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S. B. No. 77 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Senators Seitz, Miller, R., Stewart, Schuring
A BILL
To amend sections 109.573, 2901.07, 2953.21, 2953.23,
2953.71,
2953.72,
2953.73, 2953.74, 2953.75,
2953.76,
2953.77,
2953.78, 2953.79, 2953.81,
2953.83, and
2953.84, to enact sections 105.912,
109.561,
2933.81,
2933.82, and 2933.83, and to
repeal
section 2953.82 of
the Revised Code
relative
to
the expansion of DNA
testing for
certain
convicted felons, the elimination of the
DNA
testing mechanism for felons who pleaded
guilty or
no contest to the offense, the
collection of DNA specimens from all persons
eighteen years of age or older who are arrested
for a felony offense, the
preservation and
accessibility of biological
evidence in a
criminal or delinquency
investigation or
proceeding, the improvement of eyewitness
identification procedures, and the electronic or
audio
recording of custodial
interrogations.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.573, 2901.07, 2953.21, 2953.23,
2953.71,
2953.72,
2953.73, 2953.74, 2953.75, 2953.76, 2953.77,
2953.78,
2953.79,
2953.81, 2953.83, and 2953.84 be amended and
sections
105.912,
109.561, 2933.81, 2933.82, and 2933.83
of the
Revised
Code be
enacted to read as follows:
Sec. 105.912. The Ohio judicial conference shall develop the
forms regarding custodial interrogations that are described in
division (F) of section 2933.81 of the Revised Code, distribute
copies of
the forms as specified in that division, and monitor
compliance
with the recording requirement in division (B) of that
section as
specified in division (F) of that section.
Sec. 109.561. There is hereby established within the bureau
of criminal identification and investigation a preservation of
biological evidence task force. The task force shall consist of
officers and employees of the bureau. The task force shall perform
the duties and functions specified in division (D) of section
2933.82 of the Revised Code.
Sec. 109.573. (A) As used in this section:
(1) "DNA" means human deoxyribonucleic acid.
(2) "DNA analysis" means a laboratory analysis of a DNA
specimen to identify DNA characteristics and to create a
DNA
record.
(3) "DNA database" means a collection of DNA records
from
forensic casework or from crime scenes, specimens from anonymous
and
unidentified sources, and
records collected pursuant to
sections 2152.74 and 2901.07 of the
Revised Code and a population
statistics database for
determining the frequency of occurrence of
characteristics in DNA
records.
(4) "DNA record" means the objective result of a DNA
analysis
of a DNA specimen, including representations of
DNA
fragment
lengths, digital images of autoradiographs, discrete
allele
assignment numbers, and other DNA specimen characteristics
that
aid in establishing the identity of an individual.
(5) "DNA specimen" includes human blood cells or
physiological
tissues or body fluids.
(6) "Unidentified person database" means a collection of DNA
records, and, on and after
May 21, 1998, of fingerprint and
photograph records,
of unidentified human corpses, human remains,
or living individuals.
(7) "Relatives of missing persons database" means a
collection
of DNA records of persons
related by consanguinity to a
missing
person.
(8) "Law enforcement agency" means a police department, the
office of a sheriff, the state highway patrol, a county
prosecuting attorney, or a federal, state, or local governmental
body that enforces criminal laws and that has employees who have
a
statutory power of arrest.
(9) "Administration of criminal justice" means the
performance of detection, apprehension, detention, pretrial
release, post-trial release, prosecution, adjudication,
correctional supervision, or rehabilitation of accused persons or
criminal offenders. "Administration of criminal justice" also
includes criminal identification activities and the collection,
storage, and dissemination of criminal history record information.
(B)(1) The superintendent of the bureau of criminal
identification and investigation may do all of the following:
(a) Establish and maintain a state DNA
laboratory to
perform
DNA analyses of DNA specimens;
(b) Establish and maintain a DNA
database;
(c) Establish and maintain an unidentified person
database
to
aid in the establishment of the identity of unknown human
corpses,
human remains, or living individuals;
(d) Establish and maintain a relatives of missing
persons
database for comparison with the unidentified person
database to
aid in the establishment of the identity of unknown
human corpses,
human remains, and living individuals.
(2) If the bureau of criminal identification and
investigation establishes
and maintains a DNA laboratory and a DNA
database, the
bureau may use or disclose information regarding DNA
records for the
following purposes:
(a) The bureau may disclose information to a law enforcement
agency for
the administration of criminal justice.
(b) The bureau shall disclose pursuant to a court
order
issued under section 3111.09 of the Revised Code any information
necessary to determine the existence of a parent
and child
relationship in an action brought under sections 3111.01 to
3111.18
of the Revised Code.
(c) The bureau may use or disclose information from
the
population statistics database, for identification research
and
protocol development, or for quality control purposes.
(3) If the bureau of criminal identification and
investigation
establishes and maintains a relatives of missing
persons
database, all of the following apply:
(a) If a person has disappeared and has been
continuously
absent from the person's place of last domicile for
a thirty-day
or longer period of time without being heard from during the
period, persons related by consanguinity to
the missing person may
submit to the
bureau a DNA specimen, the
bureau may include the
DNA record of the specimen
in the relatives
of missing persons
database,
and, if the bureau does not include
the DNA record of
the
specimen in the relatives of missing persons
database, the
bureau shall retain
the DNA record for future
reference and
inclusion as appropriate in that database.
(b) The bureau shall not charge a fee for the
submission of
a
DNA
specimen pursuant to division (B)(3)(a) of this
section.
(c)
If the DNA specimen submitted pursuant to division
(B)(3)(a) of this section is collected by withdrawing blood from
the person or a similarly invasive procedure, a physician,
registered nurse, licensed practical nurse,
duly licensed
clinical
laboratory technician, or other qualified
medical practitioner
shall
conduct the collection procedure for
the DNA specimen
submitted
pursuant to division
(B)(3)(a) of this
section and shall
collect the
DNA specimen in a medically
approved
manner.
If the
DNA specimen is collected by swabbing for buccal cells or a
similarly noninvasive procedure, division (B)(3)(c) of this
section does not require that the DNA specimen be collected by a
qualified medical practitioner of that nature. No later than
fifteen days after the date of
the
collection of the DNA
specimen,
the person conducting the
DNA
specimen collection
procedure shall
cause the DNA
specimen to be
forwarded to the bureau of criminal
identification and
investigation in accordance with procedures
established by the
superintendent of the bureau under division
(H)
of this section.
