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This year, the Utah Legislature quietly passed SB 172, "Postconviction DNA Testing," sponsored by Senator Lyle Hillyard. It was a major piece of legislation, and created a
mechanism for people wrongfully convicted of felonies to seek exoneration through DNA technology. In this article I will discuss the background of how the bill came into existence and
explain the key features of the new law.
In early 2000, Professor Lionel Frankel of the University of Utah College of Law set up a meeting with the Attorney General's Office to discuss the formation of a new project called the
"Rocky Mountain Innocence Project," which had recently been organized for the purpose of reviewing cases of prison inmates who assert their innocence. The project's goal was to
seek ways to exonerate the innocent through DNA analysis of evidence collected at the time of the crime that was still available for testing.
When we met with Professor Frankel and other founding members of the Rocky Mountain Innocence Project, we told them we would be glad to support what they were trying to accomplish, since
we had a mutual interest in insuring that anyone who had been wrongly convicted be exonerated. After that meeting, we took the issue to the Statewide Association of Public Attorneys,
recommending that the DNA actual innocence issue be studied and that legislation be proposed to assist in the effort.1
Over the summer, we studied other states' laws and legislative proposals. What we wanted to achieve was a balanced approach that would give the truly innocent every opportunity to be
exonerated, while not creating a mechanism which would be abused by the guilty. We noticed that some states limit post-conviction DNA testing to certain categories of felons, such as
death row inmates, or inmates in general. We decided that a broader approach was better, allowing all convicted felons to seek relief. While casting a wide net as to who could petition
for DNA testing, we also incorporated into the bill certain disincentives for the guilty who might seek to abuse the process.
After several re-writes, we had a bill which we felt struck the right balance, and we forwarded a copy to Professor Frankel to get input from the Innocence Project. After receiving back a
supportive letter from Professor Frankel, we contacted Senator Hillyard, who agreed to sponsor the legislation. The bill passed the 2001 Legislative Session without opposition, and went
into effect in May of this year.
The new provisions are found in UCA 78-35a-301 through 304. Here's how the law works:
A person who has been convicted of a felony may at any time petition the trial court that entered the judgment of conviction against him for DNA testing if he asserts his actual innocence
under oath and alleges certain things in the petition. One of the things the person must allege is a theory of defense, not inconsistent with theories previously asserted at trial, which
the DNA testing would support. Once the petition is filed, prosecutors, law enforcement officers and crime lab personnel have a duty to cooperate in preserving evidence and in determining
the sufficiency of the chain of custody of the evidence. If the court finds the petition sufficient, it orders the DNA testing. If the person is in prison and unable to pay, the state
pays for the costs of testing.
If the DNA test result comes back favorable to the person, the State may stipulate that the conviction be vacated, or may request a hearing and attempt to demonstrate that, despite the
apparently exonerating evidence, the person is actually guilty. Since the focus of the new law is on exonerating the truly innocent, the statute provides that the State may present
evidence and argument against judicial exoneration if it does not believe that the person is innocent of the convicted crimes and of any lesser included offenses.
This issue of judicial exoneration is one the committee debated at some length. In many other states, a favorable DNA result might result in vacating a defendant's conviction, but not bar
retrial if the prosecutor elects to go forward with the case. We felt that in cases where the defendant was able to clearly demonstrate his actual innocence through DNA evidence, vacating
the conviction was not enough. We wanted a more affirmative finding of actual innocence, one that would bar re-trial and result in automatic expungement of the person's conviction.
Therefore, the statute provides that the judge may vacate the conviction with prejudice and expunge the conviction in cases in which the defendant can demonstrate actual innocence by
clear and convincing evidence.2
While wanting to give wide opportunity for exoneration to the actually innocent, we did not want the new procedures to be an invitation for abuse by those "who had nothing to
lose" by asserting their innocence and seeking the testing on the off-chance it would benefit them. As a result, we built in a number of disincentives for the guilty. They include
being assessed the costs of the testing if the result comes back unfavorable to the defendant, and having the Board of Pardons and Parole informed that the DNA testing confirms the
defendant's guilt despite his sworn assertion of innocence.
Also, by filing the petition, the defendant acknowledges that his DNA will be entered into law enforcement DNA databases, and that the filing of the petition constitutes the person's
waiver of any statute of limitations in all jurisdictions as to any felony offense the person has committed which is identified through DNA database comparison.3 This approach
might arguably be harsh as applied to the rare instance in which the defendant is innocent of one offense but has committed others which he has not been tied to until the DNA testing that
he requests be performed. However, we wanted to avoid the scenario in which an inmate walks out of prison a free man, having been exonerated by DNA testing, when that same testing
establishes his guilt as to other offenses for which he can no longer be prosecuted. Since the goal is the exoneration of the truly innocent and there is no time limitation for applying
for that exoneration, this seems like a balanced approach.
No system is perfect, and, although our system of justice has a number of safeguards designed to prevent the conviction of an innocent person, we can't be assured there are not any
innocent people serving time in prison for crimes they never committed. To those people and others who have been convicted of felonies they never committed, there is now the possibility
of exoneration through DNA testing. We hope that this new statute will be an effective mechanism to help in those rare but compelling cases when innocent people live through the nightmare
of being accused and then convicted of crimes they did not commit.
1.
We use the term "actual innocence" to differentiate this concept from a finding of "not guilty" at trial, which only means that the fact finder had a reasonable doubt as to guilt. Actual innocence refers to cases in which affirmative evidence surfaces following a conviction which establishes that the person did not commit the crime.
2.
In cases where the DNA evidence is favorable to the defendant and undermines the outcome of the trial but doesn't rise to the level of clear or convincing evidence of innocence, the defendant may still petition the court for a new trial under the provisions of Utah Code ¤78-35a-104(1)(e) based on a theory of newly discovered evidence.
3.
Note that waiving statutes of limitations is permissible in jurisdictions such as Utah, which analyze the statutes not as jurisdictional but rather as defenses to prosecution. James v. Galetka, 965 P.2d 567 (Utah Ct. App. 1998). In states which follow the jurisdictional analysis, such a waiver of statutes of limitations would not be effective.
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