CHAPTER 7. POSTCONVICTION DNA TESTING AND ANALYSIS
IC 35-38-7
Chapter 7. Postconviction DNA Testing and Analysis
IC 35-38-7-1
Applicability of chapter
Sec. 1. This chapter applies only to an offense that is any of thefollowing:
(1) Murder.
(2) A Class A felony.
(3) A Class B felony.
(4) A Class C felony.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-2
"DNA" defined
Sec. 2. As used in this chapter, "DNA" refers to deoxyribonucleicacid.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-3
"Offense" defined
Sec. 3. As used in this chapter, "offense" means a felony to whicha petition under this chapter relates.
As added by P.L.49-2001, SEC.2. Amended by P.L.1-2002, SEC.147.
IC 35-38-7-4
"Victim" defined
Sec. 4. As used in this chapter, "victim" means an individual whowould be entitled under IC 35-40-5-8 to receive information about arelease of the petitioner.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-5
Petition to require testing
Sec. 5. A person who was convicted of and sentenced for anoffense may file a written petition with the court that sentenced thepetitioner for the offense to require the forensic DNA testing andanalysis of any evidence that:
(1) is:
(A) in the possession or control of a court or the state; or
(B) otherwise contained in the Indiana DNA data baseestablished under IC 10-13-6;
(2) is related to the investigation or prosecution that resulted inthe person's conviction; and
(3) may contain biological evidence.
As added by P.L.49-2001, SEC.2. Amended by P.L.2-2003, SEC.93.
IC 35-38-7-6
Notice of petition to prosecuting attorney
Sec. 6. A petitioner must give notice of the petition to the
prosecuting attorney for the county where the offense was allegedlycommitted.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-7
Opportunity to respond to petition
Sec. 7. The court shall give the prosecuting attorney anopportunity to respond to the petition. The court may, in itsdiscretion, order a hearing on the petition.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-8
Prima facie proof required
Sec. 8. After complying with section 7 of this chapter, the courtshall determine whether the petitioner has presented prima facieproof of the following:
(1) That the evidence sought to be tested is material toidentifying the petitioner as:
(A) the perpetrator of; or
(B) an accomplice to;
the offense that resulted in the petitioner's conviction.
(2) That a sample of the evidence that the petitioner seeks tosubject to DNA testing and analysis is in the possession orcontrol of either:
(A) the state or a court; or
(B) another person, and, if this clause applies, that asufficient chain of custody for the evidence exists to suggestthat the evidence has not been substituted, tampered with,replaced, contaminated, or degraded in any material aspect.
(3) The evidence sought to be tested:
(A) was not previously tested; or
(B) was tested, but the requested DNA testing and analysiswill:
(i) provide results that are reasonably more discriminatingand probative of the identity of the perpetrator oraccomplice; or
(ii) have a reasonable probability of contradicting priortest results.
(4) A reasonable probability exists that the petitioner would nothave:
(A) been:
(i) prosecuted for; or
(ii) convicted of;
the offense; or
(B) received as severe a sentence for the offense;
if exculpatory results had been obtained through the requestedDNA testing and analysis.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-9 Order for testing
Sec. 9. If the court makes the findings described in section 8(1),8(2), 8(3), and 8(4) of this chapter, the court shall order DNA testingand analysis of the evidence.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-10
Method and payment for testing
Sec. 10. If the court orders DNA testing and analysis undersection 9 of this chapter, the court shall order the method andresponsibility for the payment of any costs associated with the DNAtesting and analysis.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-11
Appointment of defense counsel
Sec. 11. The court may appoint defense counsel for the personwho was convicted of the offense at any time during any proceedingsunder this chapter if the person is indigent.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-12
Selection of laboratory
Sec. 12. If the court orders DNA testing and analysis under thischapter, the court shall select a laboratory that meets the qualityassurance and proficiency testing standards applicable to laboratoriesconducting forensic DNA analysis under IC 10-13-6.
As added by P.L.49-2001, SEC.2. Amended by P.L.2-2003, SEC.94.
IC 35-38-7-13
Access to laboratory reports
Sec. 13. (a) If a prosecuting attorney or defense counsel haspreviously subjected relevant evidence to DNA testing and analysis,the court may order the prosecuting attorney or defense counsel toprovide all the parties and the court with access to the laboratoryreports that were prepared in connection with the testing andanalysis, including underlying data and laboratory notes.
