H. B. 3098
(By Delegates Fleischauer Amores, Webster,
Hrutkay, Foster, Palumbo and Staton)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend article two-b, chapter fifteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto a new section, designated section fourteen,
relating to providing a right to DNA testing for imprisoned
felons and requiring certain physical evidence be preserved.
Be it enacted by the Legislature of West Virginia:
That article two-b, chapter fifteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
fourteen, to read as follows:
ARTICLE 2B. DNA DATA.
§15-2B-14. Right to DNA testing.
(a) A person who was convicted of a felony and is currently
serving a term of imprisonment may make a written motion before the
trial court that entered the judgment of conviction in his or her
case, for performance of forensic deoxyribonucleic acid (DNA)
(b) (1) An indigent convicted person may request appointment
of counsel to prepare a motion under this section by sending a
written request to the court. The request shall include the
person's statement that he or she was not the perpetrator of the
crime and that DNA testing is relevant to his or her assertion of
innocence. The request also shall include the person's statement
as to whether he or she previously has had counsel appointed under
(2) If any of the information required in paragraph (1) is
missing from the request, the court shall return the request to the
convicted person and advise him or her that the matter cannot be
considered without the missing information.
(3) (A) Upon a finding that the person is indigent, he or she
has included the information required in paragraph (1), and counsel
has not previously been appointed pursuant to this subdivision, the
court shall appoint counsel to investigate and, if appropriate, to
file a motion for DNA testing under this section and to represent
the person solely for the purpose of obtaining DNA testing under
(B) Upon a finding that the person is indigent, and counsel
previously has been appointed pursuant to this subdivision, the
court may, in its discretion, appoint counsel to investigate and, if appropriate, to file a motion for DNA testing under this section
and to represent the person solely for the purpose of obtaining DNA
testing under this section.
(4) Nothing in this section shall be construed to provide for
a right to the appointment of counsel in a postconviction
collateral proceeding, or to set a precedent for any such right, in
any context other than the representation being provided an
indigent convicted person for the limited purpose of filing and
litigating a motion for DNA testing pursuant to this section.
(c) (1) The motion shall be verified by the convicted person
under penalty of perjury and shall do all of the following:
(A) Explain why the identity of the perpetrator was, or should
have been, a significant issue in the case.
(B) Explain, in light of all the evidence, how the requested
DNA testing would raise a reasonable probability that the convicted
person's verdict or sentence would be more favorable if the results
of DNA testing had been available at the time of conviction.
(C) Make every reasonable attempt to identify both the
evidence that should be tested and the specific type of DNA testing
(D) Reveal the results of any DNA or other biological testing
that was conducted previously by either the prosecution or defense,
(E) State whether any motion for testing under this section previously has been filed and the results of that motion, if known.
(2) Notice of the motion shall be served on the prosecuting
attorney in the county of conviction, and, if known, the
governmental agency or laboratory holding the evidence sought to be
tested. Responses, if any, shall be filed within sixty days of the
date on which the prosecuting attorney is served with the motion,
unless a continuance is granted for good cause.
(d) If the court finds evidence was subjected to DNA or other
forensic testing previously by either the prosecution or defense,
it shall order the party at whose request the testing was conducted
to provide all parties and the court with access to the laboratory
reports, underlying data, and laboratory notes prepared in
connection with the DNA or other biological evidence testing.
(e) The court, in its discretion, may order a hearing on the
motion. The motion shall be heard by the judge who conducted the
trial, or accepted the convicted person's plea of guilty or
nolocontendre, unless the presiding judge determines that judge is
unavailable. Upon request of either party, the court may order, in
the interest of justice, that the convicted person be present at
the hearing of the motion.
(f) The court shall grant the motion for DNA testing if it
determines all of the following have been established:
(1) The evidence to be tested is available and in a condition
that would permit the DNA testing requested in the motion.
(2) 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.
(3) The identity of the perpetrator of the crime was, or
should have been, a significant issue in the case.
(4) The convicted person has made a prima facie showing 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.
(5) The requested DNA testing results would raise a reasonable
probability that, in light of all the evidence, the convicted
person's verdict or sentence would have been more favorable if the
results of DNA testing had been available at the time of
conviction. The court in its discretion may consider any evidence
whether or not it was introduced at trial.
(6) The evidence sought to be tested meets either of the
(A) The evidence was not tested previously.
(B) 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.
(7) The testing requested employs a method generally accepted
within the relevant scientific community.
(8) The motion is not made solely for the purpose of delay.
(g) If the court grants the motion for DNA testing, the court
order shall identify the specific evidence to be tested and the DNA
technology to be used. The testing shall be conducted by a DNA
forensic laboratory in this state.
(h) The result of any testing ordered under this section shall
be fully disclosed to the person filing the motion and the
prosecuting attorney. If requested by any party, the court shall
order production of the underlying laboratory data and notes.
(i) The cost of DNA testing ordered under this section shall
be borne by the state or the applicant, as the court may order in
the interests of justice, if it is shown that the applicant is not
indigent and possesses the ability to pay. However, the cost of
any additional testing to be conducted by the prosecuting attorney
shall not be borne by the convicted person.
(j) An order granting or denying a motion for DNA testing
under this section shall not be appealable, and shall be subject to
review only through petition for writ of mandamus or prohibition
filed by the person seeking DNA testing or the prosecuting
attorney. The petition shall be filed within twenty days after the
court's order granting or denying the motion for DNA testing. The
petition for writ of mandate or prohibition shall be filed in the
supreme court. The court shall expedite its review of a petition for writ of mandate or prohibition filed under this subdivision.
(k) DNA testing ordered by the court pursuant to this section
shall be done as soon as practicable. However, if the court finds
that a miscarriage of justice will otherwise occur and that it is
necessary in the interests of justice to give priority to the DNA
testing, the DNA laboratory shall be required to give priority to
the DNA testing ordered pursuant to this section over the
laboratory's other pending casework.
(l) DNA profile information from biological samples taken from
a convicted person pursuant to a motion for postconviction DNA
testing is exempt from any law requiring disclosure of information
to the public.
(m) Notwithstanding any other provision of law, the right to
file a motion for postconviction DNA testing provided by this
section is absolute and shall not be waived. This prohibition
applies to, but is not limited to, a waiver that is given as part
of an agreement resulting in a plea of guilty or nolo contendre.
(n) Any law-enforcement agency or person acting under the
authority of a law-enforcement agency shall maintain all physical
evidence involving felonies committed within their jurisdiction
that may be probative of the matters for which a DNA test is
requested under the provisions of this section. The
law-enforcement agency shall maintain a verifiable chain of custody
of the evidence. In no case may the law-enforcement agency destroy or tamper with the probative evidence absent a court order.
NOTE: The purpose of this bill is to
provide a right to DNA
testing for imprisoned felons and requiring certain physical
evidence be preserved.
This section is new; therefore, strike-throughs and
underscoring have been omitted.