The bureau
may provide the specimen vials,
mailing tubes, labels,
postage, and instruction needed for the
collection and
forwarding
of the DNA specimen
to the bureau.
(d) The superintendent, in the superintendent's
discretion,
may compare DNA
records in the relatives of missing persons
database with the
DNA records in the unidentified person database.
(4) If the bureau of criminal identification and
investigation establishes and maintains an unidentified person
database and if the superintendent of the bureau
identifies a
matching DNA record for the DNA record of a
person or deceased
person whose
DNA record is contained in the
unidentified person
database, the superintendent shall inform
the coroner who
submitted or the law enforcement agency that submitted the
DNA
specimen to the bureau of
the match and, if possible, of the
identity of the unidentified person.
(5) The bureau of criminal identification and investigation
may enter into a contract with a qualified public or private
laboratory to
perform DNA analyses, DNA specimen maintenance,
preservation, and storage, DNA record keeping, and other duties
required of the bureau under this section. A public or private
laboratory
under contract with the bureau shall follow quality
assurance and privacy
requirements established by the
superintendent of the bureau.
(C) The superintendent of the bureau of criminal
identification
and investigation shall establish procedures for
entering into the
DNA
database the DNA records submitted pursuant
to sections 2152.74 and
2901.07 of the Revised Code and for
determining an order of priority for entry
of the
DNA records
based on the types of offenses committed by the persons
whose
records are submitted and the available resources of the bureau.
(D) When a DNA record is derived from a DNA
specimen
provided
pursuant to section 2152.74 or 2901.07 of the Revised
Code,
the
bureau of
criminal identification and investigation
shall attach
to the DNA
record personal identification information
that
identifies the person from
whom the DNA specimen was taken.
The
personal identification
information may include the subject
person's fingerprints and any other
information the bureau
determines necessary. The DNA
record and personal identification
information attached to it shall be used
only for the purpose of
personal identification or for a purpose specified in
this
section.
(E) DNA records, DNA specimens,
fingerprints, and
photographs
that the bureau of criminal
identification and
investigation
receives pursuant to this section and sections
313.08, 2152.74,
and 2901.07 of the Revised
Code and personal
identification
information attached to a
DNA record are not public
records under
section 149.43 of the
Revised Code.
(F) The bureau of criminal identification and investigation
may
charge a reasonable fee for providing information pursuant to
this section to
any law enforcement agency located in another
state.
(G)(1) No person who because of the person's employment or
official
position has access to a DNA specimen, a DNA record, or
other information contained in the DNA database that identifies an
individual shall knowingly disclose that specimen, record, or
information to
any person or agency not entitled to receive it or
otherwise
shall misuse that specimen, record, or information.
(2) No person without authorization or privilege to obtain
information contained in the DNA database that identifies an
individual person
shall purposely obtain that information.
(H) The superintendent of the bureau of criminal
identification
and investigation shall establish procedures for
all of the
following:
(1) The forwarding to the bureau of DNA specimens collected
pursuant to division (H) of this section and sections 313.08,
2152.74, and 2901.07
of the Revised Code and of fingerprints and
photographs collected pursuant
to section 313.08 of the Revised
Code;
(2) The collection, maintenance, preservation, and analysis
of
DNA specimens;
(3) The creation, maintenance, and operation of the DNA
database;
(4) The use and dissemination of information from the DNA
database;
(5) The creation, maintenance, and operation of the
unidentified person database;
(6) The use and dissemination of information from the
unidentified person database;
(7) The creation, maintenance, and operation of the
relatives
of missing persons database;
(8) The use and dissemination of information from the
relatives of missing persons database;
(9) The verification of entities requesting DNA records and
other DNA information from the bureau and the authority of the
entity
to receive the information;
(10) The operation of the bureau and responsibilities of
employees of the bureau with respect to the activities described
in this
section.
(I) In conducting DNA analyses of DNA specimens, the state
DNA laboratory and any laboratory with which the bureau has
entered into a contract pursuant to division (B)(5) of this
section shall give DNA analyses of DNA specimens that relate to
ongoing criminal investigations or prosecutions priority over DNA
analyses of DNA specimens that relate to applications made
pursuant to section 2953.73 or 2953.82 of the Revised Code.
Sec. 2901.07. (A) As used in this section:
(1)
"DNA analysis" and
"DNA specimen" have the same
meanings
as in section 109.573 of the Revised Code.
(2)
"Jail" and
"community-based correctional facility" have
the
same meanings as in section 2929.01 of the Revised Code.
(3)
"Post-release control" has the same meaning as in
section
2967.01
of the Revised Code.
(4) "Head of the arresting law enforcement agency" means
whichever of the following is applicable regarding the arrest in
question:
(a) If the arrest was made by a sheriff or a deputy sheriff,
the sheriff who made the arrest or who employs the deputy sheriff
who made the arrest;
(b) If the arrest was made by a law enforcement officer of a
law enforcement agency of a municipal corporation, the chief of
police, marshal, or other chief law enforcement officer of the
agency that employs the officer who made the arrest;
(c) If the arrest was made by a constable or a law
enforcement officer of a township police department or police
district police force, the constable who made the arrest or the
chief law enforcement officer of the department or agency that
employs the officer who made the arrest;
(d) If the arrest was made by the superintendent or a trooper
of the state highway patrol, the superintendent of the state
highway patrol;
(e) If the arrest was made by a law enforcement officer not
identified in division (A)(4)(a), (b), (c), or (d) of this
section, the chief law enforcement officer of the law enforcement
agency that employs the officer who made the arrest.
(B)(1) A person who is eighteen years of age or older and who
is arrested on or after the effective date of this amendment for a
felony offense shall submit to a DNA specimen collection procedure
administered by the head of the arresting law enforcement agency.
The head of the arresting law enforcement agency shall cause the
DNA specimen to be collected from the person during the intake
process at the jail, community-based correctional facility,
detention facility, or law enforcement agency office or station to
which the arrested person is taken after the arrest. The head of
the arresting law enforcement agency shall cause the DNA specimen
to be collected in accordance with division (C) of this section.
