[Congressional Record Volume 167, Number 190 (Thursday, October 28, 2021)]
[Senate]
[Page S7478]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 3968. Ms. HIRONO submitted an amendment intended to be proposed to 
amendment SA 3867 submitted by Mr. Reed and intended to be proposed to 
the bill H.R. 4350, to authorize appropriations for fiscal year 2022 
for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe military personnel strengths for such fiscal year, and for 
other purposes; which was ordered to lie on the table; as follows:

       At the end of subtitle C of title V, add the following:

     SEC. 530C. PETITION FOR DNA TESTING UNDER THE UNIFORM CODE OF 
                   MILITARY JUSTICE.

       (a) In General.--Subchapter IX of chapter 47 of title 10, 
     United States Code (the Uniform Code of Military Justice), is 
     amended by inserting after section 873 (article 73) the 
     following new section:

     ``Sec. 873a. Art 73a. Petition for DNA testing

       ``(a) In General.--Upon a written petition by an accused 
     sentenced to imprisonment or death pursuant to a conviction 
     under this chapter (referred to in this section as the 
     `applicant'), the Judge Advocate General shall order DNA 
     testing of specific evidence if the Judge Advocate General 
     finds that all of the following apply:
       ``(1) The applicant asserts, under penalty of perjury, that 
     the applicant is actually innocent of the offense for which 
     the applicant is sentenced to imprisonment or death.
       ``(2) The specific evidence to be tested was secured in 
     relation to the investigation or prosecution of the offense 
     referenced in the applicant's assertion under paragraph (1).
       ``(3) The specific evidence to be tested--
       ``(A) was not previously subjected to DNA testing and the 
     applicant did not 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.
       ``(4) 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.
       ``(5) The proposed DNA testing is reasonable in scope, uses 
     scientifically sound methods, and is consistent with accepted 
     forensic practices.
       ``(6) The applicant identifies a theory of defense that--
       ``(A) is not inconsistent with an affirmative defense 
     presented at trial; and
       ``(B) would establish the actual innocence of the applicant 
     of the offense referenced in the applicant's assertion under 
     paragraph (1).
       ``(7) If the applicant was convicted following a trial, the 
     identity of the perpetrator was at issue in the trial.
       ``(8) The proposed DNA testing of the specific evidence may 
     produce new material evidence that would--
       ``(A) support the theory of defense referenced in paragraph 
     (6); and
       ``(B) raise a reasonable probability that the applicant did 
     not commit the offense.
       ``(9) The applicant certifies that the applicant will 
     provide a DNA sample for purposes of comparison.
       ``(10) The petition is made in a timely fashion, subject to 
     the following conditions:
       ``(A) There shall be a rebuttable presumption of timeliness 
     if the petition is made within five years of the date of the 
     enactment of the National Defense Authorization Act for 
     Fiscal Year 2022 or within three years after the date of the 
     entry of judgment under section 860c of this title (article 
     60c), whichever comes later. Such presumption may be rebutted 
     upon a showing--
       ``(i) that the applicant's petition for a DNA test is based 
     solely upon information used in a previously denied motion; 
     or
       ``(ii) of clear and convincing evidence that the 
     applicant's filing is done solely to cause delay or harass.
       ``(B) There shall be a rebuttable presumption against 
     timeliness for any petition not satisfying subparagraph (A). 
     Such presumption may be rebutted upon the Judge Advocate 
     General's finding--
       ``(i) that the applicant was or is incompetent and such 
     incompetence substantially contributed to the delay in the 
     applicant's motion for a DNA test;
       ``(ii) the evidence to be tested is newly discovered DNA 
     evidence;
       ``(iii) that the applicant's petition is not based solely 
     upon the applicant's own assertion of innocence and, after 
     considering all relevant facts and circumstances surrounding 
     the petition, a denial would result in a manifest injustice; 
     or
       ``(iv) upon good cause shown.
       ``(C) For purposes of this paragraph--
       ``(i) the term `incompetence' has the meaning given that 
     term in section 876b of this chapter (article 76b); and
       ``(ii) the term `manifest' means that which is 
     unmistakable, clear, plain, or indisputable and requires that 
     the opposite conclusion be clearly evident.
       ``(b) Appeal of Denial.--The applicant may appeal the Judge 
     Advocate General's denial of the petition of DNA testing to 
     the Court of Appeals for the Armed Forces.
       ``(c) Evidence Inventory; Preservation Order; Appointment 
     of Counsel.--
       ``(1) Inventory.--The Judge Advocate General shall order 
     the preparation of an inventory of the evidence related to 
     the case for which a petition is made under subsection (a), 
     which shall be provided to the applicant.
       ``(2) Preservation order.--To the extent necessary to carry 
     out proceedings under this section, the Judge Advocate 
     General shall direct the preservation of the specific 
     evidence relating to a petition under subsection (a).
       ``(3) Appointment of counsel.--The applicant shall be 
     eligible for representation by appellate defense counsel 
     under section 870 of this chapter (article 70).
       ``(d) Testing Costs.--The costs of any DNA testing ordered 
     under this section shall be paid by the Government.
       ``(e) Time Limitation in Capital Cases.--In any case in 
     which the applicant is sentenced to death--
       ``(1) any DNA testing ordered under this section shall be 
     completed not later than 60 days after the date on which the 
     test is ordered by the Judge Advocate General; and
       ``(2) not later than 120 days after the date on which the 
     DNA testing ordered under this section is completed, the 
     Judge Advocate General shall order any post-testing 
     procedures under subsection (f) or (g), as appropriate.
       ``(f) Disclosure of Test Results.--Reporting of test 
     results shall be simultaneously disclosed to the Government 
     and the applicant.
       ``(g) Post-testing Procedures; Inconclusive and Inculpatory 
     Results.--
       ``(1) Inconclusive results.--If DNA test results obtained 
     under this section are inconclusive, the Judge Advocate 
     General may order further testing, if appropriate, or may 
     deny the applicant relief.
       ``(2) Inculpatory results.--If DNA test results obtained 
     under this section show that the applicant was the source of 
     the DNA evidence, the Judge Advocate General shall--
       ``(A) deny the applicant relief; and
       ``(B) if the DNA test results relate to a State offense, 
     forward the finding to any appropriate State official.
       ``(h) Post-testing Procedures; Motion for New Trial or 
     Resentencing.--
       ``(1) In general.--Notwithstanding any provision of law 
     that would bar a motion under this paragraph as untimely, if 
     DNA test results obtained under this section exclude the 
     applicant as the source of the DNA evidence, the applicant 
     may file a petition for a new trial or resentencing, as 
     appropriate.
       ``(2) Standard for granting motion for new trial or 
     resentencing.--The applicant's petition for a new trial or 
     resentencing, as appropriate, shall be granted if the DNA 
     test results, when considered with all other evidence in the 
     case (regardless of whether such evidence was introduced at 
     trial), establish by compelling evidence that a new trial 
     would result in the acquittal of the applicant.
       ``(i) Relationship to Other Laws.--
       ``(1) Post-conviction relief.--Nothing in this section 
     shall affect the circumstances under which a person may 
     obtain DNA testing or post-conviction relief under any other 
     provision of law.
       ``(2) Habeas corpus.--Nothing in this section shall provide 
     a basis for relief in any Federal habeas corpus 
     proceeding.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of such subchapter is amended by inserting after 
     the item relating to section 873 (article 73) the following 
     new item:

``873a. Art 73a. Petition for DNA testing.''.
                                 ______