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 the
following:
(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 deoxyribonucleic
acid.
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 which
a 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 who
would be entitled under IC 35-40-5-8 to receive information about a
release 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 an
offense may file a written petition with the court that sentenced the
petitioner for the offense to require the forensic DNA testing and
analysis 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 base
established under IC 10-13-6;
(2) is related to the investigation or prosecution that resulted in
the 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 allegedly
committed.
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 an
opportunity to respond to the petition. The court may, in its
discretion, 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 court
shall determine whether the petitioner has presented prima facie
proof of the following:
(1) That the evidence sought to be tested is material to
identifying 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 to
subject to DNA testing and analysis is in the possession or
control of either:
(A) the state or a court; or
(B) another person, and, if this clause applies, that a
sufficient chain of custody for the evidence exists to suggest
that 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 analysis
will:
(i) provide results that are reasonably more discriminating
and probative of the identity of the perpetrator or
accomplice; or
(ii) have a reasonable probability of contradicting prior
test results.
(4) A reasonable probability exists that the petitioner would not
have:
(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 requested
DNA 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 testing
and 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 under
section 9 of this chapter, the court shall order the method and
responsibility for the payment of any costs associated with the DNA
testing 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 person
who was convicted of the offense at any time during any proceedings
under 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 this
chapter, the court shall select a laboratory that meets the quality
assurance and proficiency testing standards applicable to laboratories
conducting 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 has
previously subjected relevant evidence to DNA testing and analysis,
the court may order the prosecuting attorney 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.
(b) If the court orders DNA testing and analysis under this
chapter, the court:
(1) shall order the production of any laboratory reports that are
prepared in connection with the testing and analysis; and
(2) may order the production of any underlying data and
laboratory 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 under
this chapter:
(1) 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;
(2) the state shall:
(A) prepare an inventory of the evidence in the possession or
control of the state that could be subjected to DNA testing
and analysis; and
(B) submit a copy of the inventory to defense counsel and
the court; and
(3) if evidence is intentionally destroyed after the court orders
its 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 this
chapter that the court considers appropriate, including designating
any of the following:
(1) The type of DNA testing and analysis to be used.
(2) That the DNA testing and analysis satisfies the pertinent
evidentiary rules concerning the admission of scientific
evidence or testimony in the Indiana Rules of Evidence.
(3) The procedures to be followed during the DNA testing and
analysis.
(4) The preservation of some of the sample for replicating the
DNA testing and analysis.
(5) Elimination samples from third parties.
(b) Elimination samples from a third party shall be required only
if:
(1) the petitioner has been excluded as the perpetrator or
accomplice by DNA testing and analysis; or
(2) extraordinary circumstances are shown to require the DNA
test and analysis.
If the court orders elimination samples from a third party, the court
shall offer the third party the choice to provide a sample that can be
obtained 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 notification
under the procedures of IC 35-40-12 when:
(1) the petitioner first files a petition for DNA testing and
analysis under this chapter; and
(2) the prosecuting attorney knows the name and address of the
victim.
If the court grants a petition for DNA testing and analysis, the
prosecuting attorney shall provide notification if the name and
address of the victim are known. A victim shall be notified of the
results of the DNA testing and analysis.
(b) The name and address of a victim are confidential for purposes
of this chapter.
(c) Notification of third parties regarding a court order to provide
elimination samples shall be through the prosecuting attorney.
(d) If a petitioner is exonerated by DNA testing and analysis, the
victim 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 this
chapter, if:
(1) a prosecuting attorney decides to order forensic DNA testing
or analysis that was not previously performed on biological
evidence that is related to the investigation or prosecution that
resulted 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 DNA
testing 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 and
analysis are not favorable to the person who was convicted of the
offense, the court:
(1) shall dismiss the person's petition; and
(2) may make any further orders that the court determines to be
appropriate, including any of the following:
(A) An order providing for notification of the parole board
or a probation department.
(B) An order requesting that the petitioner's sample be added
to 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 as
untimely, if the results of postconviction DNA testing and analysis
are favorable to the person who was convicted of the offense, the
court shall order any of the following:
(1) Upon motion of the prosecuting attorney and good cause
shown, order retesting of the identified biological material and
stay the petitioner's motion for a new trial pending the results of
the DNA retesting.
(2) Upon joint petition of the prosecuting attorney and the
petitioner, order the release of the person.
(3) Order a new trial or any other relief as may be appropriate
under Indiana law or court rule.
As added by P.L.49-2001, SEC.2.