(2) Regardless of when the conviction occurred or the
guilty
plea was entered, a person who has been convicted of, is
convicted of, has pleaded guilty to, or pleads
guilty to a
felony
offense and, who is
sentenced to a prison term or to a community
residential sanction
in a jail
or community-based correctional
facility for that offense pursuant to
section 2929.16 of the
Revised Code, and who does not provide a DNA specimen pursuant to
division (B)(1) of this section, and
a person who has been
convicted of, is convicted
of, has pleaded guilty to, or pleads
guilty to a misdemeanor
offense listed
in division
(D) of this
section and, who is
sentenced to a term of
imprisonment
for that
offense, and who does not provide a DNA specimen pursuant to
division (B)(1) of this section, shall submit
to a
DNA specimen
collection
procedure administered
by the
director of
rehabilitation and
correction or the chief
administrative officer
of the jail or other
detention facility in
which the person is
serving the
term of imprisonment. If the
person serves the prison
term in a state correctional institution,
the
director of
rehabilitation and correction shall cause the
DNA
specimen to be
collected from the person during the intake
process
at the
reception
facility designated by the director. If the
person
serves the
community residential sanction or term of
imprisonment
in a jail, a
community-based correctional facility,
or another
county, multicounty,
municipal,
municipal-county, or
multicounty-municipal detention facility, the chief
administrative
officer of the jail,
community-based correctional facility, or
detention
facility shall cause the
DNA specimen to be collected
from the person during the intake
process at the jail,
community-based correctional facility, or
detention facility. The
DNA specimen shall be
collected in
accordance with division (C) of
this section.
(2)(3) Regardless of when the conviction occurred or the
guilty
plea was entered, if a person has been convicted of, is
convicted
of, has pleaded guilty to, or pleads guilty to
a felony
offense or
a misdemeanor
offense listed in division (D) of this
section, is
serving
a
prison term, community residential sanction,
or term of
imprisonment
for that offense, and does not provide a
DNA
specimen
pursuant to division (B)(1) or (2) of this section,
prior to the person's
release from the prison term, community
residential sanction, or
imprisonment, the
person shall submit to,
and the director of
rehabilitation and
correction or the chief
administrative officer
of the jail, community-based
correctional
facility, or detention
facility in which the person is serving
the
prison term, community
residential sanction, or term of
imprisonment
shall administer, a
DNA specimen collection
procedure
at the state correctional
institution, jail, community-based
correctional facility, or
detention facility in which the person
is serving
the prison term,
community
residential sanction, or
term of imprisonment. The
DNA
specimen shall be
collected in
accordance with division (C)
of
this section.
(3)(4)(a) Regardless of when the conviction occurred or the
guilty plea was entered, if a person has been convicted of,
is
convicted of, has pleaded guilty to, or pleads guilty to a felony
offense or a misdemeanor
offense listed in division (D) of this
section and the person is on
probation,
released on parole,
under
transitional
control, on community control, on
post-release
control,
or under any other type of supervised release
under
the
supervision of
a probation
department or
the
adult parole
authority for that offense, the person shall submit to a DNA
specimen collection procedure administered by the chief
administrative officer of the probation department or the adult
parole authority. The DNA specimen shall be collected in
accordance with division (C) of this section. If the person
refuses to submit to a DNA specimen collection procedure as
provided in this division, the person may be subject to the
provisions of section 2967.15 of the Revised Code.
(b) If a person to whom division (B)(3)(4)(a) of this section
applies is
sent to
jail or is
returned to a jail,
community-based
correctional
facility, or
state correctional
institution for a
violation
of
the
terms and
conditions of the
probation,
parole,
transitional
control, other
release, or
post-release
control, if
the person was
or will be
serving
a
term
of imprisonment, prison
term, or
community
residential
sanction
for
committing a felony
offense or for committing a misdemeanor offense listed in
division
(D) of this section,
and if the person did
not provide a
DNA
specimen
pursuant to
division (B)(1),
(2), (3), or (3)(4)(a) of
this
section,
the
person shall submit
to, and the
director of
rehabilitation and
correction or the chief
administrative
officer
of the jail or
community-based correctional
facility shall
administer, a DNA
specimen collection
procedure at
the jail,
community-based
correctional facility, or state
correctional
institution in which
the person is serving
the
term
of
imprisonment, prison term, or
community residential
sanction.
The
DNA specimen shall be
collected from the
person in accordance with
division
(C) of this
section.
(4)(5) Regardless of when the conviction occurred or the
guilty
plea was entered, if a person has been convicted of, is
convicted
of, has pleaded guilty to, or pleads guilty to a felony
offense or
a misdemeanor offense listed in division (D) of this
section, the
person is not sentenced to a prison term, a
community residential
sanction in a jail or community-based
correctional facility, a
term of imprisonment, or any type of
supervised release under the
supervision of a probation
department or the adult parole
authority, and the person does not
provide a DNA specimen pursuant
to division (B)(1), (2), (3),
(4)(a), or (3)(4)(b) of this section, the
sentencing court shall
order the person to report to the county
probation department
immediately after sentencing to submit to a
DNA specimen
collection procedure administered by the chief
administrative
officer of the county probation office. If the
person is
incarcerated at the time of sentencing, the person shall
submit
to a DNA specimen collection procedure administered by the
director of rehabilitation and correction or the chief
administrative officer of the jail or other detention facility in
which the person is incarcerated. The DNA specimen shall be
collected in accordance with division (C) of this section.
(C)
If the DNA specimen is collected by withdrawing blood
from the person or a similarly invasive procedure, a physician,
registered
nurse, licensed practical nurse,
duly licensed clinical
laboratory technician,
or other qualified
medical practitioner
shall collect in a medically approved
manner
the DNA specimen
required to be collected pursuant to division
(B)
of this section.
If the DNA specimen is collected by swabbing for buccal cells or a
similarly noninvasive procedure, this section does not require
that the DNA specimen be collected by a qualified medical
practitioner of that nature. No later than fifteen days after the
date of
the
collection of the DNA specimen, the head of the
arresting law enforcement agency regarding a DNA specimen taken
pursuant to division (B)(1) of this section, the director of
rehabilitation
and
correction or the chief administrative officer
of the jail,
community-based correctional facility, or other
county,
multicounty,
municipal, municipal-county, or
multicounty-municipal
detention facility,
in which the person is
serving the prison
term,
community residential sanction, or term
of imprisonment regarding a DNA specimen taken pursuant to
division (B)(2), (3), or (4)(b) of this section, the chief
administrative officer of the probation department or the adult
parole authority regarding a DNA specimen taken pursuant to
division (B)(4)(a) of this section, or the chief administrative
officer of the county probation office, the director of
rehabilitation and correction, or the chief administrative officer
of the jail or other detention facility in which the person is
incarcerated regarding a DNA specimen taken pursuant to division
(B)(5) of this section, whichever is applicable,
shall cause the
DNA specimen to be forwarded to
the bureau of
criminal
identification and investigation in
accordance with
procedures
established by the superintendent
of
the bureau under
division (H)
of section 109.573 of the
Revised
Code. The bureau
shall provide
the
specimen vials, mailing tubes,
labels, postage,
and
instructions needed for
the collection and
forwarding of the
DNA
specimen to the bureau.
