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2001 SESSION

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SB 1366 Storage and testing of certain evidence, writ of actual innocence.

Introduced by: Kenneth W. Stolle | all patrons    ...    notes | add to my profiles

SUMMARY AS PASSED: (all summaries)

Storage and testing of certain evidence, writ of actual innocence. Establishes a procedure for the storage, preservation and retention of human biological evidence in felony cases. The bill also establishes a procedure for a convicted felon to petition the circuit court that entered the conviction to apply for a new scientific investigation of human biological evidence. The following elements must be met for the court to order the testing: (i) the evidence was not known or available at the time the conviction became final or not previously tested because the testing procedure was not available at the Division of Forensic Science at the time; (ii) the chain of custody establishes that the evidence has not been altered, tampered with, or substituted; (iii) the testing is materially relevant, noncumulative, and necessary and may prove the convicted person’s actual innocence; (iv) the testing requested involves a scientific method employed by the Division of Forensic Science; and (v) the convicted person did not unreasonably delay the filing of the petition after the evidence or the test for the evidence became available. The petition must also state the reasons the evidence was not known or tested by the time the conviction became final and the reasons that the newly discovered or untested evidence may prove the actual innocence of the person convicted. A procedure for the issuance of a writ of actual innocence for persons convicted of a felony upon a plea of not guilty or for any person sentenced to death or convicted of (i) a Class 1 felony, (ii) a Class 2 felony or (iii) any felony for which the maximum penalty is imprisonment for life, is established. The petition is to be filed with the Supreme Court and must allege: (a) that the petitioner pleaded not guilty or that he is under a sentence of death or convicted of (i) a Class 1 felony, (ii) a Class 2 felony or (iii) any felony for which the maximum penalty is imprisonment for life; (b) that the petitioner is actually innocent of the crime for which he was convicted; (c) an exact description of the human biological evidence and the scientific testing supporting the allegation of innocence; (d) that the evidence was not previously known or available to the petitioner or his trial attorney of record at the time the conviction became final, or if known, was not subject to the scientific testing for the reasons set forth in the petition; (e) the date the test results under § 19.2-327.1 became known to the petitioner or any attorney of record; (f) that the petitioner or his attorney of record has filed the petition within 60 days of obtaining the test results under §19.2-327.1; (g) that the petitioner is currently incarcerated; (h) the reasons the evidence will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt; and (i) for any conviction that became final in the circuit court after June 30, 1996, that the evidence was not available for testing under § 9-196.11. A petitioner filing a writ of actual innocence is entitled to court-appointed counsel in the same manner as an indigent defendant in a criminal case. If the Supreme Court determines that a resolution of the case requires further development of the facts, it may order the circuit court to conduct a hearing to certify findings of fact on certain issues. After considering the petition and the Commonwealth’s response, the previous records of the case, the record of any hearing on newly tested evidence and any findings certified from the circuit court, the Supreme Court may dismiss the petition or vacate or modify the conviction. The provisions of the Act relating to the issuance of the writ of actual innocence become effective November 15, 2002. The rest of the Act becomes effective upon passage. This bill is identical to HB 1311 (Almand).


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