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Regular Session, 2014
SENATE BILL NO. 565
BY SENATOR DORSEY-COLOMB
CRIMINAL PROCEDURE. Provides relative to the testing and preservation of DNA
evidence in capital cases. (8/1/14)
AN ACT1
To enact Chapter 7 of Title XIII of the Code of Criminal Procedure, to be comprised of2
Article 501, relative to information and indictment; to require testing of DNA3
evidence prior to trial of capital cases; to provide definitions; and to provide for4
related matters.5
Be it enacted by the Legislature of Louisiana:6
Section 1. Chapter 7 of Title XIII of the Code of Criminal Procedure, to be7
comprised of Article 501, is hereby enacted to read as follows:8
CHAPTER 7. DNA TESTING IN CAPITAL CASES9
Art. 501. Capital cases; DNA testing required; remedy10
A. Before a defendant is tried for a capital offense in which the11
prosecution is seeking the death penalty, subject to Paragraph B of this Article,12
the prosecution shall require either the Department of Public Safety and13
Corrections, office of state police, through one of its laboratories, or a14
laboratory that is accredited by the American Society of Crime Laboratory15
Directors/Laboratory Accreditation Board (ASCLD/LAB) in forensic DNA16
analysis, to perform DNA testing, in accordance with the laboratory's17 SB NO. 565
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capabilities at the time the testing is performed, on any biological evidence that1
was collected as part of an investigation of the offense and that is in the2
possession of the prosecution. The laboratory that performs the DNA testing3
shall pay for all DNA testing performed in accordance with this Paragraph.4
B. As soon as practicable after the defendant is charged with a capital5
offense, or on motion of the prosecution or the defendant, unless the prosecution6
has affirmatively waived the death penalty in writing, the court shall order the7
prosecution and the defendant to meet and confer about which biological8
materials collected as part of an investigation of the offense qualify as biological9
evidence that is required to be tested under Paragraph A of this Article.10
(1) If the prosecution and the defendant agree on which biological11
materials constitute biological evidence, the biological evidence shall be tested12
in accordance with Paragraph A of this Article.13
(2) If the prosecution and the defendant do not agree on which biological14
materials qualify as biological evidence, the prosecution or the defendant may15
request that the court hold a hearing to determine the issue. On receipt of a16
request for a hearing under this Subparagraph, the court shall set a date for the17
hearing and provide written notice of the hearing date to the prosecution and18
the defendant. At the hearing, there is a rebuttable presumption that the19
biological material that the defendant requests to be tested constitutes biological20
evidence that is required to be tested under Paragraph A of this Article.21
(3) This Paragraph shall not prohibit the prosecution from testing22
biological evidence in its possession.23
C. If an item of biological evidence is destroyed or lost as a result of DNA24
testing performed under Paragraph A of this Article, then the laboratory that25
tested the evidence shall provide to the defendant any work product generated26
during DNA analysis by the laboratory that is related to the testing of the27
evidence and the results of that testing.28
D.(1) The defendant's exclusive remedy for testing that was not29 SB NO. 565
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performed as required under Paragraphs A or B of this Article is to seek a writ1
of mandamus from the court of appeal at any time on or before the date an2
appeal is due to be filed in the defendant's case under Code of Criminal3
Procedure Article 930.8. An application for a writ of mandamus under this4
Paragraph does not toll or interrupt any time limitation applicable to an appeal5
under state law or to a habeas petition under federal law. The defendant is6
entitled to only one application for a writ of mandamus under this Paragraph.7
(2) At any time after an appeal is filed in the defendant's case, the8
defendant may file one additional motion for DNA testing under Code of9
Criminal Procedure Article 926.1.10
E.(1) A defendant may have another laboratory accredited by the11
ASCLD/LAB in forensic DNA analysis perform additional testing of any12
biological evidence required to be tested under Paragraph A of this Article.13
(2) On an ex parte showing of good cause to the court, a defendant may14
have a laboratory accredited by the ASCLD/LAB in forensic DNA analysis15
perform testing of any biological material that is not required to be tested under16
Paragraph A of this Article.17
(3) The defendant is responsible for the cost of any testing performed18
under this Paragraph.19
F.(1) For purposes of this Article, "biological evidence" means the20
contents of a sexual assault examination kit or any item that contains blood,21
semen, hair, saliva, skin tissue, fingerprints, or other identifiable human22
biological material that may reasonably be used to incriminate or exculpate any23
person in the criminal investigation, whether that material is catalogued24
separately on a slide or swab, in a test tube, or some other similar method, or25
is present on clothing, ligatures, bedding, other household materials, drinking26
cups, cigarettes, or any other item of evidence, including those that are alleged27
to have been touched or worn by the perpetrator of the offense.28
(2) Work product generated during DNA analysis shall not be considered29 SB NO. 565
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biological evidence with the exception of the extracted DNA when the original1
biological evidence is consumed during analysis, in which event the extracted2
DNA shall be retained.3
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Alden A. Clement Jr.