(D) The director of rehabilitation and correction, the
chief
administrative officer of the jail, community-based
correctional
facility,
or other county, multicounty, municipal,
municipal-county, or multicounty-municipal detention facility, or
the chief administrative officer of a county probation department
or the adult parole authority
shall cause a
DNA specimen to be
collected in
accordance
with
divisions (B) and (C) of this section
from a person in
its custody or under its supervision DNA specimen
collection duty set forth in division (B)(1) of this section
applies to any person who is eighteen years of age or older and
who is arrested on or after the effective date of this amendment
for any felony offense. The DNA specimen collection duties set
forth in divisions (B)(2), (3), (4)(a), (4)(b), and (5) of this
section apply to any person
who has been
convicted of, is
convicted of, has pleaded guilty to, or pleads
guilty to
any
felony offense or any of the
following misdemeanor
offenses:
(1) A misdemeanor violation, an attempt to commit a
misdemeanor violation, or complicity in committing a misdemeanor
violation of section 2907.04 of the
Revised
Code;
(2) A misdemeanor
violation of any law that arose out of the
same
facts
and
circumstances and
same act as did a charge against
the
person
of a violation of section
2903.01,
2903.02,
2905.01,
2907.02,
2907.03, 2907.04, 2907.05,
or
2911.11 of the
Revised Code
that
previously was
dismissed or
amended or as did a charge
against the
person of a
violation of
section 2907.12 of the
Revised Code
as it
existed
prior to
September 3,
1996, that
previously was dismissed
or
amended;
(3) A misdemeanor violation of section 2919.23 of the
Revised
Code that would
have been a
violation of section 2905.04 of the
Revised Code as it existed prior to July
1,
1996, had it been
committed prior to that date;
(4) A sexually oriented offense or a child-victim oriented
offense, both as defined in section
2950.01 of the
Revised Code,
that is a misdemeanor, if, in relation to that offense, the
offender
is a tier III sex
offender/child-victim offender, as
defined in
section 2950.01
of the Revised Code.
(E) The director of rehabilitation and correction may
prescribe rules in accordance with Chapter 119. of the Revised
Code to collect a DNA specimen, as provided in this section, from
an offender whose supervision is transferred from another state to
this state in accordance with the interstate compact for adult
offender supervision described in section 5149.21 of the Revised
Code.
Sec. 2933.81. (A) As used in this section:
(1) "Custodial interrogation" means any interrogation
involving a law enforcement officer's questioning that is
reasonably likely to elicit incriminating responses and in which a
reasonable person in the subject's position would consider self to
be in custody, beginning when a person should have been advised of
the person's right to counsel and right to remain silent and of
the fact that anything the person says could be used against the
person, as specified by the United States supreme court in Miranda
v. Arizona (1966), 384 U.S. 436, and subsequent decisions, and
ending when the questioning has completely finished.
(2) "Detention facility" has the same meaning as in section
2921.01 of the Revised Code.
(3) "Electronic recording" or "electronically recorded" means
an audio and visual recording that is an authentic, accurate,
unaltered record of a custodial interrogation.
(4) "Local correctional facility" has the same meaning as in
section 2903.13 of the Revised Code.
(5) "Place of detention" means a jail, police or sheriff's
station, holding cell, state correctional institution, local
correctional facility, detention facility, department of youth
services facility, or other place where persons are questioned in
connection with criminal charges or delinquent child allegations
or proceedings.
(6) "State correctional institution" has the same meaning as
in section 2967.01 of the Revised Code.
(7) "Statement" means an oral, written, sign language, or
nonverbal communication.
(B)(1) Except as otherwise provided in division (B)(2) of
this section, all statements made by a person during a custodial
interrogation shall be electronically recorded.
(2) If any part of a custodial interrogation of a person
takes place outside of a place of detention and it is
not
possible to electronically record the statements made by the
person during that part of the interrogation, all statements made
by the person during that part of the interrogation shall be
recorded in an audio recording that is an authentic, accurate,
unaltered record of that part of the interrogation.
(3) During a custodial interrogation in a place of detention,
the camera used in making the electronic recording shall be
simultaneously focused upon both the interrogator and the person
being interrogated.
(C) In any criminal or delinquent child action or proceeding
brought against a person, if any party to the action or proceeding
seeks the admission as evidence of any statement made by the
person during a custodial interrogation that is not electronically
recorded or recorded as authorized by division (B)(2) of this
section or the admission of any statement made thereafter by the
person during the same custodial interrogation or a subsequent
custodial interrogation, including but not limited to any
statement made thereafter that is electronically recorded or
recorded as authorized by division (B)(2) of this section, and if
the statement otherwise is admissible in the action or proceeding
under the Rules of Evidence, the court in its discretion may admit
the statement as evidence or may exclude the statement from
admission as evidence. If the court indicates that it intends to
admit the statement as evidence, any party to the action or
proceeding may object and file or make a motion to exclude the
statement. If a party objects and makes or files a motion to
exclude the statement, the court shall rule on the motion in
accordance with the Rules of Evidence.
(D) Regardless of whether the statement was electronically
recorded or recorded as authorized by division (B)(2) of this
section, any statement of a person made in a custodial
interrogation may be admitted into evidence in a criminal or
delinquent child proceeding brought against the person if all of
the following apply:
(1) The statement is admissible under the Rules of Evidence.
(2) The statement is proven by clear and convincing evidence
to have been made by the person voluntarily.
(3) The statement is reliable.
(4) The court finds that the custodial interrogation occurred
before a grand jury or court.
(E) In any criminal or delinquent child proceeding that is
tried before a jury, complete transcripts of all custodial
interrogations shall be made available to the jurors upon motion
by the prosecution or defense. Actual audio or video playback of
an interrogation shall be presented to the jurors only upon a
judicial determination of need.
