[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2441 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2441

To provide all prisoners with an opportunity to present exculpatory DNA 
                   evidence, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 2, 2002

  Mr. Specter introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To provide all prisoners with an opportunity to present exculpatory DNA 
                   evidence, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    (a) Short Title.--This Act may be cited as the ``Post-Conviction 
DNA Testing Act of 2002''.

SEC. 2. POST-CONVICTION DNA TESTING.

    (a) Federal Criminal Procedure.--
            (1) In general.--Part II of title 18, United States Code, 
        is amended by inserting after chapter 228 the following:

              ``CHAPTER 228A--POST-CONVICTION DNA TESTING

``Sec.
``3600. DNA testing.
``3600A. Prohibition on destruction of biological evidence.
``Sec. 3600. DNA testing
    ``(a) Motion.--
            ``(1) In general.--An individual imprisoned because of a 
        conviction of a criminal offense in a court of the United 
        States (referred to in this section as the `applicant') may 
        make a written motion to the court that entered the judgment of 
        conviction for the performance of forensic DNA testing on 
        specified evidence that was secured in relation to the 
        investigation or prosecution that resulted in the conviction.
            ``(2) Contents.--The motion shall--
                    ``(A) include an assertion by the applicant, under 
                penalty of perjury, that the applicant is actually 
                innocent of the crime for which the applicant is 
                imprisoned or of uncharged conduct, if the exoneration 
                of the applicant of such conduct would result in a 
                mandatory reduction in the sentence of the applicant;
                    ``(B) identify the specific evidence secured in 
                relation to the investigation or prosecution that 
                resulted in the conviction for which testing is 
                requested;
                    ``(C) identify a theory of defense--
                            ``(i) the validity of which would establish 
                        the actual innocence of the applicant, and 
                        explain how the requested DNA testing would 
                        substantiate that theory; and
                            ``(ii) that is not inconsistent with any 
                        affirmative defense issued by the applicant in 
                        the original prosecution;
                    ``(D) make a prima facie showing that the 
                conditions set forth in subsection (c) for issuance of 
                a testing order are satisfied; and
                    ``(E) certify that the applicant will provide a DNA 
                sample from the applicant for purposes of comparison.
            ``(3) Filing.--A motion filed under this section is timely 
        if--
                    ``(A) it is filed within 60 months of the date of 
                enactment of this section;
                    ``(B) the applicant can show that--
                            ``(i) the evidence identified pursuant to 
                        paragraph (2)(B) is newly discovered; and
                            ``(ii)(I) such evidence could not have been 
                        discovered through the exercise of due 
                        diligence; or
                            ``(II) the proximate cause for not having 
                        previously discovered such evidence was the 
                        deficient performance of the attorney of the 
                        applicant; or
                    ``(C) the applicant can show that--
                            ``(i)(I) the technology for the requested 
                        DNA testing was not available at the time of 
                        trial;
                            ``(II) it was not generally known that such 
                        technology was available at the time of trial; 
                        or
                            ``(III) the failure to request such testing 
                        using the technology was due to the deficient 
                        performance of the attorney of the applicant; 
                        and
                            ``(ii) if any of the evidence was 
                        previously subjected to DNA testing, the 
                        testing now requested uses a newer technology 
                        for DNA testing that is reasonably certain to 
                        provide results that are substantially more 
                        accurate and probative than any previous DNA 
                        testing of the evidence.
    ``(b) Notice to the Government; Preservation Order; Appointment of 
Counsel.--
            ``(1) Notice to the government.--Upon receipt of a motion 
        under subsection (a), the court shall promptly notify the 
        government of the motion and afford the government an 
        opportunity to respond to the motion.
            ``(2) Preservation order.--The court may direct the 
        government to preserve any evidence to which a motion under 
        subsection (a) relates to the extent necessary to carry out 
        proceedings under this section.
            ``(3) Appointment of counsel.--The court may appoint 
        counsel for an indigent applicant under this section in 
        accordance with section 3006A of this title.
    ``(c) Order for DNA Testing.--The court shall order the DNA testing 
requested in a motion filed under this section if--
            ``(1) the motion satisfies the requirements of subsection 
        (a);
            ``(2)(A) the identity of the perpetrator was at issue in 
