Title 78B - Judicial Code - Chapter 9 - Postconviction Remedies Act - Part 3 - Postconviction Testing of DNA - Section 301 - Postconviction testing of DNA -- Petition -- Sufficient allegations -- Notification of victim.

Published: 2018-05-08

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Utah Code

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Effective 5/8/2018 Superseded 5/5/2021 78B-9-301 Postconviction testing of DNA -- Petition -- Sufficient allegations -- Notification of victim. (1) As used in this part:

(a) "DNA" means deoxyribonucleic acid. (b) "Factually innocent" means the same as that term is defined in Section 78B-9-402.

(2) A person convicted of a felony offense may at any time file a petition for postconviction DNA testing in the trial court that entered the judgment of conviction if the person asserts factual innocence under oath and the petition alleges:

(a) evidence has been obtained regarding the person's case that is still in existence and is in a condition that allows DNA testing to be conducted;

(b) the chain of custody is sufficient to establish that the evidence has not been altered in any material aspect;

(c) the person identifies the specific evidence to be tested and states a theory of defense, not inconsistent with theories previously asserted at trial, that the requested DNA testing would support;

(d) the evidence was not previously subjected to DNA testing, or if the evidence was tested previously, the evidence was not subjected to the testing that is now requested, and the new testing may resolve an issue not resolved by the prior testing;

(e) the proposed DNA testing is generally accepted as valid in the scientific field or is otherwise admissible under Utah law;

(f) the evidence that is the subject of the request for testing: (i) has the potential to produce new, noncumulative evidence; and (ii) there is a reasonable probability that the defendant would not have been convicted or would

have received a lesser sentence if the evidence had been presented at the original trial; and (g) the person is aware of the consequences of filing the petition, including:

(i) those specified in Sections 78B-9-302 and 78B-9-304; and (ii) that the person is waiving any statute of limitations in all jurisdictions as to any felony

offense the person has committed which is identified through DNA database comparison. (3) The petition under Subsection (2) shall comply with Rule 65C, Utah Rules of Civil Procedure,

including providing the underlying criminal case number. (4) After a petition is filed under this section, prosecutors, law enforcement officers, and crime

laboratory personnel have a duty to cooperate in preserving evidence and in determining the sufficiency of the chain of custody of the evidence which may be subject to DNA testing.

(5) (a) A person who files a petition under this section shall serve notice upon the office of the

prosecutor who obtained the conviction, and upon the Utah attorney general. The attorney general shall, within 30 days after receipt of service of a copy of the petition, or within any additional period of time the court allows, answer or otherwise respond to all proceedings initiated under this part.

(b) After the attorney general responds under Subsection (5)(a), the petitioner has the right to reply to the response of the attorney general.

(c) After the attorney general and the petitioner have filed a response and reply in compliance with Subsection (5)(b), the court shall order DNA testing if it finds by a preponderance of the evidence that all criteria of Subsection (2) have been met.


Utah Code

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(a) If the court grants the petition for testing, the DNA test shall be performed by the Utah State Crime Laboratory within the Criminal Investigations and Technical Services Division created in Section 53-10-103, unless the person establishes that the state crime laboratory has a conflict of interest or does not have the capability to perform the necessary testing.

(b) If the court orders that the testing be conducted by any laboratory other than the state crime laboratory, the court shall require that the testing be performed:

(i) under reasonable conditions designed to protect the state's interests in the integrity of the evidence; and

(ii) according to accepted scientific standards and procedures. (7)

(a) DNA testing under this section shall be paid for from funds appropriated to the Department of Public Safety under Subsection 53-10-407(4)(d)(ii) from the DNA Specimen Restricted Account created in Section 53-10-407 if:

(i) the court ordered the DNA testing under this section; (ii) the Utah State Crime Laboratory within the Criminal Investigations and Technical Services

Division has a conflict of interest or does not have the capability to perform the necessary testing; and

(iii) the petitioner who has filed for postconviction DNA testing under Section 78B-9-201 is serving a sentence of imprisonment and is indigent.

(b) Under this Subsection (7), costs of DNA testing include those necessary to transport the evidence, prepare samples for analysis, analyze the evidence, and prepare reports of findings.

(8) If the person is serving a sentence of imprisonment and is indigent, the state shall pay for the costs of the testing under this part, but if the result is not favorable to the person the court may order the person to reimburse the state for the costs of the testing, pursuant to Subsections 78B-9-302(4) and 78B-9-304(1)(b).

(9) Any victim of the crime regarding which the person petitions for DNA testing, who has elected to receive notice under Section 77-38-3 shall be notified by the state's attorney of any hearing regarding the petition and testing, even though the hearing is a civil proceeding.