(F) The Ohio judicial conference, pursuant to section 105.912
of the Revised Code, shall develop forms to survey custodial
interrogations electronically recorded or recorded as authorized
by division (B)(2) of this section and outcomes and identify any
patterns of noncompliance with the provisions of this section. The
conference shall provide copies of the forms to all courts of
common pleas, municipal courts, county courts, prosecuting
attorneys, city directors of law, village solicitors, and other
chief legal officers of a municipal corporation. The conference
shall monitor compliance with the recording requirement set forth
in division (B) of this section through the submission of the
forms developed under this division. The trial judge and the
prosecutor shall complete and submit these forms for all of the
following cases:
(1) Each case in which any custodial interrogation was
recorded and was introduced as evidence in a criminal case or
delinquent child case;
(2) Each case in which any custodial interrogation was
conducted and not recorded but nonetheless was introduced as
evidence in a criminal case or delinquent child case;
(3) Each case in which any custodial interrogation was
recorded and a plea of guilty to any felony charge was entered and
accepted by the court or in which an admission of a delinquent
child charge that would be a felony if committed by an adult was
entered and accepted by the juvenile court;
(4) Each case in which any custodial interrogation was
conducted and not recorded and a plea of guilty to any felony
charge was entered and accepted by the court or in which an
admission of a delinquent child charge that would be a felony if
committed by an adult was entered and accepted by the juvenile
court.
(G)(1) Law enforcement personnel shall clearly identify and
catalogue every electronic recording of a custodial interrogation
and every recording of a part of a custodial interrogation
recorded as authorized by division (B)(2) of this section.
(2) If a criminal or delinquent child proceeding is brought
against a person who was the subject of a custodial interrogation
that was electronically recorded or who was the subject of a part
of a custodial interrogation that was recorded as authorized by
division (B)(2) of this section, law enforcement personnel shall
preserve the recording until the later of when all appeals,
post-conviction
relief proceedings, and habeas corpus proceedings
are final and
concluded or the expiration of the period of time
within which
such appeals and proceedings must be brought.
(3) Upon motion by the defendant in a criminal proceeding or
the alleged delinquent child in a delinquent child proceeding, the
court may order that a copy of an electronic recording of a
custodial interrogation of the person or of a recording of a part
of a custodial interrogation of the person recorded as authorized
by division (B)(2) of this section be preserved for any period
beyond the expiration of all appeals, post-conviction relief
proceedings, and habeas corpus proceedings.
(4) If no criminal or delinquent child proceeding is brought
against a person who was the subject of a custodial interrogation
that was electronically recorded or who was the subject of a part
of a custodial interrogation that was recorded as authorized by
division (B)(2) of this section, law enforcement personnel shall
preserve the related recording until all applicable state and
federal statutes of limitations bar prosecution of the person for
any offense or violation based on or related to any conduct
discussed in the custodial interrogation.
Sec. 2933.82. (A) As used in this section:
(1)(a) "Biological evidence" means any of the following:
(i) The contents of a sexual assault examination kit;
(ii) Any item that contains blood, semen, hair, saliva, skin
tissue, fingernail scrapings, bone, bodily fluids, or any other
identifiable biological material that was collected as part of a
criminal investigation or delinquent child investigation and that
reasonably may be used to incriminate or exculpate any person for
an offense or delinquent act.
(b) The definition of "biological evidence" set forth in
division (A)(1)(a) of this section applies whether the material in
question is catalogued separately, such as on a slide or swab or
in a test tube, or is present on other evidence, including, but
not limited to, clothing, ligatures, bedding or other household
material, drinking cups or containers, or cigarettes.
(2) "Biological material" has the same meaning as in section
2953.71 of the Revised Code.
(3) "DNA" has the same meaning as in section 109.573 of the
Revised Code.
(4) "Profile" means a unique identifier of an individual,
derived from DNA.
(5) "Prosecutor" has the same meaning as in section 2935.01
of the Revised Code.
(6) "Governmental evidence-retention entity" means all of the
following:
(a) Any law enforcement agency, prosecutor's office, court,
public hospital, crime laboratory, or other governmental or public
entity or individual within this state that is charged with the
collection, storage, or retrieval of biological evidence;
(b) Any official or employee of any entity or individual
described in division (A)(6)(a) of this section.
(B)(1) Each governmental evidence-retention entity that
secures any biological evidence in relation to an investigation or
prosecution of a criminal offense or delinquent act shall secure
the biological evidence for whichever of the following periods of
time is applicable:
(a) For the period of time that the offense or act remains
unsolved;
(b) If any person is convicted of or pleads guilty to the
offense, or is adjudicated a delinquent child for committing the
delinquent act, for the period of time that the person remains
incarcerated, in a department of youth services institution or
other juvenile facility, under a community control sanction for
that offense, under any order of disposition for that act, on
probation or parole for that offense, under judicial release or
supervised release for that act, under post-release control for
that offense, involved in civil litigation in connection with that
offense or act, or subject to registration and other duties
imposed for that offense or act under sections 2950.04, 2950.041,
2950.05, and 2950.06 of the Revised Code.
(2) This section applies to evidence that was in the
possession of any governmental evidence-retention entity during
the investigation and prosecution of a criminal case or delinquent
child case and that, at the time the person is convicted of or
pleads guilty to the offense or is adjudicated a delinquent child
for the delinquent act, was likely to contain biological material.
(3) If a person is convicted of or pleads guilty to an
offense or is adjudicated a delinquent child for the delinquent
act and if one or more additional co-defendants of that person are
convicted of or plead guilty to the same offense or are
adjudicated delinquent children for the same delinquent act, both
of the following apply:
(a) If a governmental evidence-retention entity possesses
biological evidence related to the offense or act, the
governmental evidence-retention entity shall not destroy the
biological evidence if any of those additional co-defendants
remain in custody, incarcerated, in a department of youth services
institution or other juvenile facility, under a community control
sanction for that offense, under any order of disposition for that
act, on probation or parole for that offense, under judicial
release or supervised release for that act, under post-release
control for that offense, involved in civil litigation in
connection with that offense or act, or subject to registration
and other duties imposed for that offense or act under sections
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code.
(b) The governmental evidence-retention entity referred to in
division (B)(3)(a) of this section shall preserve the biological
evidence related to the offense for the period of time during
which any of those additional co-defendants remain in custody,
incarcerated, in an institution or facility, under a community
control sanction, under an order of disposition, on probation or
parole, under judicial release or supervised release, under
post-release control, involved in civil litigation, or subject to
registration and other duties under sections 2950.04, 2950.041,
2950.05, and 2950.06 of the Revised Code, as described in division
(B)(3)(a) of this section.
(4) A governmental evidence-retention entity that possesses
biological evidence shall retain the biological evidence in the
amount and manner sufficient to develop a DNA profile from the
biological material contained in or included on the evidence.