        the trial that resulted in the conviction of the applicant; or
            ``(B) in a case where the applicant pled guilty, the 
        identity of the perpetrator would have been at issue at trial;
            ``(3) the 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 it has not 
        been substituted, contaminated, tampered with, replaced, or 
        altered in any respect material to the requested DNA testing;
            ``(4)(A)(i) the technology for the requested DNA testing 
        was not available at the time of trial;
            ``(ii) it was not generally known that such technology was 
        available; or
            ``(iii) the applicant can show that the failure to request 
        such testing was due to the deficient performance of the 
        attorney of the applicant; and
            ``(B) if any of the evidence was previously subjected to 
        DNA testing, the testing now requested uses a newer DNA testing 
        technique which is reasonably certain to provide results that 
        are substantially more accurate and probative than any previous 
        DNA testing of the evidence;
            ``(5) the proposed DNA testing uses scientifically sound 
        methods and is consistent with accepted forensic practice;
            ``(6) the proposed DNA testing is reasonable in scope; and
            ``(7) the court determines, after review of the record of 
        the trial of the applicant and any other relevant evidence, 
        that there is a reasonable probability that the results of the 
        proposed DNA testing will enable the applicant to establish 
        that the applicant is entitled to a new trial under the 
        standard of subsection (e)(3).
    ``(d) Testing Procedures; Reporting of Test Results.--
            ``(1) Testing procedures.--The court shall direct that any 
        DNA testing ordered under this section be carried out by--
                    ``(A) a laboratory mutually selected by the 
                government and the applicant; or
                    ``(B) if the government and the applicant are 
                unable to agree on a laboratory, a laboratory selected 
                by the court ordering the testing.
            ``(2) Laboratory approval.--With respect to DNA testing by 
        a laboratory in accordance with this subsection, other than an 
        FBI laboratory, the court must approve the selection of the 
        laboratory and make all necessary orders to ensure the 
        integrity of the evidence and the testing process and the 
        reliability of the test results.
            ``(3) Laboratory costs.--The applicant shall pay the cost 
        of any testing by a laboratory in accordance with this 
        subsection, other than an FBI laboratory, except that the court 
        shall pay, in accordance with section 3006A of this title, the 
        cost if the applicant would otherwise be financially incapable 
        of securing such testing.
            ``(4) Disclosure of test results.--The results of any DNA 
        testing ordered under this section--
                    ``(A) shall be disclosed to--
                            ``(i) the court;
                            ``(ii) the applicant;
                            ``(iii) the government; and
                            ``(iv) the appropriate agency under 
                        subsection (e)(3)(B)(ii); and
                    ``(B) shall be included in the Combined DNA Index 
                System if the conditions set forth in subsection (e)(2) 
                are met.
    ``(e) Posttesting Procedures.--
            ``(1) Inconclusive result.--If the DNA testing results are 
        inconclusive, the court may order further testing, as 
        appropriate, or may deny the applicant relief.
            ``(2) Positive result.--If DNA testing results obtained 
        under this section show that the applicant was the source of 
        the DNA identified as evidence under subsection (a)(2)(B), the 
        court shall--
                    ``(A) deny the applicant relief;
                    ``(B) submit the DNA testing results to the 
                Department of Justice for inclusion in the Combined DNA 
                Index System; and
                    ``(C) on motion of the government, proceed as 
                provided in paragraph (5)(A).
            ``(3) Negative result.--If DNA testing results obtained 
        under this section show that the applicant was not the source 
        of the DNA identified as evidence under subsection (a)(2)(B)--
                    ``(A) the court shall promptly--
                            ``(i) order any further DNA testing needed 
                        to clarify the import of the test results, 
                        including any testing needed to exclude persons 
                        other than the perpetrator of the crime as 
                        potential sources of the DNA evidence; and
                            ``(ii) determine whether the applicant is 
                        entitled to relief under paragraph (4); and
                    ``(B) the Attorney General shall--
                            ``(i) compare the DNA evidence collected 
                        from the applicant with DNA evidence in the 
                        Combined DNA Index System that has been 
                        collected from unsolved crimes;
                            ``(ii) if the comparison yields a DNA match 
                        with an unsolved crime, notify the appropriate 
                        agency and preserve the DNA sample; and
                            ``(iii) if the comparison fails to yield a 
                        DNA match with an unsolved crime, destroy the 
                        DNA sample collected from the applicant.
            ``(4) Exculpatory evidence.--If the DNA testing conducted 