(b) If the court orders DNA testing and analysis under thischapter, the court:
(1) shall order the production of any laboratory reports that areprepared in connection with the testing and analysis; and
(2) may order the production of any underlying data andlaboratory notes.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-14
Preservation and inventory of testing results
Sec. 14. If a petition for DNA testing and analysis is filed underthis chapter:
(1) the court shall order the state to preserve during the
pendency of the proceeding all evidence in the state'spossession or control that could be subjected to DNA testingand analysis;
(2) the state shall:
(A) prepare an inventory of the evidence in the possession orcontrol of the state that could be subjected to DNA testingand analysis; and
(B) submit a copy of the inventory to defense counsel andthe court; and
(3) if evidence is intentionally destroyed after the court ordersits preservation, the court may impose appropriate sanctions.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-15
Discretionary orders by court; elimination samples
Sec. 15. (a) The court may make any other orders under thischapter that the court considers appropriate, including designatingany of the following:
(1) The type of DNA testing and analysis to be used.
(2) That the DNA testing and analysis satisfies the pertinentevidentiary rules concerning the admission of scientificevidence or testimony in the Indiana Rules of Evidence.
(3) The procedures to be followed during the DNA testing andanalysis.
(4) The preservation of some of the sample for replicating theDNA testing and analysis.
(5) Elimination samples from third parties.
(b) Elimination samples from a third party shall be required onlyif:
(1) the petitioner has been excluded as the perpetrator oraccomplice by DNA testing and analysis; or
(2) extraordinary circumstances are shown to require the DNAtest and analysis.
If the court orders elimination samples from a third party, the courtshall offer the third party the choice to provide a sample that can beobtained through the least intrusive method possible.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-16
Notice to victims and third parties
Sec. 16. (a) The prosecuting attorney may provide notificationunder the procedures of IC 35-40-12 when:
(1) the petitioner first files a petition for DNA testing andanalysis under this chapter; and
(2) the prosecuting attorney knows the name and address of thevictim.
If the court grants a petition for DNA testing and analysis, theprosecuting attorney shall provide notification if the name andaddress of the victim are known. A victim shall be notified of theresults of the DNA testing and analysis. (b) The name and address of a victim are confidential for purposesof this chapter.
(c) Notification of third parties regarding a court order to provideelimination samples shall be through the prosecuting attorney.
(d) If a petitioner is exonerated by DNA testing and analysis, thevictim shall be notified before the petitioner's release.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-17
Notification of convicted person
Sec. 17. Regardless of whether a petition has been filed under thischapter, if:
(1) a prosecuting attorney decides to order forensic DNA testingor analysis that was not previously performed on biologicalevidence that is related to the investigation or prosecution thatresulted in a person's conviction; and
(2) the testing will consume the remaining biological evidence;
the prosecuting attorney must notify the person of the proposed DNAtesting and analysis.
As added by P.L.49-2001, SEC.2.
IC 35-38-7-18
Unfavorable results of postconviction testing
Sec. 18. If the results of the postconviction DNA testing andanalysis are not favorable to the person who was convicted of theoffense, the court:
(1) shall dismiss the person's petition; and
(2) may make any further orders that the court determines to beappropriate, including any of the following:
(A) An order providing for notification of the parole boardor a probation department.
(B) An order requesting that the petitioner's sample be addedto the Indiana data base established under IC 10-13-6.
As added by P.L.49-2001, SEC.2. Amended by P.L.2-2003, SEC.95.
IC 35-38-7-19
Favorable results of postconviction testing
Sec. 19. Notwithstanding any law that would bar a trial asuntimely, if the results of postconviction DNA testing and analysisare favorable to the person who was convicted of the offense, thecourt shall order any of the following:
(1) Upon motion of the prosecuting attorney and good causeshown, order retesting of the identified biological material andstay the petitioner's motion for a new trial pending the results ofthe DNA retesting.
(2) Upon joint petition of the prosecuting attorney and thepetitioner, order the release of the person.
(3) Order a new trial or any other relief as may be appropriateunder Indiana law or court rule.
As added by P.L.49-2001, SEC.2.