(5) Upon written request by the defendant in any criminal
case or the alleged delinquent child in any delinquent child case,
a governmental evidence-retention entity that possesses biological
evidence shall prepare an inventory of the biological evidence
that has been preserved in connection with the defendant's
criminal case or the alleged delinquent child's delinquent child
case.
(6) A governmental evidence-retention entity that possesses
biological evidence that includes biological material may destroy
the evidence before the expiration of the applicable period of
time specified in division (B)(1) of this section if all of the
following apply:
(a) No other provision of federal or state law requires the
state to preserve the evidence.
(b) The governmental evidence-retention entity, by certified
mail, return receipt requested, provides notice of intent to
destroy the evidence to all of the following:
(i) All persons who remain in custody, incarcerated, in a
department of youth services institution or other juvenile
facility, under a community control sanction, under any order of
disposition, on probation or parole, under judicial release or
supervised release, under post-release control, involved in civil
litigation, or subject to registration and other duties imposed
for that offense or act under sections 2950.04, 2950.041, 2950.05,
and 2950.06 of the Revised Code as a result of a criminal
conviction, delinquency adjudication, or commitment related to the
evidence in question;
(ii) The attorney of record for each person who is in custody
in any circumstance described in division (B)(6)(b)(i) of this
section;
(iii) The state public defender;
(iv) The prosecutor of record in the case that resulted in
the custody of the person in custody in any circumstance described
in division (B)(6)(b)(i) of this section;
(v) The attorney general.
(c) No person who is notified under division (B)(6)(b) of
this section does either of the following within one year after
the date on which the person receives the notice:
(i) Files a motion for testing of evidence under sections
2953.71 to 2953.81 or section 2953.82 of the Revised Code;
(ii) Submits a written request for retention of evidence to
the governmental evidence-retention entity that provided notice of
its intent to destroy evidence under division (B)(6)(b) of this
section.
(7) If, after providing notice under division (B)(6)(b) of
this section of its intent to destroy evidence, a governmental
evidence-retention entity receives a written request for retention
of the evidence from any person to whom the notice is provided,
the governmental evidence-retention entity shall retain the
evidence while the person referred to in division (B)(6)(b)(i) of
this section remains in custody, incarcerated, in a department of
youth services institution or other juvenile facility, under a
community control sanction, under any order of disposition, on
probation or parole, under judicial release or supervised release,
under post-release control, involved in civil litigation, or
subject to registration and other duties imposed for that offense
or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of
the Revised Code as a result of a criminal conviction, delinquency
adjudication, or commitment related to the evidence in question.
(8) A governmental evidence-retention entity shall not be
required to preserve physical evidence pursuant to this section
that is of such a size, bulk, or physical character as to render
retention impracticable. When retention of physical evidence that
otherwise would be required to be retained pursuant to this
section is impracticable as described in this division, the
governmental evidence-retention entity that otherwise would be
required to retain the physical evidence shall remove and preserve
portions of the material evidence likely to contain biological
evidence related to the offense, in a quantity sufficient to
permit future DNA testing before returning or disposing of that
physical evidence.
(C)(1) No person shall destroy biological evidence in
violation of any provision of this section.
(2) Whoever violates division (C)(1) of this section is
guilty of a misdemeanor of the first degree.
(D)(1) The preservation of biological evidence task force
established within the bureau of criminal identification and
investigation under section 109.561 of the Revised Code shall
establish a system regarding the proper preservation of biological
evidence in this state. In establishing the system, the task force
shall do all of the following:
(a) Devise standards regarding the proper collection,
retention, and cataloguing of biological evidence for ongoing
investigations and prosecutions;
(b) Recommend practices, protocols, models, and resources for
the cataloguing and accessibility of preserved biological evidence
already in the possession of governmental evidence-retention
entities.
(2) In consultation with the preservation of biological
evidence task force described in division (D)(1) of this section,
the division of criminal justice services of the department of
public safety shall administer and conduct training programs for
law enforcement officers and other relevant employees who are
charged with preserving and cataloguing biological evidence
regarding the methods and procedures referenced in this section.
Sec. 2933.83. (A) As used in this section:
(1) "Administrator" means the person conducting a photo
lineup or live lineup.
(2) "Blind administrator" means the administrator does not
know the
identity of the suspect. "Blind administrator" includes
an administrator who conducts a photo lineup through the use of a
folder system or a substantially similar system.
(3) "Blinded administrator" means the administrator may know
who the
suspect is, but does not know which lineup member is
being viewed
by the eyewitness.
(4) "Eyewitness" means a person who observes another person
at or near the scene of an offense.
(5) "Filler" means either a person or a photograph of a
person who is not suspected of an offense and is included in an
identification procedure.
(6) "Folder system" means a system for conducting a photo
lineup that satisfies all of the following:
(a) The investigating officer uses one "suspect photograph"
that resembles the description of the suspected perpetrator of the
offense provided by the witness, five "filler photographs" of
persons not suspected of the offense that match the description of
the suspected perpetrator but do not cause the suspect photograph
to unduly stand out, four "blank photographs" that contain no
images of any person, and ten empty folders.
(b) The investigating officer places one "filler photograph"
into one of the empty folders and numbers it as folder 1.
(c) The administrator places the "suspect photograph" and the
other four "filler photographs" into five other empty folders,
shuffles the five folders so that the administrator is unaware of
which folder contains the "suspect photograph," and numbers the
five shuffled folders as folders 2 through 6.
(d) The administrator places the four "blank photographs" in
the four remaining empty folders and numbers these folders as
folders 7 through 10, and these folders serve as "dummy folders."
(e) The administrator provides instructions to the witness as
to the lineup procedure and informs the witness that a photograph
of the alleged perpetrator of the offense may or may not be
included in the photographs the witness is about to see and that
the administrator does not know which, if any, of the folders
contains the photograph of the alleged perpetrator.
(f) The administrator hands each of the ten folders to the
witness individually without looking at the photograph in the
folder. Each time the witness has viewed a folder, the witness
indicates whether the photograph is of the person the witness saw,
indicates the degree of the witness' confidence in this
identification, and returns the folder and the photograph it
contains to the administrator. The witness may request to view
each of the folders a second time, and, if the witness so
requests, the administrator follows the procedures specified in
this division for the second viewing, handing them to the witness
in the same order as during the first viewing. The witness is not
permitted to have more than two viewings of the folders. The
administrator preserves the order of the folders and the
photographs they contain in a facedown position in order to
document the steps specified in division (A)(6)(g) of this
section.