        under this section produces exculpatory evidence--
                    ``(A) the applicant may, during the 60-day period 
                beginning on the date on which the applicant is 
                notified of the test results, make a motion to the 
                court that ordered the testing for a new trial based on 
                newly discovered evidence under rule 33 of the Federal 
                Rules of Criminal Procedure, notwithstanding any 
                provision of law that would bar such a motion as 
                untimely; and
                    ``(B) upon receipt of a motion under subparagraph 
                (A), the court that ordered the testing shall consider 
                the motion under rule 33 of the Federal Rules of 
                Criminal Procedure, notwithstanding any provision of 
                law that would bar such consideration as untimely.
            ``(5) Failure to obtain relief.--
                    ``(A) In general.--If the applicant fails to obtain 
                relief under this subsection, the court, on motion by 
                the government, shall make a determination whether the 
                assertion of innocence by the applicant was false.
                    ``(B) False assertion.--If the court finds that the 
                assertion of innocence by the applicant was false, the 
                court--
                            ``(i) may hold the applicant in contempt;
                            ``(ii) shall assess against the applicant 
                        the cost of any DNA testing carried out under 
                        this section; and
                            ``(iii) shall forward the finding to the 
                        Director of the Bureau of Prisons.
                    ``(C) Bureau of prisons.--On receipt of a finding 
                by the court under this paragraph, the Director of the 
                Bureau of Prisons may deny, wholly or in part, the good 
conduct credit authorized under section 3624 of this title, on the 
basis of that finding.
                    ``(D) Parole commission.--If the applicant is 
                subject to the jurisdiction of the United States Parole 
                Commission, the court shall forward its finding under 
                this paragraph to the Parole Commission, and the Parole 
                Commission may deny parole on the basis of that 
                finding.
                    ``(E) Penalty.--In any prosecution of an applicant 
                under chapter 79 of this title, 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 1 year, 
                which shall run consecutively to any other term of 
                imprisonment the applicant is serving.
    ``(f) Final Order.--An order granting or denying DNA testing under 
subsection (c), or an order granting or denying a new trial under 
subsection (e), is a final order for purposes of section 1291 of title 
28.
    ``(g) Time Limits Inapplicable; Other Remedies Unaffected.--
Notwithstanding any time limit otherwise applicable to motions for new 
trials based on newly discovered evidence, a court may grant relief 
under subsection (e) to an applicant, at any time.
    ``(h) Other Remedies Unaffected.--This section does not affect the 
circumstances under which a person may obtain DNA testing or 
postconviction relief under any other law or rule.
``Sec. 3600A. Prohibition on destruction of biological material
    ``(a) Prohibition.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, during the period described in paragraph (2), the 
        government shall not destroy any biological material preserved 
        if the defendant is serving a term of imprisonment following 
        conviction in a case.
            ``(2) Period described.--The period described in this 
        paragraph is the period beginning on the date of enactment of 
        this section and ending on the later of--
                    ``(A) the expiration of the 60-month period 
                beginning on that date of enactment; or
                    ``(B) the date on which any proceedings under 
                section 3600 relating to the case are completed.
    ``(b) Sanctions for Intentional Violation.--The court may impose 
appropriate sanctions, including criminal contempt, for an intentional 
violation of subsection (a).
    ``(c) Exceptions.--The government may dispose of evidence before 
the expiration of the period of time described in subsection (a) if--
            ``(1) other than subsection (a), no statute, regulation, 
        court order, or other provision of law requires that the 
        evidence be preserved; and
            ``(2)(A)(i) the government notifies any person who remains 
        incarcerated in connection with the investigation or 
        prosecution and any counsel of record for that person (or, if 
        there is no counsel of record, the public defender for the 
        judicial district in which the conviction for that person was 
        imposed), of the intention of the government to dispose of the 
        evidence and the provisions of this chapter; and
            ``(ii) the government affords such person not less than 180 
        days after such notification to make a motion under section 
        3600(a) for DNA testing of the evidence; or
            ``(B)(i) the evidence must be returned to its rightful 
        owner, or is of such a size, bulk, or physical character as to 
        render retention impracticable; and
            ``(ii) the government takes reasonable measures to remove 
        and preserve portions of the material evidence sufficient to 
        permit future DNA testing.''.
            (2) Technical and conforming amendment.--The analysis for 
        part II of title 18, United States Code, is amended by 
        inserting after the item relating to chapter 228 the following:

