Senate Bill 2901

AN ACT TO CREATE THE MISSISSIPPI POST CONVICTION DNA TESTING ACT; TO PROVIDE THAT CONVICTED FELONS MAY APPLY FOR DNA TESTING FOR EXCULPATORY PURPOSES UNDER CERTAIN CIRCUMSTANCES; TO PROVIDE FOR NOTICE TO VARIOUS PARTIES; TO PROVIDE FOR COURT REVIEW; TO PROVIDE FOR LABORATORY SELECTION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as Section 99-39-5.1, Mississippi Code of 1972:

99-39-5.1. A person convicted of a felony may file an application under the provisions of this section of the Mississippi Uniform Post Conviction Collateral Relief Act requesting DNA testing of evidence containing biological material. The application must be signed by the applicant and must allege the following:

(a) That the applicant is factually innocent of the crime for which he was convicted, regardless of whether the applicant pled guilty or nolo contendere; and

(b) That evidence potentially suitable for DNA testing was secured in relation to the offense that is the basis of the challenged conviction, whether or nor it was used at trial; and

(c) (i) DNA testing was not performed on the evidence secured in relation to the offense either because DNA testing was not available, or was available but not technologically capable of providing probative results, or for any other reason that was not the fault of the convicted person; or

(ii) Although the evidence was previously subjected to DNA testing, it can now be subjected to newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative that the results of the previous test.

(2) The application shall be filed in the trial court where the applicant was convicted and served on the Attorney General, the district attorney of the county where the applicant was convicted, and the law enforcement agency in possession of the evidence. After service of the application, no evidence shall be destroyed that is relevant to a case in which an application for DNA testing has been filed until the case has finally been resolved the courts.

(3) After service of the motion, the court shall hold a hearing to determine that:

(a) The evidence still exists and is in a condition making DNA testing possible; and

(b) It has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced or altered in any material aspect. For purposes of this section, evidence that has been in the custody of law enforcement, other government officials, or a public or private hospital, shall be presumed to satisfy the chain of custody requirement of this subsection; and

(c) There is a reasonable doubt based on competent evidence, whether or not introduced at trial, as to the guilt of the applicant; and

(d) There is a reasonable likelihood that the requested DNA testing will resolve the doubt and establish the innocence or guilt of the applicant.

(4) If the court finds that all criteria have been met, the court shall order that the requested forensic DNA testing be conducted. A copy of the order shall be served on the Attorney General, the district attorney of the county where the applicant was convicted, and the law enforcement agency which has possession of the evidence to be tested, including, but not limited to, sheriffs, the Department of Public Safety, local police agencies and crime laboratories. If the court finds that the applicant did not satisfy all of the above requirements, it shall dismiss the application. An applicant may appeal the dismissal of the application for DNA testing to the Mississippi Supreme Court.

(5) Testing shall be conducted by a laboratory mutually agreed upon by the applicant and the district attorney. In the event that the two (2) parties cannot agree, the court shall designate a laboratory that is accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) in forensic DNA analysis to perform the tests.

(6) (a) The costs of testing shall be borne by the applicant, unless the applicant is found to be indigent, in which case the costs of testing shall be borne by the state. No other public money may be used to pay for the DNA testing authorized under the provisions of this section.

(b) There is created in the State Treasury a special fund to be known as the Indigent Inmates' Post Conviction DNA Testing Fund. The purpose of the fund shall be to provide funding for the DNA testing under Senate Bill No. 2901, 2005 Regular Session. The fund shall be a continuing fund, not subject to fiscal-year limitations, shall be administered by the Administrative Office of the Courts, and shall consist of:

(i) Monies appropriated by the Legislature for the purposes of funding post conviction DNA testing for indigent inmates;

(iii) Monies received from the federal government;

(iv) Donations; and

(v) Monies received from such other sources as may be provided by law.

(7) The results of the testing shall be forwarded to the applicant, the trial court, and the district attorney. The trial court shall hold a hearing to determine whether it is reasonably probable that, had the results been available at the time of trial, the person would not have been convicted. If the trial court determines that it is reasonably probable that the person would not have been convicted, the court shall grant post conviction relief to the prisoner and vacate the prisoner’s conviction and sentence.

(8) Filing an application under this section shall not preclude or substitute for an application for post conviction relief based on any other provision of the Uniform Post Conviction Relief Act.

(9) Applications for DNA testing under this section may be made on or before December 31, 2010. After December 31, 2010, applications shall be subject to the three-year statute of limitations and its exceptions that apply to all Applications for Post Conviction Relief as provided in Section 99-39-5.

SECTION 2. This act shall take effect and be in force from and after July 1, 2005.