(g) The administrator documents and records the results of
the procedure described in divisions (A)(6)(a) to (f) of this
section. The documentation and record includes the date, time, and
location of the lineup procedure; the name of the administrator;
the names of all of the individuals present during the lineup; the
number of photographs shown to the witness; copies of each
photograph shown to the witness; the order in which the folders
were presented to the witness; the source of each photograph that
was used in the procedure; a statement of the witness' confidence
in the witness' own words as to the certainty of the witness'
identification of the photographs as being of the person the
witness saw that is taken immediately upon the reaction of the
witness to viewing the photograph; and any additional information
the administrator considers pertinent to the lineup procedure.
(7) "Live lineup" means an identification procedure in which
a group of persons, including the suspected perpetrator of an
offense and other persons not suspected of the offense, is
displayed to an eyewitness for the purpose of determining whether
the eyewitness identifies the suspect as the perpetrator of the
offense.
(8) "Photo lineup" means an identification procedure in which
an array of photographs, including a photograph of the suspected
perpetrator of an offense and additional photographs of other
persons not suspected of the offense, is displayed to an
eyewitness for the purpose of determining whether the eyewitness
identifies the suspect as the perpetrator of the offense.
(9) "Perpetrator" means the person who committed the offense.
(10) "Suspect" means the person believed by law enforcement
to
be the possible perpetrator of the offense.
(B) Prior to conducting any live lineup or photo lineup on or
after the effective date of this section, any law enforcement
agency or criminal justice entity in this state that conducts live
lineups or photo lineups shall adopt specific procedures for
conducting the lineups. The procedures, at a minimum, shall impose
the following requirements:
(1) Unless impracticable, a blind or blinded administrator
shall conduct the live lineup or photo lineup.
(2) When it is impracticable for a blind administrator to
conduct the live lineup or photo lineup, the administrator shall
state in writing the reason for that impracticability.
(3) When it is impracticable for either a blind or blinded
administrator to conduct the live lineup or photo lineup, the
administrator shall state in writing the reason for that
impracticability.
(4) Unless impracticable, a video record of the live lineup
or photo lineup shall be made that includes all of the following
information:
(a) All identification and nonidentification results obtained
during the lineup, signed by the eyewitnesses, including the
eyewitnesses' confidence statements;
(b) The names of all persons present at the lineup;
(c) The date and time of the lineup;
(d) Any eyewitness identification of one or more fillers in
the lineup;
(e) The names of the lineup members and other relevant
identifying information, and the sources of all photographs or
persons used in the lineup.
(5) If a video record of the live lineup or photo lineup is
impracticable, the administrator conducting the lineup shall
document the reason for that impracticability, and, unless
impracticable, an audio record of the live lineup or photo lineup
shall be made. The audio record shall include all of the
information specified in divisions (B)(4)(a) to (e) of this
section, and it shall be supplemented by all of the photographs
used in a photo lineup or photographs of all of the individuals
used in a live lineup, whichever is applicable.
(6) If both a video and audio record of the live lineup or
photo lineup are impracticable, the administrator conducting the
lineup shall document in writing the reason for that
impracticability, and a written record of the lineup shall be made
that includes all of the information specified in divisions
(B)(4)(a) to (e) of this section and that is supplemented by all
of the photographs used in a photo lineup or photographs of all of
the individuals used in a live lineup, whichever is applicable.
(C) For any photo lineup or live lineup that is administered
on or after the effective date of this section, all of the
following apply:
(1) Evidence of a failure to comply with any of the
provisions of this section or with any procedure for conducting
lineups that has been adopted by a law enforcement agency or
criminal justice agency pursuant to division (B) of this section
and that conforms to any provision of divisions (B)(1) to (6) of
this section shall be considered by trial courts in adjudicating
motions to suppress eyewitness identification resulting from or
related to the lineup.
(2) Evidence of a failure to comply with any of the
provisions of this section or with any procedure for conducting
lineups that has been adopted by a law enforcement agency or
criminal justice agency pursuant to division (B) of this section
and that conforms to any provision of divisions (B)(1) to (6) of
this section shall be admissible in support of any claim of
eyewitness misidentification resulting from or related to the
lineup as long as that evidence otherwise is admissible.
(3) When evidence of a failure to comply with any of the
provisions of this section, or with any procedure for conducting
lineups that has been adopted by a law enforcement agency or
criminal justice agency pursuant to division (B) of this section
and that conforms to any provision of divisions (B)(1) to (6) of
this section, is presented at trial, the jury shall be instructed
that it may consider credible evidence of noncompliance in
determining the reliability of any eyewitness identification
resulting from or related to the lineup.
(D)(1) As used in division (D) of this section, "showup"
means an identification procedure in which an eyewitness is
presented with a single suspect for the purpose of determining
whether the eyewitness identifies that individual as the
perpetrator of the offense.
(2) The supreme court may adopt rules prescribing specific
procedures to be followed for the administration by law
enforcement agencies and criminal justice entities in this state
of photo lineups, live lineups, and showups. Any rules adopted by
the supreme court as described in this division shall be
consistent with the requirements of divisions (B) and (C) of this
section but may prescribe procedures for other aspects of the
administration of such lineups and showups as determined
appropriate by the court. If the supreme court adopts rules of the
type described in this division, on and after the date on which
the rules take effect, law enforcement agencies and criminal
justice entities in this state shall comply with the rules in
conducting live lineups, photo lineups, and showups.
(3) The supreme court may adopt rules prescribing a
cautionary jury charge about eyewitness identification procedures
and the accuracy of eyewitness identification. If the supreme
court adopts rules of the type described in this division, on and
after the date on which the rules take effect, the jury charge
shall be used in the courts of this state in the manner specified
by the supreme court in the rules.
Sec. 2953.21. (A)(1)(a) Any person who has been convicted of
a
criminal offense
or adjudicated a delinquent child and who
claims
that there was such a denial
or infringement of the
person's
rights as to render the judgment void or
voidable under
the Ohio
Constitution or the Constitution of the United States,
and any
person who has been convicted of a criminal offense that
is a
felony, and who is an inmate, and offender for whom DNA
testing that
was performed under sections 2953.71 to 2953.81 of
the Revised
Code or under former section 2953.82 of the Revised
Code and
analyzed in the context of and upon consideration of all
available
admissible evidence related to the inmate's person's
case as
described in division (D) of section 2953.74 of the
Revised Code
provided results that establish, by clear and
convincing evidence,
actual innocence of that felony offense or,
if the person was
sentenced to death, establish, by clear and
convincing evidence,
actual innocence of the aggravating
circumstance or circumstances
the person was found
guilty of
committing and that is or are the
basis of that sentence of
death, may file a
petition in the court
that imposed sentence,
stating the grounds
for relief
relied upon,
and asking the court
to vacate or set
aside the judgment or
sentence or to grant other
appropriate
relief. The petitioner may
file a
supporting
affidavit and other
documentary evidence in
support of the claim
for relief.