``228A.  Postconviction DNA Testing.........................    3600''.
    (b) Applicability.--The provisions and amendments in this section 
shall take effect on the date of enactment of this Act and shall apply 
with respect to any offense committed, and to any judgment of 
conviction entered, before, on, or after that date of enactment.
    (c) Report by the Attorney General.--
            (1) Tracking system.--
                    (A) In general.--The Attorney General shall 
                establish a system for reporting and tracking motions 
                under section 3600 of title 18, United States Code.
                    (B) Requested assistance.--The judicial branch 
                shall provide to the Attorney General any requested 
                assistance in operating a reporting and tracking system 
                and in ensuring the accuracy and completeness of 
                information included in that system.
            (2) Information.--Not later than 180 days before the 
        expiration of the time period referenced in section 
        3600(a)(3)(A) of title 18, United States Code, the Attorney 
        General shall submit a report to Congress containing--
                    (A) a summary of the motions filed under section 
                3600 of title 18, United States Code;
                    (B) information on whether DNA testing was ordered 
                pursuant to such motions;
                    (C) information on whether the applicant obtained 
                relief on the basis of DNA test results; and
                    (D) information on whether further proceedings 
                occurred following a granting of relief and the outcome 
                of those proceedings.
            (3) Assessment.--The report submitted under paragraph (2) 
        may also include--
                    (A) any other information that the Attorney General 
                believes will be useful in assessing the operation, 
                utility, or costs of section 3600 of title 18, United 
                States Code; and
                    (B) any recommendations that the Attorney General 
                may have relating to future legislative action 
                concerning section 3600 of title 18, United States 
                Code.

SEC. 3. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH AMENDMENT.

    (a) Application for DNA Testing.--No State shall deny an 
application for DNA testing made by a prisoner in State custody who 
would be eligible for such testing under the provisions of sections 
3600 and 3600A of title 18, United States Code.
    (b) DNA Testing Procedures.--The procedures for DNA testing for a 
prisoner in State custody shall be substantially similar to the DNA 
testing procedures established for Federal courts under sections 3600 
and 3600A of title 18, United States Code.
    (c) Remedy.--A prisoner in State custody may enforce subsections 
(a) and (b) in a civil action for declaratory or injunctive relief, 
filed either in a State court of general jurisdiction or in a district 
court of the United States, naming an executive or judicial officer of 
the State as a defendant.
                                 <all>