S1365

An Act concerning DNA evidence, amending P.L.2001, c.377 and P.L.1994, c.136 and supplementing Title 53 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.2001, c.377 (C.2A:84A-32a) is amended to read as follows:

1. a. Any person who was convicted of a crime [and is currently serving a term of imprisonment] may make a motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing.

(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 defendant was a significant issue in the case;

(b) explain in light of all the evidence, how if the results of the requested DNA testing are favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted;

(c) explain whether DNA testing was done at any prior time, whether the defendant objected to providing a biological sample for DNA testing, and whether the defendant objected to the admissibility of DNA testing evidence at trial. If evidence was subjected to DNA or other forensic testing previously by either the prosecution or the defense, the court shall order the prosecution or defense to provide all parties and the court with access to the laboratory reports, underlying data and laboratory notes prepared in connection with the DNA testing;

(d) make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought; and

(e) include consent to provide a biological sample for DNA testing.

(2) Notice of the motion shall be served on the Attorney General, the prosecutor 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 60 days of the date on which the Attorney General and the prosecutor are served with the motion, unless a continuance is granted. The Attorney General or prosecutor may support the motion for DNA testing or oppose it with a statement of reasons and may recommend to the court that if any DNA testing is ordered, a particular type of testing be conducted.

b. The court, in its discretion, may order a hearing on the motion. The motion shall be heard by the judge who conducted the

trial 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.

c. The court shall appoint counsel for the convicted person who brings a motion pursuant to this section if that person is indigent.

d. The court shall not grant the motion for DNA testing unless, after conducting a hearing, it determines that 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 that is 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 defendant was 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 offender;

(5) the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. 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 following conditions:

(a) it was not tested previously;

(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;

(7) the testing requested employs a method generally accepted within the relevant scientific community; and

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

e. 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.

(1) If the parties agree upon a mutually acceptable laboratory that is accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or a laboratory that has a certificate of compliance with national standards issued pursuant to 42 U.S.C.A. s.14131 from the National Forensic Science Technology Center, the testing shall be conducted by that laboratory.

(2) If the parties fail to agree, the testing shall be conducted by the New Jersey State Police Forensic Science Laboratory. For good cause shown, however, the court may direct the evidence to an alternative laboratory that is accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or a laboratory that has a certificate of compliance with national standards issued pursuant to 42 U.S.C.A. s.14131 from the National Forensic Science Technology Center.

(3) If a party seeks to conduct DNA testing at a non-NDIS-participating laboratory, such testing shall be conducted pursuant to the provisions of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

f. The result of any testing ordered pursuant to this section shall be fully disclosed to the person filing the motion, the prosecutor and the Attorney General. If requested by any party, the court shall order production of the underlying laboratory data and notes.

g. The costs of the DNA testing ordered pursuant to this section shall be borne by the convicted person.

h. An order granting or denying a motion for DNA testing pursuant to this section may be appealed, pursuant to the Rules of Court.

i. DNA testing ordered by the court pursuant to this section shall be done as soon as practicable.

j. DNA profile information from biological samples taken from a convicted person pursuant to a motion for post-conviction DNA testing in accordance with the provisions of this section shall be treated as confidential and shall not be deemed a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or the common law concerning access to public records; except as provided in section 2 of P.L.2001, c.377 (C.53:1-20.37).

k. As used in this act and in section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the terms "DNA," "DNA sample," DNA databank," "CODIS" and "FBI" shall have the meaning set forth in section 3 of P.L.1994, c.136 (C.53:1-20.19).

l. The court may order a law enforcement entity that has access to CODIS to submit DNA profile information obtained from probative biological material from crime scene evidence to determine whether it matches a DNA profile of a known individual or a DNA profile from an unsolved crime.

(cf: P.L.2001, c.377, s.1)

2. Section 5 of P.L.1994, c.136 (C.53:1-20.21) is amended to read as follows:

5. Tests shall be performed on each blood or other biological sample submitted pursuant to section 4 of P.L.1994, c.136 (C.53:1-20.20) in order to analyze and type the genetic markers contained in or derived from the DNA. Except insofar as the use of the results of these tests for such purposes would jeopardize or result in the loss of federal funding, the results of these tests shall be used for the following purposes:

a. For law enforcement identification purposes, including the identification of a match between DNA profile information obtained from crime scene evidence and the DNA profile of a known individual or the DNA profile from an unsolved crime;

b. For development of a population database;

c. To support identification research and protocol development of forensic DNA analysis methods;

d. To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes;

e. For research, administrative and quality control purposes;

f. For judicial proceedings, by order of the court, if otherwise admissible pursuant to applicable statutes or rules;

g. For criminal defense purposes, on behalf of a defendant, who shall have access to relevant samples and analyses performed in connection with the case in which the defendant is charged or convicted; and

h. For such other purposes as may be required under federal law as a condition for obtaining federal funding.

The DNA record of identification characteristics resulting from the DNA testing conducted pursuant to this section shall be stored and maintained in the State DNA database and forwarded to the FBI for inclusion in CODIS. The DNA sample itself will be stored and maintained in the State DNA databank.

