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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 16-112-207

Cal. Penal Code § 1405

Colo. Rev. Stat. Ann. §18-1-416

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 §§ 19-4901and 19-4902

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

Ind. Code Ann. §§ 35-38-7-18, 35-38-7-19

No statute

Kan. Stat. Ann. § 21-2512

Ky. Rev. Stat. Ann. § 422.285

La. Code Crim. Proc. Art. 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. §§ 547.037, 650.055

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

Neb. Rev. Stat. § 29-4123

Nev. Rev. Stat. §§ 176.0918, 176.0919

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-270

No statute

Ohio Rev. Code Ann. §§ 2953.71, 2953.72, 2953.81

Okla. Stat. Ann. 22 § 1371.1

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

Pa. Stat. Ann. 42 § 9543.1

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

No statute

Tenn. Code Ann. § 40-30-312

Tex. Crim. Proc. Ann. §§ Art. 64.04, 64.05

Utah Code Ann. §§ 78-35a-301 to 304

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

What are the

***

If the results of the postconviction deoxyribonucleic acid

***

If the results of the postconviction DNA testing and analysis are

***

If the results of DNA testing conducted under this section

If the results of the DNA testing and analysis are not

***

If the results of the DNA analysis show that the person is

If the results of the postconviction DNA testing are

***

If the results of the DNA testing show that the defendant is

***

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

If the test results are not favorable to the petitioner, the court shall:

***

The court shall dismiss a petition filed pursuant to this section if the

***

Notwithstanding any other provision of law, upon receiving

***

[As part of the application for DNA testing, the petitioner must

***

If DNA testing ordered under section 2 of this 2001 Act produces

***

If the results of the post-conviction DNA analysis are

After examining the results of testing under Article

If the result of postconviction DNA testing is not favorable

***

If the results of forensic deoxyribonucleic acid testing ordered

***

If DNA test results obtained under this section show that the applicant

Consequences if

testing are not favorable to the petitioner, the court shall

not favorable to the person who was convicted of the offense,

are unfavorable to the petitioner, the court:

favorable to the petitioner, the court shall dismiss the

the source of the evidence, the court shall deny any

unfavorable to the petitioner, the court shall dismiss

the source of the identified biological material, the court shall

the person filing for the DNA testing under § 547.035 shall:

(1) Notify the board of pardons and parole;

results of a genetic marker analysis performed pursuant to this

the results of the DNA testing conducted under G.S. 15A-269,

acknowledge that if the DNA test is conducted,] the state will not

inconclusive evidence or evidence that is unfavorable to the

not favorable to the petitioner, the court shall dismiss

64.03, the convicting court shall hold a hearing and

to the person, the court shall deny the person's petition, and

under this section are not supportive of the movant's claim, the

was the source of the DNA evidence, the court shall (A) deny the

the Results Do Not

dismiss the petition. The court may make further orders

the court:

(1) Shall dismiss the petition; and

petition. The court may make further orders as it deems

motion for a new trial. If the DNA analysis results show

the petition.

deny the motion for new trial. If the DNA test results show

(1) Be liable for any reasonable costs incurred when conducting

(2) Order the petitioner's test sample to be included in the DNA

section are not favorable to the petitioner.

the court shall conduct a hearing to evaluate the results and

offer the inmate a retest if an inclusion [unfavorable] result is

person requesting the testing:

the petition, and make such further orders as may be

make a finding as to whether, had the results been

the court shall:

court shall determine the disposition of the evidence specified

applicant relief; and (B) on motion of the Government--

Favor the Petitioner?

as it deems appropriate, including any of the following:

(1) Shall dismiss the person's petition; and

(2) In the case of a petitioner who is not indigent, may

appropriate, including any of the following:

that the person is the source of the evidence, the

The petitioner must also pay the costs of the testing.

that the defendant is the source of the identified biological

the DNA test, including but not limited to the cost of the test. Such

identification index established under 44-6-102 and the federal

If the results of an analysis are not favorable to the petitioner:

to determine if the results are unfavorable or favorable to

achieved relative to the testing and that, if the state were to offer

(1) The court shall forward the results to the State Board of Parole

appropriate.

available during the trial of the offense, it is reasonably

(1) report the unfavorable result to the Board of Pardons and

in the motion, subject to the following:

(1) Make a determination whether the applicant's assertion of actual

(1) Notifying the board of executive clemency or a

(2) May make any further orders that the court determines to be

assess the petitioner for the cost of such testing.