DIGEST
Dorsey-Colomb (SB 565)
Proposed law provides that before a defendant is tried for a capital offense in which the
prosecution is seeking the death penalty, the prosecution must have either the Dept. of Public
Safety and Corrections, office of state police, through one of its laboratories, or a laboratory
that is accredited by the American Society of Crime Laboratory Directors/Laboratory
Accreditation Board (ASCLD/LAB) in forensic DNA analysis, perform DNA testing, in
accordance with the laboratory's capabilities at the time the testing is performed, on any
biological evidence that was collected as part of an investigation of the offense and that is
in the possession of the prosecution. Proposed law further provides that the laboratory that
performs the DNA testing is to pay for all DNA testing performed in accordance with
proposed law.
Proposed law provides that, as soon as practicable after the defendant is charged with a
capital offense, or on motion of the prosecution or the defendant, unless the prosecution has
affirmatively waived the death penalty in writing, the court is to order the prosecution and
the defendant to meet and confer about which biological materials collected as part of an
investigation of the offense qualify as biological evidence that is required to be tested under
proposed law.
Proposed law provides that if the prosecution and the defendant agree on which biological
materials constitute biological evidence, the biological evidence is to be tested in accordance
with proposed law. Proposed law further provides that if the prosecution and the defendant
do not agree on which biological materials qualify as biological evidence, the prosecution
or the defendant may request that the court hold a hearing to determine the issue. Proposed
law further provides that on receipt of a request for a hearing, the court is to set a date for
the hearing and provide written notice of the hearing date to the prosecution and the
defendant. Proposed law further provides that at the hearing, there is a rebuttable
presumption that the biological material that the defendant requests to be tested constitutes
biological evidence that is required to be tested under proposed law. Proposed law does not
prevent the prosecution from testing biological evidence in its possession.
Proposed law provides that if an item of biological evidence is destroyed or lost as a result
of DNA testing, then the laboratory that tested the evidence must provide to the defendant
any work product generated during DNA analysis by the laboratory that is related to the
testing of the evidence and the results of that testing.
Proposed law provides that the defendant's exclusive remedy for testing that was not
performed as required under proposed law is to seek a writ of mandamus from the court of
appeal at any time on or before the date an appeal is due to be filed in the defendant's case
under present law. Proposed law further provides that an application for a writ of mandamus
under proposed law does not toll or interrupt any time limitation applicable to an appeal
under present law or to a habeas petition under federal law. Proposed law provides that the
defendant is entitled to only one application for a writ of mandamus under proposed law.
Proposed law provides that at any time after an appeal is filed in the defendant's case, the
defendant may file one additional motion for DNA testing under present law relative to DNA SB NO. 565
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testing as part of post-conviction relief.
Proposed law provides that a defendant, at his expense, may have another laboratory
accredited by the ASCLD/LAB in forensic DNA analysis perform additional testing of any
biological evidence required to be tested under proposed law. Proposed law further provides
that on an ex parte showing of good cause to the court, a defendant, at his expense, may have
a laboratory accredited by the ASCLD/LAB in forensic DNA analysis perform testing of any
biological material that is not required to be tested under proposed law.
Proposed law defines "biological evidence" as the contents of a sexual assault examination
kit or any item that contains blood, semen, hair, saliva, skin tissue, fingerprints, or other
identifiable human biological material that may reasonably be used to incriminate or
exculpate any person in the criminal investigation, whether that material is catalogued
separately on a slide or swab, in a test tube, or some other similar method, or is present on
clothing, ligatures, bedding, other household materials, drinking cups, cigarettes, or any
other item of evidence, including those that are alleged to have been touched or worn by the
perpetrator of the offense. Proposed law further provides that any work product generated
during DNA analysis is not considered "biological evidence", with the exception of the
extracted DNA when the original biological evidence is consumed during analysis, in which
event the extracted DNA must be retained.
Effective August 1, 2014.
(Adds C.Cr.P. Art. 501)