2015 Kentucky Revised Statutes CHAPTER 422 - EVIDENCE AND LOST RECORDS 422.285 Person convicted of certain offenses may request DNA testing -- Right to counsel -- Deposit -- Court orders -- Cost -- Access to reports -- Preservation of evidence -- Dismissal -- Hearing when results favorable to petitioner.
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422.285 Person convicted of certain offenses may request DNA testing -- Right to
counsel -- Deposit -- Court orders -- Cost -- Access to reports -- Preservation of
evidence -- Dismissal -- Hearing when results favorable to petitioner.
(1)
(2)
(3)
(4)
(5)
(a)
Except as provided in paragraph (b) of this subsection, a person who was
convicted of a capital offense, a Class A felony, a Class B felony, or any
offense designated a violent offense under KRS 439.3401 and who meets the
requirements of this section may at any time request the forensic
deoxyribonucleic acid (DNA) testing and analysis of any evidence that is in
the possession or control of the court or Commonwealth, that is related to the
investigation or prosecution that resulted in the judgment of conviction and
that may contain biological evidence.
(b) This subsection shall not apply to offenses under KRS Chapter 218A, unless
the offense was accompanied by another offense outside of that chapter for
which testing is authorized by paragraph (a) of this subsection.
Upon receipt of a request under this section accompanied by a supporting affidavit
containing sufficient factual averments to support the request from a person who
meets the requirements of subsection (5)(f) of this section at the time the request is
made for an offense to which the DNA relates, the court shall:
(a) If the petitioner is not represented by counsel, appoint the Department for
Public Advocacy to represent the petitioner for purposes of the request,
pursuant to KRS 31.110(2)(c); or
(b) If the petitioner is represented by counsel or waives appointment of counsel in
writing or if the Department for Public Advocacy has previously withdrawn
from representation of the petitioner for purposes of the request, require the
petitioner to deposit an amount certain with the court sufficient to cover the
reasonable costs of the testing being requested.
Counsel representing the petitioner shall be provided a reasonable opportunity to
investigate the petitioner's request and shall be permitted to supplement the request.
Pursuant to KRS 31.110(2)(c), the petitioner shall have no further right to counsel
provided by the Department for Public Advocacy on the matter if counsel
determines that it is not a proceeding that a reasonable person with adequate means
would be willing to bring at his or her own expense. If the Department for Public
Advocacy moves to withdraw as counsel for petitioner and the court grants the
motion, the court shall proceed as directed under subsection (2)(b) of this section.
Upon receipt of the deposit required under subsection (2)(b) of this section or a
motion from counsel provided by the Department for Public Advocacy to proceed,
the court shall provide notice to the prosecutor and an opportunity to respond to the
petitioner's request.
After due consideration of the request and any supplements and responses thereto,
the court shall order DNA testing and analysis if the court finds that all of the
following apply:
(a) A reasonable probability exists that the petitioner would not have been
prosecuted or convicted if exculpatory results had been obtained through
(6)
(7)
(8)
DNA testing and analysis;
(b) The evidence is still in existence and is in a condition that allows DNA testing
and analysis to be conducted;
(c) The evidence was not previously subjected to DNA testing and analysis or
was not subjected to the testing and analysis that is now requested and may
resolve an issue not previously resolved by the previous testing and analysis;
(d) Except for a petitioner sentenced to death, the petitioner was convicted of the
offense after a trial or after entering an Alford plea;
(e) Except for a petitioner sentenced to death, the testing is not sought for touch
DNA, meaning casual or limited contact DNA; and
(f) The petitioner is still incarcerated or on probation, parole, or other form of
correctional supervision, monitoring, or registration for the offense to which
the DNA relates.
After due consideration of the request and any supplements and responses thereto,
the court may order DNA testing and analysis if the court finds that all of the
following apply:
(a) A reasonable probability exists that either:
1.
The petitioner's verdict or sentence would have been more favorable if
the results of DNA testing and analysis had been available at the trial
leading to the judgment of conviction; or
2.
DNA testing and analysis will produce exculpatory evidence;
(b) The evidence is still in existence and is in a condition that allows DNA testing
and analysis to be conducted;
(c) The evidence was not previously subject to DNA testing and analysis or was
not subjected to the testing and analysis that is now requested and that may
resolve an issue not previously resolved by the previous testing and analysis;
(d) Except for a petitioner sentenced to death, the petitioner was convicted of the
offense after a trial or after entering an Alford plea;
(e) Except for a petitioner sentenced to death, the testing is not sought for touch
DNA, meaning casual or limited contact DNA; and
(f) The petitioner is still incarcerated or on probation, parole, or other form of
correctional supervision, monitoring, or registration for the offense to which
the DNA relates.
The provisions of KRS 17.176 to the contrary notwithstanding, the petitioner shall
pay the costs of all testing and analysis ordered under this section. If the court
determines that the petitioner is a needy person using the standards set out in KRS
31.120 and the Department for Public Advocacy so moves, the court shall treat the
costs of testing and analysis as a direct expense of the defense for the purposes of
authorizing payment under KRS 31.185.
If the prosecutor or defense counsel has previously subjected evidence to DNA
testing and analysis, the court shall order the prosecutor or defense counsel to
provide all the parties and the court with access to the laboratory reports that were
prepared in connection with the testing and analysis, including underlying data and
laboratory notes. If the court orders DNA testing and analysis pursuant to this
section, the court shall order the production of any laboratory reports that are
prepared in connection with the testing and analysis and may order the production
of any underlying data and laboratory notes.
(9) If a petition is filed pursuant to this section, the court shall order the state to
preserve during the pendency of the proceeding all evidence in the state's possession
or control that could be subjected to DNA testing and analysis. The state shall
prepare an inventory of the evidence and shall submit a copy of the inventory to the
defense and the court. If the evidence is intentionally destroyed after the court
orders its preservation, the court may impose appropriate sanctions, including
criminal contempt.
(10) The court may make any other orders that the court deems appropriate, including
designating any of the following:
(a) The preservation of some of the sample for replicating the testing and
analysis; and
(b) Elimination samples from third parties.
(11) If the results of the DNA testing and analysis are not favorable to the petitioner, the
court shall dismiss the petition. The court may make further orders as it deems
appropriate, including any of the following:
(a) Notifying the Department of Corrections and the Parole Board;
(b) Requesting that the petitioner's sample be added to the Department of
Kentucky State Police database; and
(c) Providing notification to the victim or family of the victim.
(12) Notwithstanding any other provision of law that would bar a hearing as untimely, if
the results of the DNA testing and analysis are favorable to the petitioner, the court
shall order a hearing and make any further orders that are required pursuant to this
section or the Kentucky Rules of Criminal Procedure.
Effective: June 25, 2013
History: Amended 2013 Ky. Acts ch. 77, sec. 1, effective June 25, 2013. -- Amended
2007 Ky. Acts ch. 85, sec. 307, effective June 26, 2007. -- Created 2002 Ky. Acts ch.
154, sec. 1, effective July 15, 2002.
Legislative Research Commission Note (7/15/2002). Under the authority of KRS
7.136, the Reviser of Statutes has corrected a manifest clerical or typographical error
in the second sentence of subsection (5) of this section as enacted in 2002 Ky. Acts
ch. 154, sec. 1, by inserting "and" after the second appearance of "testing and
analysis."
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