(1) Notifying the Department of Corrections and the

defendant's DNA record must be added to the state DNA

material, the defendant's DNA profile shall be provided to

costs shall be determined by the court and shall be included in the

combined DNA index (CODIS) offender database;

(1) Except as otherwise provided in paragraph (2), the Director of the

the defendant. If the results of DNA testing conducted under

a retest after an inclusion result, the policy would create an

and Post-Prison Supervision; and

probable that the person would not have been convicted.

Parole; and

(1) If a person other than the movant is in custody, the evidence is

innocence was false, and, if the court makes such a finding, may hold

probation department.

appropriate, including any of the following: (a) an order providing

Parole Board;

data base and state DNA data bank.

the Michigan state police for inclusion under the DNA

findings of fact and conclusions of law made by the court; and

(3) Notify any victim and the family of the victim that the test results

Dept. of Corrections shall, in due course, execute the sentence of death.

this section are unfavorable to the defendant, the court shall

atmosphere in which endless testing could occur and in which

(2) The Department of State Police shall compare the evidence to

(2) Order the person to pay the costs of the DNA testing

relevant to the proceeding that resulted in the person being in

the applicant in contempt;

(2) Requesting that the petitioner's sample be added to the

for notification of the parole board or a probation department, and

(2) Requesting that the petitioner's sample be added to the

identification profiling system act.

(2) Be sanctioned under the provisions of § 217.262 [delay

were not favorable to the petitioner; and

(2) If the judgment of death has been stayed because the execution date

dismiss the motion and, in the case of a defendant who is

postconviction proceedings could be stalled for many years.

DNA evidence from unsolved crimes in the Combined DNA Index

unless the petitioner has already paid that cost.

custody, the person has not been denied DNA testing or post-

(2) Assess against the applicant the cost of the DNA testing;

federal Combined DNA Index System offender database.

(b) An order requesting the petitioner's sample be added to the

Kentucky State Police database; and

eligibility for parole; deduction of costs from offender's account].

(4) Terminate the proceeding.

preceded the completion date of the genetic marker analysis, the judge

not indigent, shall assess the defendant for the cost of the

[See § 2953.71 for definition of "inclusion result".]

System.

conviction relief under this section, and the person has not waived

(3) Forward the finding to the Director of the Bureau of Prisons, who may

(3) Providing notification to the victim or family of the victim.

Indiana data base established under IC 10-13-6.

(3) Providing notification to the victim or family of the victim.

shall cause certified copies of his order staying the execution and the

testing.

The inmate or the state may enter the results of the testing into any

his or her right to preserve the evidence, the court shall order the

then deny, wholly or in part, the good conduct authorized under § 3632;

unfavorable results of the genetic marker analysis to be immediately

proceeding.

evidence preserved by a designee until all persons who are

(4) If the applicant is subject to the jurisdiction of the United States

forwarded to the district attorney. Upon receipt, the district attorney shall

entitled to have the evidence preserved are released from custody

Parole Commission, forward the finding to the Commission so that the

pursue the issuance of a new warrant of execution of the judgment of

(2) If the conditions in (1) are not present, the court shall determine

Commission may deny parole on the basis of that finding; and

death in the manner provided in NRS 176.495.

the disposition of the evidence and, if the evidence is to be

(5) if the DNA test results relate to a State offense, forward the finding to

preserved, by whom and for how long.

any appropriate State official.

In any prosecution of an applicant under chapter 79 for false assertions

or other conduct in proceedings under this section, the court, upon

conviction of the applicant, shall sentence the applicant to a term of

imprisonment of not less than 3 years, which shall run consecutively

to any other term of imprisonment the applicant is serving.

