Printer FriendlyHB 1166 provide for DNA testing for certain inmates for the purposes o...
ENTITLED, An Act to
provide for DNA testing for certain inmates for the purposes of determining
whether they may have been wrongfully convicted.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Upon a written motion by any person who has been convicted of a felony offense, the
court that entered the judgment of conviction for the felony offense shall order DNA testing of
specific evidence if the court finds that all of the following apply:
(1) The petitioner asserts, under penalty of perjury, that the petitioner is actually innocent of
the felony offense for which the petitioner is under a sentence of imprisonment or death;
(2) The petitioner's conviction is final under chapter 23A-32;
(3) The petitioner has exhausted any claim for relief under chapter 21-27 or 28 U.S.C.
(4) The specific evidence to be tested was secured in relation to the investigation or
prosecution of the felony offense for which the petitioner was convicted;
(5) The specific evidence was either:
(a) Not previously subjected to DNA testing and the petitioner did not:
(i) Knowingly and voluntarily waive the right to request DNA testing of that
evidence in a court proceeding after the date of enactment of this Act; or
(ii) Knowingly fail to request DNA testing of that evidence in a prior petition
for relief under chapter 21-27 or 28 U.S.C.
(b) Previously subjected to DNA testing and the petitioner is requesting DNA testing
using a new method or technology that is substantially more probative than the
prior DNA testing;
(6) The petitioner shows good cause for the failure to request DNA testing of the specific
evidence at the time of trial;
(7) The specific evidence to be tested exists, is in the possession of the state, and has been
subject to a chain of custody and retained under conditions sufficient to ensure that such
evidence has not been substituted, contaminated, tampered with, replaced, or altered in
any respect material to the proposed DNA testing;
(8) The proposed DNA testing is reasonable in scope, uses scientifically sound methods, and
is consistent with accepted forensic practices;
(9) The petitioner identifies a theory of defense that:
(a) Is consistent with an affirmative defense presented at trial; or
(b) Would establish the actual innocence of the petitioner of the felony offense
referenced in the petitioner's assertion under subdivision (1); and
(10) If the petitioner was convicted following a trial, the identity of the perpetrator was at issue
in the trial.
Upon the receipt of the petitioner's written motion filed under section 1 of this Act,
the court shall:
(1) Notify the attorney general and the state's attorney who prosecuted the case resulting in
the petitioner's conviction; and
(2) Allow the state twenty days from the receipt of notice to respond to the motion.
The court may not appoint counsel for an indigent petitioner under this Act. However,
the court may refer requests for DNA testing to the Innocence Project in South Dakota or such
volunteer attorney as the State Bar of South Dakota may designate.
Nothing in this Act precludes a petitioner from proceeding with privately retained
Upon receiving notice from the court that a written motion has been made, the attorney
general or the state's attorney who prosecuted the case, shall take all reasonable actions necessary
to ensure that all evidence which was collected in connection with the investigation or prosecution
of the case, and which remains in the actual or constructive custody of the state or any of its political
subdivisions, is preserved pending completion of the proceedings under this Act.
The court shall direct that any DNA testing ordered pursuant to section 1 of this Act
be carried out by the South Dakota Division of Criminal Investigation. However, the court may order
DNA testing by another qualified laboratory if the court makes all necessary orders to ensure the
integrity of the specific evidence and the reliability of the testing process and test results.
Nothing in this Act prohibits a convicted person and the state from consenting to and
conducting post-conviction DNA testing by agreement of the parties, without filing a motion for
post-conviction DNA testing pursuant to this Act.
The results of any DNA testing ordered pursuant to section 1 of this Act shall be
disclosed to the court, the petitioner, and the state.
The state shall submit any test results relating to the DNA of the petitioner to the State
If the DNA test results obtained pursuant to this Act are inconclusive or show that
the petitioner was the source of the DNA evidence, the DNA sample of the petitioner shall be
retained in the State DNA Database.
If the DNA test results obtained pursuant to this Act exclude the petitioner as the
source of the DNA evidence, and a comparison of the DNA sample of the petitioner results in a
match between the DNA sample of the petitioner and another offense, the attorney general shall
notify the appropriate agency and preserve the DNA sample of the petitioner.
If DNA test results obtained pursuant to this Act are inconclusive, the circuit court
shall deny the petitioner relief.
If DNA test results obtained pursuant to this Act show that the petitioner was the
source of the DNA evidence, the court shall:
(1) Deny the petitioner relief; and
(2) On motion of the state:
(a) Assess the petitioner the cost of any DNA testing carried out pursuant to this Act;
(b) Order that the finding be forwarded to the South Dakota Board of Pardons and
Paroles so that the board may consider the finding in reviewing any subsequent
parole application submitted by the petitioner.
In any prosecution of the petitioner pursuant to this Act for false assertions or other
conduct in proceedings pursuant to this Act, the court, upon conviction of the petitioner, shall
sentence the petitioner to a sentence that runs consecutively to any other term of imprisonment the
petitioner is serving.
If DNA test results obtained pursuant to this Act exclude the petitioner as the source
of the DNA evidence, the petitioner may file a motion for a new trial. The court shall establish a
reasonable schedule for the petitioner to file such motion for a new trial and for the state to respond
to the motion for a new trial.
The court shall grant the motion of the petitioner for a new trial if the DNA test
results, when considered with all other evidence in the case, establish by compelling evidence that
a new trial would result in the acquittal of the felony offense, as referenced in section 1 of this Act,
for which the petitioner is under a sentence of imprisonment.
Nothing in this Act provides a basis for relief in any state or federal habeas corpus
An Act to provide for DNA testing for certain inmates for the purposes of determining whether they
may have been wrongfully convicted.
I certify that the attached
originated in the
Speaker of the House
President of the Senate
Secretary of the Senate
File No. ____
Chapter No. ______
Received at this Executive Office
this _____ day of _____________ ,
20____ at ____________ M.
for the Governor
The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
STATE OF SOUTH DAKOTA,
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
Secretary of State
Asst. Secretary of State