2A:84A-32a Motion for performance of forensic DNA testing, certain circumstances.

1. a. Any eligible person may make a motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing.

(1) The motion shall be verified by the eligible person under penalty of perjury and shall do all of the following:

(a) explain why the identity of the defendant was a significant issue in the case;

(b) explain in light of all the evidence, how if the results of the requested DNA testing are favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted;

(c) explain whether DNA testing was done at any prior time, whether the defendant objected to providing a biological sample for DNA testing, and whether the defendant objected to the admissibility of DNA testing evidence at trial. If evidence was subjected to DNA or other forensic testing previously by either the prosecution or the defense, the court shall order the prosecution or defense to provide all parties and the court with access to the laboratory reports, underlying data and laboratory notes prepared in connection with the DNA testing;

(d) make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought; and

(e) include consent to provide a biological sample for DNA testing.

(2) Notice of the motion shall be served on the Attorney General, the prosecutor in the county of conviction, and if known, the governmental agency or laboratory holding the evidence sought to be tested. Responses, if any, shall be filed within 60 days of the date on which the Attorney General and the prosecutor are served with the motion, unless a continuance is granted. The Attorney General or prosecutor may support the motion for DNA testing or oppose it with a statement of reasons and may recommend to the court that if any DNA testing is ordered, a particular type of testing be conducted.

b. The court, in its discretion, may order a hearing on the motion. The motion shall be heard by the judge who conducted the trial unless the presiding judge determines that judge is unavailable. Upon request of either party, the court may order, in the interest of justice, that the eligible person who is serving a term of imprisonment at the time of the hearing be present at the hearing of the motion.

c. The court shall appoint counsel for the eligible person who brings a motion pursuant to this section if that person is indigent.

d. The court shall not grant the motion for DNA testing unless, after conducting a hearing, it determines that all of the following have been established:

(1) the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion;

(2) the evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect;

(3) the identity of the defendant was a significant issue in the case;

(4) the eligible person has made a prima facie showing that the evidence sought to be tested is material to the issue of the eligible person's identity as the offender;

(5) the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion may consider any evidence whether or not it was introduced at trial;

(6) the evidence sought to be tested meets either of the following conditions:

(a) it was not tested previously;

(b) it was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results;

(7) the testing requested employs a method generally accepted within the relevant scientific community; and

(8) the motion is not made solely for the purpose of delay.

e. If the court grants the motion for DNA testing, the court order shall identify the specific evidence to be tested and the DNA technology to be used.

(1) If the parties agree upon a mutually acceptable laboratory that is accredited by a nonprofit professional association of persons actively involved in forensic science that is nationally recognized within the forensic science community and approved by the Director of the Federal Bureau of Investigation in accordance with the provisions of the Federal DNA Identification Act, 42 U.S.C.A. s.14131, the testing shall be conducted by that laboratory.

(2) If the parties fail to agree, the testing shall be conducted by the New Jersey State Police Office of Forensic Sciences Laboratory. For good cause shown, however, the court may, subject to the provisions of section 2 of P.L.2015, c.127 (C.2A:84A-32c), direct the evidence to an alternative laboratory that is accredited by a nonprofit professional association of persons actively involved in forensic science that is nationally recognized within the forensic science community and approved by the Director of the Federal Bureau of Investigation in accordance with the provisions of the Federal DNA Identification Act, 42 U.S.C.A. s.14131.

f. The result of any testing ordered pursuant to this section shall be fully disclosed to the person filing the motion, the prosecutor and the Attorney General. If requested by any party, the court shall order production of the underlying laboratory data and notes.

g. The costs of the DNA testing ordered pursuant to this section shall be borne by the eligible person.

h. An order granting or denying a motion for DNA testing pursuant to this section may be appealed, pursuant to the Rules of Court.

i. DNA testing ordered by the court pursuant to this section shall be done as soon as practicable.

j. DNA profile information from biological samples taken from an eligible person pursuant to a motion for post-conviction DNA testing in accordance with the provisions of this section shall be treated as confidential and shall not be deemed a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or the common law concerning access to public records; except as provided in section 2 of P.L.2001, c.377 (C.53:1-20.37).

k. As used in this act and in P.L.2015, c.127 (C.2A:84A-32c et al.):

"DNA," "DNA sample," "State DNA databank," "CODIS" and "FBI" shall have the meaning set forth in section 3 of P.L.1994, c.136 (C.53:1-20.19).

"NDIS-participating laboratory" is a laboratory that has been designated to operate CODIS and participate in the National and State DNA Index System.

l. If evidence tested at a non-NDIS-participating laboratory pursuant to this section reveals a DNA profile that is not that of the eligible person or the victim, the court shall direct the prosecuting agency appearing on the motion to request that the New Jersey State Police Office of Forensic Services DNA Laboratory or other NDIS-participating laboratory involved in the matter submit the profile to CODIS, if the requirements and prerequisites for acceptance and submission are met, to determine whether it matches a DNA profile of a known individual or a DNA profile from an unsolved crime.

m. An eligible person may file a motion for the performance of forensic DNA testing with the trial court that entered the judgment of conviction. The motion may be considered in accordance with the provisions of this section only if the court finds just cause to hear the motion.

For a person who was convicted of a crime and is serving a sentence imposed for that criminal conviction, a determination of just cause shall be based on a reasonable probability that, if the results of the requested DNA testing were favorable, a motion for a new trial based on newly discovered evidence would be granted.

For a person who has been convicted of a crime and has completed serving the sentence for that conviction, a determination of just cause shall be based on a significant likelihood that, if the results of the requested DNA testing were favorable, a motion for a new trial based on newly discovered evidence would be granted.

n. For the purposes of this section, "eligible person" means a person who was convicted of a crime:

(1) and is currently serving a sentence imposed for that criminal conviction which includes a period of imprisonment; or

(2) who has completed serving the sentence for that conviction and demonstrates just cause as established in subsection m. of this section.

L.2001, c.377, s.1; amended 2015, c.127, s.1.