What are the

***

Notwithstanding any other provision of law that would bar a

***

Notwithstanding any law or rule of procedure that

***

Except at a time when direct appellate review is available,

***

In the event the fingerprint or forensic DNA test

***

Notwithstanding any law that would bar a trial as untimely, if the

***

If the results of DNA testing conducted under this section

In a capital case in which the death penalty has been

***

If the results of the DNA analysis show that the person is

If the results of the postconviction DNA testing are

***

If the results of the DNA testing show that the defendant is

***

If testing ordered pursuant to § 547.035 demonsrates a person's

If the test results are favorable to the petitioner, the court shall

Upon receipt of the results of such testing, any party

If the results of a genetic marker analysis performed pursuant to this

***

If the results of the DNA testing are exculpatory, the

***

Notwithstanding any other provision of law, upon receiving

***

The inmate or the state may enter the results of the testing into any

***

If DNA testing ordered under section 2, chapter 697, Oregon

After the DNA testing conducted pursuant to this section has

***

If the results of the post-conviction DNA analysis are

After examining the results of testing under Article

If the result of postconviction DNA testing is favorable to the

***

[§§ 19.2-327.2 et seq. detail the procedures for obtaining

***

If the results of forensic deoxyribonucleic acid testing ordered

***

Notwithstanding any law that would bar a motion under this paragraph as

Consequences if

hearing as untimely, if the results of the postconviction

bars a motion for post-conviction review as untimely,

a person convicted of a crime who claims that DNA

results demonstrate, in light of all admissible evidence,

results of postconviction DNA testing and analysis are favorable

are favorable to the petitioner, the court shall:

imposed, notwithstanding any other provision of law that

not the source of the evidence and the person does not have

favorable to the petitioner, the court shall:

not the source of the identified biological material, the court

innocence of the crime for which the person is in custody, a

order a hearing and after the hearing shall make appropriate orders

may request a hearing before the court when such

section are favorable to the petitioner:

district court may set aside the petitioner's judgment

the results of the DNA testing conducted under G.S. 15A-269,

proceeding.

Laws 2001, produces exculpatory evidence, the person who

been completed, the applicant may, pursuant to § 9545(b)(2),

favorable, the court shall order a hearing, notwithstanding

64.03, the convicting court shall hold a hearing and

person, the person may file a motion to vacate his conviction.

a writ of actual innocence, based on results obtained

under this section support the movant's claim, the court shall

untimely, if DNA test results obtained under this section exclude the

the Results Do

deoxyribonucleic acid testing are favorable to the petitioner,

a petitioner may use the results of a DNA test ordered

evidence not available at trial establishes the petitioner's

that the petitioner is not the person who committed the

to the person who was convicted of the offense, the court shall

(1) Order a hearing, notwithstanding any provision of law

would bar a hearing as untimely, if the results of the DNA

counsel, the court shall appoint counsel if the court finds that

(1) If no postconviction proceeding has been previously

shall appoint counsel pursuant to MCR 6.505(a) and hold a

motion for release may be filed in the sentencing court. The

pursuant to applicable statutes regarding postconviction

results exonerate or exculpate the person. Following

(1) The petitioner may bring a motion for a new trial based on the ground

and sentence, may dismiss the charges against the

the court shall conduct a hearing to evaluate the results and

requested the testing may file in the court that ordered the

during the 60-day period beginning on the date on which the

any provisions of law or rule of court that would bar such

make a finding as to whether, had the results been

The court shall give the state 30 days to respond in writing,

through scientific analysis of newly discovered or

schedule a hearing to determine the appropriate relief to be

applicant as the source of the DNA evidence, the applicant may file a

Favor the Petitioner?

the court shall order a hearing and make any further orders

pursuant to section 18-1-413 as the grounds for filing

actual innocence may commence a proceeding to secure

offense, the court shall order the appropriate relief.

order any of the following

that would bar such a hearing; and

testing and analysis are favorable to the petitioner, the

the person is indigent. The court shall then hold a hearing at

initiated by the petitioner under § 7-102 of this article,

hearing to determine by clear and convincing evidence all of

prosecutor shall file a response consenting to or opposing the

proceedings.

such hearing, the court may, on its own motion or upon

of newly discovered evidence pursuant to NRS 176.515; and

petitioner with prejudice, may grant the petitioner a new

to determine if the results are unfavorable or favorable to

testing a motion for a new trial based on newly discovered

applicant is notified of the test results, petition to the court for

a hearing as untimely, and thereafter make such orders

available during the trial of the offense, it is reasonably

to present evidence, and to be heard in oral argument prior

previously untested scientific evidence (§ 19.2-327.1).]

