Chapter 697 Oregon Laws 2001

AN ACT

SB 667

Relating to criminal procedure.

Be It Enacted by the People of the State of Oregon:

SECTION 1. (1) A person may file in the circuit court in which the judgment of conviction was entered a motion requesting the performance of DNA (deoxyribonucleic acid) testing on specific evidence if the person:

(a) Is incarcerated in a Department of Corrections institution as the result of a conviction for aggravated murder or a person felony as defined in the rules of the Oregon Criminal Justice Commission; or

(b) Is not in custody but has been convicted of aggravated murder, murder or a sex crime as defined in ORS 181.594.

(2) A motion requesting the performance of DNA testing under this section must be filed in the circuit court no later than 48 months after the effective date of this 2001 Act.

SECTION 2. (1)(a) When a person files a motion under section 1 of this 2001 Act requesting the performance of DNA (deoxyribonucleic acid) testing on specified evidence, the motion must be supported by an affidavit. The affidavit must:

(A)(i) For a person described in section 1 (1)(a) of this 2001 Act, contain a statement that the person is innocent of the offense for which the person was convicted or of the conduct underlying any mandatory sentence enhancement; or

(ii) For a person described in section 1 (1)(b) of this 2001 Act, contain a statement that the person is innocent of the offense for which the person was convicted;

(B) Identify the specific evidence to be tested and a theory of defense that the DNA testing would support. The specific evidence must have been secured in connection with the prosecution, including the investigation, that resulted in the conviction of the person; and

(C) Include the results of any previous DNA test of the evidence if a previous DNA test was conducted by either the prosecution or the defense.

(b) The person must present a prima facie showing that:

(A) The identity of the perpetrator:

(i) Was at issue in the trial that resulted in the conviction of the person; or

(ii) If the person was documented as having mental retardation prior to the time the crime was committed, should have been at issue in the trial or plea agreement that resulted in the conviction of the person; and

(B) DNA testing of the specified evidence would, assuming exculpatory results, establish the actual innocence of the person of:

(i) The offense for which the person was convicted; or

(ii) Conduct, if the exoneration of the person of the conduct would result in a mandatory reduction in the person’s sentence.

(2) The court shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that:

(a) The requirements of subsection (1) of this section have been met;

(b) Unless the parties stipulate otherwise, the evidence to be tested is in the possession of a city, county, state or the court and has been subject to a chain of custody sufficient to establish that the evidence has not been altered in any material aspect;

(c) The motion is made in a timely manner and for the purpose of demonstrating the innocence of the person of the offense or of the conduct and not to delay the execution of the sentence or administration of justice; and

(d) There is a reasonable possibility that the testing will produce exculpatory evidence that would establish the innocence of the person of:

(A) The offense for which the person was convicted; or

(B) Conduct, if the exoneration of the person of the conduct would result in a mandatory reduction in the person’s sentence.

(3) In granting a motion under this section, the court may impose reasonable conditions designed to protect the interests of the state in the integrity of the evidence and the testing process.

(4) Unless both parties agree otherwise, the court shall order the Department of State Police to conduct the DNA testing. The court may order a second test upon a showing that the state police failed to follow appropriate DNA protocols and that failure reasonably affected the accuracy of the DNA test.

(5) The costs of DNA tests ordered under this section must be paid by:

(a) The person making the motion for DNA testing if the person is not incarcerated or, if the person is incarcerated, if the person is financially able to pay; or

(b) The state if counsel at state expense has been appointed under section 4 of this 2001 Act.

(6) The results of a DNA test ordered under this section must be disclosed to the person filing the motion and to the state.

(7) Notwithstanding the fact that an appeal of the conviction or a petition for post-conviction relief in the underlying case is pending at the time a motion is filed under section 1 of this 2001 Act, the circuit court shall consider the motion. If the court grants the motion, the court shall notify the court considering the appeal or post-conviction petition of that fact. When a court receives notice under this subsection, the court shall stay the appeal or post-conviction proceedings pending the outcome of the motion filed under section 1 of this 2001 Act and any further proceedings resulting from the motion.

SECTION 3. (1) If DNA (deoxyribonucleic acid) testing ordered under section 2 of this 2001 Act produces inconclusive evidence or evidence that is unfavorable to the person requesting the testing:

(a) The court shall forward the results to the State Board of Parole and Post-Prison Supervision; and

(b) The Department of State Police shall compare the evidence to DNA evidence from unsolved crimes in the Combined DNA Index System.

(2) If DNA testing ordered under section 2 of this 2001 Act produces exculpatory evidence, the person who requested the testing may file in the court that ordered the testing a motion for a new trial based on newly discovered evidence. Notwithstanding the time limit established in ORS 136.535 (1), a person may file a motion under this subsection at any time during the 60-day period that begins on the date the person receives the test results.

(3) Upon receipt of a motion filed under subsection (2) of this section and notwithstanding the time limits in ORS 136.535 (1) and (3), the court shall hear the motion as provided in ORS 136.535.

SECTION 4. (1) A person described in section 1 (1)(a) of this 2001 Act may file a petition in the circuit court in which the judgment of conviction was entered requesting the appointment of counsel at state expense to assist the person in determining whether to file a motion under section 1 of this 2001 Act. The petition must be accompanied by:

(a) A completed affidavit of eligibility for appointment of counsel at state expense; and

(b) An affidavit stating that:

(A) The person meets the criteria in section 1 (1)(a) of this 2001 Act;

(B) The person is innocent of the charge for which the person was convicted or of the conduct that resulted in a mandatory sentence enhancement;

(C) The identity of the perpetrator of the crime or conduct was at issue in the original prosecution or, if the person was documented as having mental retardation prior to the time the crime was committed, should have been at issue; and

(D) The person is without sufficient funds and assets, as shown by the affidavit required by paragraph (a) of this subsection, to hire an attorney to represent the person in determining whether to file a motion under section 1 of this 2001 Act.

(2) The court shall grant a petition filed under this section if:

(a) The petitioner complies with the requirements of subsection (1) of this section; and

(b) It appears to the court that the petitioner is financially unable to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the matter.

(3) When a court grants a petition under this section, the court shall appoint the attorney originally appointed to represent the petitioner in the action that resulted in the conviction unless the attorney is unavailable.

(4) An attorney appointed under this section:

(a) If other than counsel provided pursuant to ORS 151.460, is entitled to compensation and expenses as provided in ORS 135.055; or

(b) If counsel provided pursuant to ORS 151.460, is entitled to expenses as provided in ORS 135.055.

SECTION 5. The President of the Senate and the Speaker of the House of Representatives shall direct the appropriate interim committee to:

(1) Evaluate how sections 1 to 4 of this 2001 Act are being utilized and whether the goals of sections 1 to 4 of this 2001 Act are being achieved;

(2) Evaluate changes in technology regarding DNA (deoxyribonucleic acid) evidence and testing;

(3) Determine whether the 48-month time limit for filing motions should be extended;

(4) Determine whether mentally ill persons are being inappropriately denied access to DNA testing;

(5) Determine whether DNA evidence is being appropriately retained; and

(6) Determine whether any problems have arisen related to chain of custody of evidence if the evidence has not been retained by a city, a county, the state or the court.

Approved by the Governor July 2, 2001

Filed in the office of Secretary of State July 2, 2001

Effective date January 1, 2002

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