(cf: P.L.2003, c.183, s.4)

3. (New section) a. As used in this section, an “NDIS-participating laboratory” is a laboratory that has been designated to operate the State DNA Index System and participate in the National DNA Index System and CODIS.

b. If a party seeks to conduct DNA testing at a non-NDIS-participating laboratory that otherwise meets the requirements set forth in paragraph 1 and paragraph 4 of section e. of section 1 of P.L.2001, c.377 (C.2A:84A-32a), the party may request the court to order the NDIS-participating laboratory within the State or relevant jurisdiction to evaluate the non-NDIS-participating laboratory for compliance with the FBI Quality Assurance Standards for Forensic DNA Testing Laboratories for the purpose of uploading crime scene profiles to the Combined DNA Index System. If the court so orders, within 45 days of receiving such a request the NDIS-participating laboratory shall complete the pre-approval process to determine if the non-NDIS-participating laboratory is in compliance with FBI Quality Assurance Standards for Forensic DNA Testing Laboratories, either by conducting its own site visit and assessment of the non-NDIS-participating laboratory or by obtaining and reviewing an on-site visit conducted by the FBI or another NDIS-participating laboratory. In the event that the requirements set forth in the FBI Quality Assurance Standards for Forensic DNA Testing Laboratories as of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) are amended or otherwise superseded, the NDIS-participating laboratory shall complete such other process as may be prescribed for the assessment of non-NDIS-participating laboratories.

4. This act shall take effect immediately.

STATEMENT

Under current law, certain persons convicted of crimes and seeking exoneration may request forensic DNA testing of evidence obtained from the crime scene. This bill is intended to facilitate such testing.

The bill: (1) authorizes the court to order law enforcement officials to submit DNA evidence from a crime scene to the Combined DNA Index System (“CODIS”) for testing and to order the State Police laboratory to evaluate private laboratories for compliance with certain FBI standards; and (2) allows convicted persons not currently serving a term of imprisonment to request forensic DNA testing.

Forensic DNA Testing and CODIS: Currently, under section 1 of P.L.2001, c.377 (C.2A:84A-32a), the court may order forensic DNA testing upon a motion by a person convicted of a crime and serving a term of imprisonment. However, the statute does not specifically authorize the court to order law enforcement officials to submit crime scene evidence to CODIS for a search to determine whether the evidence matches another person: either a known individual or an unknown individual whose DNA profile was obtained from an unsolved crime. This bill would provide the court with that specific authority.

Private Laboratories: The bill contains a provision intended to facilitate the use of accredited private labs for forensic DNA analysis. Under federal law, forensic DNA analysis may be conducted by either an “NDIS” lab or an accredited private lab (known as a “non-NDIS” lab), but the private lab must comply with certain additional requirements if the samples are to be uploaded to CODIS for a search for potential DNA matches. (An NDIS lab is one that has been designated to operate the State DNA Index System and participate in the National DNA Index System and CODIS.)

Because private labs do not have direct access to the CODIS database, any DNA profiles they produce can be uploaded to the system only with the assistance of an NDIS lab. In addition, before testing any samples in a particular case, the private lab must be evaluated by an NDIS lab and receive pre-approval in order for samples to be eligible for uploading to CODIS for a search for potential matches. Currently, if DNA samples are tested by an accredited lab but the lab has not been pre-approved by an NDIS lab, the results of the testing may be used in court, but may not be uploaded to CODIS for a search for potential matches. The bill provides that if a party seeks to conduct DNA analysis at a private lab that otherwise meets the accreditation requirements set forth in P.L.2001, c.377 (C.2A:84A-32a), that party may request the court to order the NDIS lab to evaluate the private lab. If the court so orders, within 45 days of receiving such a request the NDIS lab would be required to complete the pre-approval process to determine if the private lab is in compliance with FBI Quality Assurance Standards for Forensic DNA Testing Laboratories, either by conducting its own site visit and assessment of the private lab or by obtaining and reviewing an on-site visit conducted by the FBI or another NDIS lab. The bill also provides that in the event that the FBI requirements are amended or otherwise superseded, the NDIS lab would be required to complete such other process as may be prescribed for the assessment.

Motion by Person Convicted of a Crime: Under the statute, any person who has been convicted of a crime and is currently serving a term of imprisonment may make a motion before the court for forensic DNA testing. The bill provides that any person who has been convicted of a crime may make such a motion, whether or not the person is currently imprisoned.

Clarifying amendment: The bill also amends the “DNA Database and Databank Act of 1994,” P.L.1994, c.136 (C.53:1-20.17 et seq.), which requires persons convicted of crimes or arrested for certain crimes to submit blood or other biological samples for DNA testing. Under the statute, the test results are used for various purposes, including law enforcement identification; research and protocol development of forensic DNA analysis methods; and criminal defense on behalf of a defendant charged with a crime. This bill would clarify that the test results could also be used for defense purposes on behalf of a defendant convicted of a crime, and for the purpose of identifying a match between DNA profile information obtained from crime scene evidence and the DNA profile of a known individual or the DNA profile from an unsolved crime.