granted to the movant. After the hearing, and based on the

motion for a new trial or resentencing, as appropriate. The court shall

that are required pursuant to this article or the Arizona Rules

a motion for post-conviction review under section

relief by filing a motion for a new trial in the court that

(1) Upon motion of the prosecuting attorney and good cause

(2) Enter any order that serves the interests of justice,

court shall order a hearing and make any further orders

which the person must establish by clear and convincing

open a postconviction proceeding under § 7-102 of this

the following:

motion. If the prosecutor consents to the motion and the court

the motion of any party, vacate and set aside the

(2) The restriction on the time for filing the motion set forth in subsection

trial or may order other appropriate relief.

the defendant. If the results of DNA testing conducted under

evidence. Notwithstanding the time limit established in ORCP

postconviction relief pursuant to § 9543(a)(2)(vi). Upon receipt

as are required or permitted by the rules of criminal

probable that the person would not have been convicted.

to issuing an order to vacate the conviction. The state may

results of the testing and any evidence or other matter presented

establish a reasonable schedule for the applicant to file such a motion

of Criminal Procedure.

18-1-410 and the Colorado rules of criminal procedure.

entered the judgment of conviction. The court may grant a

shown, order retesting of the identified biological material and

including, but not limited to, an order: (a) vacating and

that are required pursuant to this section or the Kentucky

evidence that:

article; or

(1) That only the perpetrator of the crime or crimes for which

finds that such testing demonstrates the movant's innocence of

judgment and release the person from custody based

3 of NRS 176.515 is not applicable.

this section are favorable to the defendant, the court shall

64F, a person may file a motion under this subsection at any

of a petition, the court shall consider the petition along with any

procedure or part 1 of this chapter.

stipulate to the conviction being vacated, or may request a

at the hearing, the court shall enter any order that serves the

and for the Government to respond to the motion. The court shall grant

new trial if the person establishes by clear and convincing

stay the petitioner's motion for a new trial pending the results of

setting aside the judgment; (b) discharging the petitioner

Rules of Criminal Procedure.

(1) Only the perpetrator of the crime or crimes for which the

(2) If a postconviction proceeding has been previously

the defendant was convicted could be the source of the

the crime for which he or she is in custody, the court shall order

upon final testing results exonerating or exculpating the

enter any order that serves the interests of justice, including

time during the 60-day period that begins on the date the person

answer filed by the Commonwealth and shall conduct a hearing

hearing and attempt to demonstrate the person's inability to

interests of justice, including any of the following:

the motion if the DNA test results, when considered with all other evidence

evidence that no reasonable trier of fact, considering the

the DNA retesting.

if the petitioner is in custody; (c) resentencing the

person was convicted could be the source of the evidence;

initiated by the petitioner under § 7-102 of this article,

identified biological material.

the movant's release from the sentence for the crime for which

person. If the court doesn't grant the above relief, any

an order that does any of the following:

receives the test results. Upon receipt of the motion, and

thereon. In any hearing on a petition for postconviction relief,

demonstrate, by clear and convincing evidence, his actual

(1) An order setting aside or vacating the movant's judgment of

in the case (regardless of whether such evidence was introduced at

evidence presented at trial, evidence that was available at

(2) Upon joint petition of the prosecuting attorney and the

petitioner; or (d) granting a new trial.

(2) The evidence was collected, handled and preserved by

reopen a postconviction proceeding under § 7-104

(2) That the identified biological material was collected,

testing occurred. If the prosecutor files a response opposing

party may file a motion fo ra new trial under sections

(1) Vacates and sets aside the judgment.

notwithstanding the time limits in ORCP 64F, the court shall

the court shall determine whether the exculpatory evidence

innocence of the offense for which he was convicted, and

conviction, judgment of not guilty by reason of mental disease or

trial), establish by compelling evidence that a new trial would result in an

trial but was not presented or was excluded, and the

petitioner, order the release of the person.

procedures that allow the court to find that the evidence is

of this article.

handled, and preserved by procedures that allow the court

the movant's release, the court shall conduct a hearing. If a

29-2101 to 29-2103.

(2) Discharges the defendant, if the

hear the motion.

resulting from the DNA testing conduncted under this section

all lesser included offenses, notwithstanding the favorable

defect, or adjudication of delinquency.

acquittal of--

evidence obtained pursuant to the motion for post-

(3) Order a new trial or any other relief as may be appropriate

not contaminated or is not so degraded that the DNA profile

If the results of the DNA testing that the court orders

to find that the identified biological material is not contaminated

hearing is ordered, the public defender shall be appointed to

defendant is in custody.

would have changed the outcome of the trial as required by

DNA results. If the state opposes vacating the conviction,

(2) An order granting the movant a new trial or fact-finding hearing.

