GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
H	2
HOUSE BILL 884*
Committee Substitute Favorable 4/19/01

Short Title:	Innocence Protection Act.	()	
Sponsors:	     	
Referred to:	     	
March 29, 2001

A BILL TO BE ENTITLED
AN ACT TO ASSIST AN INNOCENT PERSON CHARGED WITH OR WRONGLY CONVICTED OF A CRIMINAL OFFENSE IN ESTABLISHING THE PERSON'S INNOCENCE AND TO AMEND THE LAW PROVIDING COMPENSATION TO THE PERSON FOR A WRONGFUL CONVICTION. 

The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 15A‑266.5 is amended by adding a new subsection to read:
"(c)	For criminal defense purposes, the defendant, including the representative of the defendant, in a criminal action or proceeding shall have access to information in the State DNA Database or Databank relating to the number of requests previously made for a comparison search involving the defendant's DNA sample and the name and identity of the requesting party."
SECTION 2.  G.S. 15A‑266.10(a) reads as rewritten:
"	
(a)	Upon receipt of notification of a reversal of conviction and dismissal of the case or of the granting of a pardon of an individual whose DNA record or profile has been included in the State DNA Database and whose DNA sample is stored in the State DNA Databank, the DNA sample shall be expunged. The DNA record, and any samples, analyses, or other documents relating to the record, whether in the possession of the State DNA Database or Databank, any law enforcement or police agency, or any forensic DNA laboratory, including any duplicates or copies, shall be returned to the individual or to the attorney who represented the individual at the time the reversal or pardon was granted. The order reversing and dismissing the conviction or the instrument granting the pardon shall be accompanied by an order of expungement, and a certified copy shall be provided to the SBI. The SBI shall adopt procedures to comply with this section."
SECTION 3.  Article 13 of Chapter 15A of the General Statutes is amended by adding the following new sections to read:
"§ 15A-267.  Access to DNA samples from crime scene.
(a)	A criminal defendant or the defendant's representative shall have access before trial to any DNA samples and analyses performed in connection with the case in which the defendant is charged.
(b)	The court, in response to a motion for such comparison by a defendant, shall order that DNA information from a crime scene sample obtained in the course of the investigation of an alleged crime be checked against the DNA records and profiles maintained by or available through the State DNA Database and Databank and the national DNA index system, and that the results of the check be disclosed to the defendant and to the prosecutor whose jurisdiction includes the location of the alleged commission of the crime, upon a showing by the defendant that the analysis may be material to the defendant's defense and that the request is reasonable.
"§ 15A-268.  Preservation of samples of biological materials.
(a)	Notwithstanding any other provision of law and subject to subsection (b) of this section, a governmental entity that, in the course of a criminal investigation, collects evidence containing DNA shall preserve a sample of any biological material secured in connection with the criminal case for the period of time the person remains incarcerated in connection with that case. The governmental entity may determine how the evidence is retained pursuant to this section, provided that the evidence is retained in a condition suitable for DNA testing.
(b)	The governmental entity may dispose of biological material before the expiration of the period of time described in subsection (a) of this section if all the conditions set forth below are met:
(1)	The governmental entity notifies all of the following persons of the provision of this section and of the intention of the governmental entity to dispose of the material:  any person, who as a result of a felony conviction in the case is currently serving a term of imprisonment and who remains incarcerated in connection with the case, any counsel of record, the public defender in the county of conviction, the district attorney in the county of conviction, and the Attorney General.
(2)	The notifying entity does not receive, within 90 days of sending the notification, a request under penalty of perjury that the material not be destroyed or disposed of because the declarant will file within 180 days a motion for DNA testing pursuant to G.S. 15A-269 that is followed within 180 days by a motion for DNA testing pursuant to G.S. 15A-269, unless a request for extension is requested by the convicted person and agreed to by the governmental entity in possession of the evidence.
"§ 15A-269.  Request for post-conviction DNA testing.
(a)	A defendant may make a motion before the trial court that entered the judgment of conviction in the defendant's case for performance of forensic DNA testing of any biological material that:
(1)	Is related to the investigation or prosecution that resulted in the judgment; and
(2)	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 accurate and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.
(b)	The court shall grant the motion for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on the evidence using current technology, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.
(c)	In cases in which the defendant has been convicted of first degree murder and is in custody awaiting imposition of the death penalty, the State shall perform forensic DNA testing of any biological material that:
(1)	Is related to the investigation or prosecution that resulted in the judgment; and
(2)	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 perpetrator or accomplice or have a reasonable probability of contradicting prior test results.
At the request of either the prosecution or the defense, the testing shall be performed before an execution date is set, and the results of the testing shall be provided to all counsel and to the Governor before the execution is carried out.
(d)	The court shall appoint counsel for the person who brings a motion under this section if that person is indigent.
(e)	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.
(f)	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 court may order that the SBI be required to give priority to the DNA testing ordered pursuant to this section.
"§ 15A-270.  Post-test procedures.
(a)	Notwithstanding any other provision of law, upon receipt of the results of the DNA testing conducted under G.S. 15A-269, the court shall conduct a hearing to evaluate the results and to determine if the results are unfavorable or favorable to the defendant.
(b)	If the results of DNA testing conducted under this section are unfavorable to the defendant, the court:
(1)	Shall dismiss the motion; and
(2)	In the case of a defendant who is not indigent, may assess the defendant for the cost of the testing.
(c)	If the results of DNA testing conducted under this section are favorable to the defendant, the court shall enter any order that serves the interests of justice, including an order:
(1)	Vacating and setting aside the judgment;
(2)	Discharging the defendant, if the defendant is in custody;
(3)	Presentencing the defendant; or
(4)	Granting a new trial."
SECTION 4.  This act becomes effective December 1, 2001, and applies to all offenses committed on or after that date and all actions and proceedings pending in the courts of this State on or after that date.