Printable Format21-2512. Forensic DNA testing; limits thereof. (a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder in the first degree as defined by K.S.A. 21-3401, prior to its repeal, or K.S.A. 21-5402, and amendments thereto, or for rape as defined by K.S.A. 21-3502, prior to its repeal, or K.S.A. 21-5503, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material that:
(1) Is related to the investigation or prosecution that resulted in the conviction;
(2) is in the actual or constructive possession of the state; and
(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.
(b) (1) The court shall notify the prosecuting attorney of a petition made under subsection (a) and shall afford the prosecuting attorney an opportunity to respond.
(2) Upon receiving notice of a petition made under subsection (a), the prosecuting attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section.
(c) The court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.
(d) The cost of DNA testing ordered under subsection (c) shall be borne by the state or the petitioner, as the court may order in the interests of justice, if it is shown that the petitioner is not indigent and possesses the means to pay.
(e) The court may at any time appoint counsel for an indigent applicant under this section.
(f) (1) Except as provided in subsection (f)(3), if the results of DNA testing conducted under this section are unfavorable to the petitioner, the court:
(A) Shall dismiss the petition; and
(B) in the case of a petitioner who is not indigent, may assess the petitioner for the cost of such testing.
(2) If the results of DNA testing conducted under this section are favorable to the petitioner and are of such materiality that a reasonable probability exists that the new evidence would result in a different outcome at a trial or sentencing, the court shall:
(A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and
(B) enter any order that serves the interests of justice, including, but not limited to, an order:
(i) Vacating and setting aside the judgment;
(ii) discharging the petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial.
(3) If the results of DNA testing conducted under this section are inconclusive, the court may order a hearing to determine whether there is a substantial question of innocence. If the petitioner proves by a preponderance of the evidence that there is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2).
(g) Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.
History: L. 2001, ch. 208, § 4; L. 2013, ch. 96, § 1; July 1.
Law Review and Bar Journal References:
"Criminal Procedure Survey of Recent Cases," 54 K.L.R. 895 (2006).
CASE ANNOTATIONS
1. K.S.A. 60-1507 motion to be liberally construed to include request for DNA testing if request complies with provisions of K.S.A. 21-2512. Bruner v. State, 277 Kan. 603, 88 P.3d 216 (2004).
2. Provisions of section are extended to permit person convicted of aggravated criminal sodomy to request DNA testing. State v. Denney, 278 Kan. 643, 101 P.3d 1257 (2004).
3. Plea of guilty alone does not disqualify defendant from seeking DNA testing. State v. Smith, 34 Kan. App. 2d 368, 119 P.3d 679 (2005).
4. Defendant entitled to evidentiary hearing on motion for DNA testing. Goldsmith v. State, 34 Kan. App. 2d 789, 124 P.3d 516 (2005).
5. Statutory provisions extensively analyzed, interpreted and applied. Haddock v. State, 282 Kan. 475, 494, 146 P.3d 187 (2006).
6. Unfavorable post-conviction DNA testing not continuation of trial, no right of confrontation; strict rules of evidence not applicable. State v. Denney, 283 Kan. 781, 791, 793, 156 P.3d 1275 (2007).
7. No equal protection violation in not providing DNA testing for intentional second-degree murder. State v. Salas, 289 Kan. 245, 210 P.3d 635 (2009).
8. Provision discussed and applied; DNA testing denied because it would not produce exculpatory evidence. State v. Lackey, 42 Kan. App. 2d 89, 208 P.3d 793 (2009).
9. No Kansas cases address to what extent defendants who do not come within K.S.A. 21-2512 can obtain DNA testing. LaPointe v. State, 42 Kan. App. 2d 522, 214 P.3d 684 (2009).
10. Where court orders for postconviction forensic DNA testing of multiple items in murder and rape cases, state may not unilaterally discontinue testing after single unfavorable result to the defense. Goldsmith v. State, 292 Kan. 398, 255 P.3d 14 (2011).
11. District court's denial of petitioner's request for retesting of the murder weapon justified. Wimbley v. State, 292 Kan. 796, 257 P.3d 328 (2011).
12. New evidence resulting from postconviction DNA testing is held not to change the results of trial under the facts of the case. Haddock v. State, 295 Kan. 738, 286 P.3d 837 (2012).
13. Case remanded for an evidentiary hearing with appointed counsel on defendant's request for DNA testing. State v. Lackey, 295 Kan. 816, 286 P.3d 859 (2012).
14. Held in violation of the equal protection clause of the 14 th Amendment by denying access to post-conviction DNA testing to certain individuals. State v. Cheeks, 298 Kan. 1, 310 P.3d 346 (2013).
15. Appellate court reviews a lower court's decision to deny a motion for new trial based on new DNA testing results under the abuse of discretion standard. State v. Rodriguez, 302 Kan. 85, 95, 350 P.3d 1083 (2015).
16. Section does not require that a person requesting DNA testing be in state custody at the time the petition is heard, only that the person be in state custody at the time the petition is filed. State v. Cheeks, 302 Kan. 259, 260-61, 352 P.3d 551 (2015).
17. Post-conviction DNA testing statute applying to rape or aggravated criminal sodomy, but excluding certain similarly situated offenders, violates the equal protection clause; extended to include offenders convicted of aggravated indecent liberties with a child under the age of 14 and sentenced under Jessica's Law to hard 25 life sentences. State v. Kelsey, 51 Kan. App. 2d 819, 829, 356 P.3d 414 (2015).
18. District court should order DNA testing if the testing may produce exculpatory evidence even if the evidence is not exonerating. State v. Hernandez, 303 Kan. 609, 619, 366 P.3d 200 (2016).
19. A person is considered to be in state custody if the person is in federal custody subject to a detainer for a Kansas conviction when a motion for DNA testing is made; a court is not required to grant a defendant affirmative relief upon a favorable result in postconviction DNA testing. State v. LaPointe, 309 Kan. 299, 305, 434 P.3d 850, 856 (2019).
20. A petition for DNA testing may be made at any time after conviction. State v. Williams, 58 Kan. App. 2d 409, 417-20, 471 P.3d 17 (2020).
21. District court did not abuse discretion by denying a new trial where there was no reasonable probability that DNA results would change the original trial's outcome under the facts presented. State v. Edwards, 311 Kan. 879, 892, 467 P.3d 484 (2020).
22. Statute grants continuing jurisdiction to the court that entered judgment and allows consideration of the petition at any time following conviction regardless of ongoing appellate proceedings. State v. Thurber, 313 Kan. 1002, 492 P.3d 1185 (2021).