeal shall be to the

for writ of mandamus or prohibition filed with the supreme court of

district attorney, or the attorney general. The petition shall be filed

to the Supreme Judicial Court, sitting as the Law Court,

relief for the petitioner. The state shall have the right to

inmate was sentenced to death for the offense. If the inmate was not

judicial review.

sentenced to death, the appeal is a direct appeal to the court of

attorney general's office. If the attorney general's office

appeals by the person seeking DNA testing or the prosecuting attorney.

within 20 days after the court's order.

are as the Supreme Judicial Court provides by rule. The

appeal any final order issued by the district court. An appeal

sentenced to death for the offense, the rejection is a final appealable

criminal appeals.

determines that it is likely that the DNA testing would

The petition shall be filed within 20 days of the court's order granting

State may not appeal from a court order to grant a motion

shall be filed by a party within thirty days to the court of

order, and the inmate may appeal it to the court of appeals of the district

demonstrate innocence on a more probable than not basis,

or denying the motion for DNA testing. The court shall expedite its

to order DNA analysis.

appeals.

in which is located that court of common pleas.

then the attorney general's office shall request DNA testing

review of a petition for writ of mandamus or prohibition filed under

by the Washington state patrol crime laboratory.

this subsection.

Notes

***

*Alaska Stat. § 44.41.035

***

Notwithstanding any other provision of law, the right to file a motion

A petitioner shall not be entitled to relief based solely on

Public Act No. 03-242, "An Act Concerning the Collection of

***

Regardless of whether a petition has been filed under this chapter, if:

***

Nothing in this section shall be construed to limit the

***

Except in the case of willful or wanton misconduct or

Beginning in Jan. 2003 and annually thereafter, the

DNA testing shall be conducted as soon as practicable; except

***

Testing ordered by the court must be conducted as soon as

***

For the purposes of a genetic marker analysis pursuant to this

***

DNA testing ordered by the court pursuant to this section shall be

***

§ 440.30 deals primarily with the procedures for a motion

DNA testing ordered by the court pursuant to this section

***

This statute is longer and much more detailed than those of the other

Nothing in the DNA Forensic Testing Act shall require anyone

The President of the Senate and the Speaker of the

***

Nothing in this section shall constitute grounds to delay setting an

***

DNA testing ordered pursuant to this section shall be done as soon as

***

In any case in which the applicant is sentenced to death--

authorizes use of the DNA

for post-conviction DNA testing is absolute and shall not be waived.

an allegation that a law enforcement agency failed to

DNA Samples From Persons Convicted of a Felony, the

(1) A prosecuting attorney decides to order forensic DNA testing or

circumstances under which a person may obtain DNA

gross negligence, no clerk of court or law enforcement

Dept. of Public Safety shall report on post-conviction DNA

when based on a finding of necessity, the court may order that the

practicable, and if the court finds that a gross miscarriage of

section, a person under sentence of death who files a petition

done as soon as practicable.

to vacate or set aside a judgment, and only contains two

shall be done as soon as practicable. However, if the court

states. Please refer back to the original statute for more information.

other than an incarcerate to provide a sample from their body

House shall direct the appropriate interim committee

execution date pursuant to § 53.1-232.1 or to grant a stay of

practicable. However, if the court finds that a miscarriage of justice

(1) Any DNA testing ordered under this section shall be completed not later than 60 days

database for exoneration

DNA testing shall be done as soon as practicable. However, if the

preserve biological evidence.

Preservation and Testing of DNA Evidence and the Review

analysis that was not previously performed on biological evidence that

testing or other postconviction relief under any other

officer or law enforcement agency shall be held civilly

analysis to the Legislature. The report must include the

testing be completed by a date that the court provides.

justice would otherwise occur and that it is necessary in the

pursuant to this section shall be deemed to consent to:

paragraphs specific to forensic DNA testing.

finds that a miscarriage of justice will otherwise occur and

for purposes of testing.

to evaluate the post-conviction DNA system and

execution that has been set pursuant to § 53.1-232.1 (iii) or (iv).

will otherwise occur and that it is necessary in the interests of justice

after the date on which the Government responds to the motion for DNA testing; and

of the innocent.

court finds that a miscarriage of justice will otherwise occur and

This section does not create a duty to preserve biological

of Wrongful Convictions," was approved July 9, 2003.

is related to the investigation or prosecution that resulted in the

provision of law.

or criminally liable for the unavailability or deterioration

number of postjudgment of conviction analyses completed,

interests of justice to give priority to the DNA testing, the court

(1) submission of a biological specimen by him to determine his

that DNA testing is necessary in the interests of justice, the

make recommendations for its future.

Nothing in this section shall create any cause of action for damages

to give priority to the DNA testing, the court may require the DNA

(2) Not later than 120 days after the date on which the DNA testing ordered under this

that it is necessary in the interests of justice to give priority to the

evidence nor does it create a liability on the part of a law

person's conviction; and (2) the testing will consume the remaining

of any such evidence to the extent that adequate or

costs of the analyses and the results. The report also may

shall order a laboratory, if located in this state, to give the testing

genetic marker information; and (2) release and use of genetic

court shall order a delay of the proceedings or execution of

against the Commonwealth or any of its political subdivisions or any

laboratory to give priority to the DNA testing ordered pursuant to this

section is completed, the court shall order any post-testing procedures under subsection

DNA testing, a DNA lab shall be required to give priority to the

enforcement agency for failing to preserve biological

biological evidence; the prosecuting attorney must notify the person

proper testing cannot be performed on the evidence.

include recommendations to improve the postjudgment of

priority over any other pending casework of the laboratory.

marker information concerning the petitioner.

the sentence pending the DNA testing.

officers, employees or agents of the Commonwealth or its political

section over the laboratory's other pending casework.

(f) or (g) as appropriate [e.g., motion for a new trial or resentencing].

ordered DNA testing over the laboratory's other pending casework.

evidence.

of the proposed DNA testing and analysis.

The Department of Public Safety & Corrections must

conviction analysis process.

subdivisions.

The Attorney General shall establish a system for reporting and tracking motions filed under

number of petitions filed and the number of orders

this section, and within 2 years after enactment of the Act, shall submit a report to Congress

granting relief.

detailing the motions filed and the results of the motions filed under this section.