Preservation and Retention of DNA in Felony Cases This Act establishes a procedure for the storage, preservation and retention of human biological evidence in felony cases and a procedure for convicted felons to petition the court that entered the conviction to apply for a new scientific investigation of human biological evidence. The following elements must be met for the court to order the testing: (1) The evidence was not known or available at the time the conviction became final or not previously tested because the testing procedure was not available at the time; (2) The chain of custody establishes that the evidence has not been altered, tampered with, or substituted; (3) The testing is materially relevant, non-cumulative, and necessary and may prove the convicted person’s actual innocence; (4) The testing requested involves a scientific method; and (5) The convicted person did not unreasonably delay the filing of the petition after the evidence or the test for the evidence became available. The petition also must state the reasons the evidence was not known or tested by the time the conviction became final and the reasons that the newly discovered or untested evidence may prove the actual innocence of the person convicted. The Act also establishes a procedure for the issuance of a writ of actual innocence for persons convicted of a felony upon a plea of not guilty or for any person sentenced to death or convicted of a Class 1 or 2 felony or a felony for which the maximum penalty is life imprisonment. The petition is to be filed with the state Supreme Court and must allege: (1) That the petitioner’s conviction qualifies; (2) That the petitioner is actually innocent of the crime for which they were convicted; (3) An exact description of the human biological evidence and the scientific testing supporting the allegation of innocence; (4) That the evidence was not previously known or available to the petitioner or his trial attorney of record at the time the conviction became final, or if known, was not subject to the scientific testing for the reasons set forth in the petition; (5) The date the test results became known to the petitioner or any attorney of record; (6) That the petitioner or their attorney of record has filed the petition within 60 days of obtaining the test results; (7) That the petitioner is currently incarcerated; (8) The reasons the evidence will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt; and (9) For any conviction which became final in the circuit court after June 30, 1996, that the evidence was not available for testing under state law. If the state Supreme Court determines that a resolution of the case requires further development of the facts, it may order the court to conduct a hearing to certify findings of fact on certain issues. After considering the petition and the state’s response, the previous records of the case, the record of any hearing on newly tested evidence and any findings certified from the lower court, the state Supreme Court may dismiss the petition or vacate or modify the conviction. Submitted as: Virginia Act 874 of 2001 Status: enacted into law in 2001.
The Council of State Governments
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