(1) In the case of a motion for a new trial, the Federal offense for which

conviction DNA testing would have convicted the person.

under Indiana law or court rule.

of the analyzed sample of the evidence can not be determined

under this section are favorable to the petitioner, the

or is not so degraded that the DNA profile of the tested sample

represent the movant if the movant is indigent. The hearing shall

(3) Resentences the defendant.

§ 9543(a)(2)(vi).

the court shall consider al lthe evidence presented at the

(3) An order granting the movant a new sentencing hearing,

the applicant is under a sentence of imprisonment or death; and

to be identical to the DNA sample intially collected during the

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

of the identified biological material cannot be determined to be

be on the record. The movant shall have the burden of proving

(4) Grants a new trial.

original trial and at the hearing, including the new DNA test

commitment hearing, or dispositional hearing.

(2) In the case of a motion for resentencing, another Federal or State

investigation; and

identidical to the DNA profile of the sample initially collected

the allegations of the motion by a preponderance of the

result. Evidence that would otherwise have been suppressed

(4) An order discharging the movant from custody, as defined in

offense, if evidence of such offense was admitted during a Federal death

(3) The person's purported exclusion as the source of the

during the investigation leading to the defendant's conviction.

evidence. If the court finds that the testing ordered pursuant to

at criminal trial is admissible, unless the evidence is an

§ 968.025(1)(a), if the movant is in custody.

sentencing hearing and exoneration of such offense would entitle the

evidence, balanced against the other evidence in the case,

(3) That the defendant's purporter exclusion as the source of

§ 547.035 demonstrates the movant's innocence, the court

unconstitutionally coerced statement from the person. If the

(5) An order specifying the disposition of any evidence that

applicant to a reduced sentence or a new sentencing proceeding.

is sufficient to justify that the court grant a new trial.

the identified biological material, balanced against the other

shall order the movant's release from the sentence for the crime

court finds by clear and convincing evidence that the person

remains after the completion of the testing, subject to

evidence in the case, is sufficient to justify the grant of a new

for which the testing occurred. Otherwise, relief shall be denied

is actually innocent of the convicted offense and/or the lesser

§§ 974.07(9)(a) and (b).

trial.

the movant.

included offenses, the court shall vacate or modify the

A court may order a new trial (as above) without making the

convictions, as appropriate. If the court does not find, by clear

findings specified in §§ 805.15(3)(a) and (b).

and convincing evidence, actual innocence of the challenged

offense, the court shall deny the person's petition.

What are the

***

If the results of DNA testing conducted under this section

***

If the results of the DNA analysis are inconclusive…

***

If the results of the DNA testing are inconclusive, the court

***

If the test results are inconclusive, the court may order further

***

If DNA testing ordered under section 2 of this 2001 Act produces

***

After examining the results of testing under Article

The section on the consequences of unfavorable testing

***

If DNA test results obtained under this section are inconclusive,

Consequences if

are inconclusive, the court may order a hearing to

the court shall deny any motion for a new trial.

shall deny the motion for new trial.

appropriate testing or terminate the proceeding.

inconclusive evidence or evidence that is unfavorable to the

64.03, the convicting court shall hold a hearing and

results (§ 78-35a-304(1)) does not apply if the DNA test

the court may order further testing, if appropriate, or may deny the

the Results are

determine whether there is a substantial question of

person requesting the testing:

make a finding as to whether, had the results been

is inconclusive.

applicant relief.

Inconclusive?

innocence. If the petitioner proves by a preponderance

(1) The court shall forward the results to the State Board of Parole

available during the trial of the offense, it is reasonably

of the evidence that there is a substantial question of

and Post-Prison Supervision; and

probable that the person would not have been convicted.

innocence, the court shall proceed as if the results are

(2) The Department of State Police shall compare the evidence to

favorable to the petitioner.

DNA evidence from unsolved crimes in the Combined DNA Index

System.

May One Request

***

Upon motion of the attorney for the State, the court shall order

***

Upon motion of the prosecutor, the court shall order retesting of

***

Reanalysis of the

&nb