(b) As used in division (A)(1)(a) of this section, "actual
innocence" means that, had the results of the DNA testing
conducted under sections 2953.71 to 2953.81 of the Revised Code or
under former section 2953.82 of the Revised Code been presented at
trial,
and had those results been analyzed in the context of and
upon
consideration of all available admissible evidence related
to the
inmate's person's case as described in division (D) of
section
2953.74 of the Revised Code, no reasonable factfinder
would have
found the petitioner guilty of the offense of which
the petitioner
was convicted, or, if the person was sentenced to
death, no
reasonable factfinder would have found the petitioner
guilty of
the aggravating circumstance or circumstances the
petitioner was
found guilty of committing and that is or are the
basis of that
sentence of death.
(c) As used in divisions (A)(1)(a) and (b) of this section,
"former section 2953.82 of the Revised Code" means section 2953.82
of the Revised Code as it existed prior to the effective date of
this amendment.
(2) Except as otherwise provided in section 2953.23 of the
Revised Code, a petition under division (A)(1) of this section
shall
be filed no later
than one hundred eighty days after the
date on
which the trial transcript is
filed in the court of
appeals in the
direct appeal of the
judgment of conviction or
adjudication or, if
the direct appeal involves a
sentence of
death, the date on which
the trial transcript is filed in the
supreme court. If no appeal
is taken, except as otherwise provided
in section 2953.23 of the Revised Code, the petition shall be
filed no later
than one hundred
eighty days after the expiration
of the time for filing the
appeal.
(3) In a petition filed under division (A) of this section,
a
person who has been sentenced to death may ask
the court to
render
void or voidable the judgment with respect to
the conviction of
aggravated murder or the specification of an
aggravating
circumstance or the sentence of death.
(4) A petitioner shall state in the original or amended
petition filed under division (A) of this section all grounds for
relief
claimed by the petitioner. Except as provided in section
2953.23 of the
Revised Code, any ground for relief that is not so
stated in the petition is
waived.
(5) If the petitioner in a petition filed under division (A)
of this section
was convicted of or pleaded guilty to a felony,
the petition
may include a claim that the petitioner was denied
the equal protection
of the laws in violation of the Ohio
Constitution or the
United States Constitution because the
sentence
imposed upon the petitioner for the felony was part of a
consistent pattern of
disparity in sentencing by the judge who
imposed the sentence, with regard to
the petitioner's race,
gender, ethnic background, or religion. If the supreme
court
adopts a rule requiring a court of common pleas to
maintain
information with regard to an offender's race, gender,
ethnic
background, or religion, the supporting evidence for the petition
shall
include, but shall not be limited to, a copy of that type of
information
relative to the petitioner's sentence and copies of
that type of information
relative to sentences that the same judge
imposed upon other persons.
(B) The clerk of the court in which the petition is filed
shall docket the petition and bring it promptly to the attention
of the court. The clerk of the court in
which the petition is
filed
immediately shall forward a copy
of
the petition to the
prosecuting attorney of that county.
(C) The court shall consider a petition that is timely filed
under division
(A)(2) of this section even if a direct appeal of
the judgment is pending.
Before granting a hearing on a petition
filed under division (A) of this
section, the court shall
determine whether there are
substantive grounds for relief. In
making such
a determination, the court shall consider, in addition
to the
petition, the supporting affidavits, and the documentary
evidence, all the
files and records
pertaining to the proceedings
against the petitioner, including,
but not limited to, the
indictment, the court's journal entries,
the journalized records
of the clerk of the court, and the court
reporter's transcript.
The court reporter's transcript, if
ordered and certified by the
court, shall be taxed as court
costs. If the court dismisses the
petition, it shall make and
file findings of fact and conclusions
of law with respect to such
dismissal.
(D) Within ten days after the docketing of the petition,
or
within any further time that the court may fix for good cause
shown, the
prosecuting attorney shall respond by answer or
motion.
Within twenty days from the date the issues are raised,
either
party may move for summary judgment. The right to summary
judgment
shall appear on the face of the record.
(E) Unless the petition and the files and records of the
case
show the petitioner is not entitled to relief, the court
shall
proceed to a prompt hearing on the issues even if a direct
appeal
of the case is pending. If the
court notifies the parties
that it
has found grounds for
granting relief, either party may
request an
appellate court in which a direct
appeal of the
judgment is
pending to remand the
pending case to the court.
(F) At any time before the answer or motion is filed, the
petitioner may amend the petition with or without leave or
prejudice to the proceedings. The petitioner may amend the
petition with leave of court at any time thereafter.
(G) If the court does not find grounds for granting relief,
it shall make and
file findings of fact and conclusions of law and
shall enter judgment denying
relief on the petition. If no direct
appeal of the case is pending and the
court finds grounds for
relief or if a pending direct appeal of the case has
been remanded
to the court pursuant to a request made pursuant to division (E)
of this section and the court finds grounds for granting relief,
it shall make
and file findings of fact and conclusions of law
and
shall enter a judgment that vacates and sets aside the judgment in
question, and, in the case of a petitioner who is a prisoner in
custody, shall discharge or resentence the petitioner or grant
a
new trial as the court determines appropriate. The court also may
make
supplementary orders to the
relief granted, concerning such
matters as rearraignment,
retrial, custody, and bail. If the
trial
court's order
granting the petition is reversed on appeal
and if
the direct appeal of the
case has been remanded from an
appellate
court pursuant to a request under
division (E) of this
section,
the appellate court reversing the order granting
the
petition
shall
notify the appellate court in which the direct
appeal of the
case was pending at the time of the remand of the
reversal and
remand of the trial court's order. Upon the reversal
and remand
of
the trial court's order granting the petition,
regardless of
whether notice is sent or received, the direct
appeal of the
case
that was remanded is reinstated.
(H) Upon the filing of a petition pursuant to division (A)
of
this section
by a person sentenced to death, only the supreme
court may stay execution
of the
sentence of death.
(I)(1) If a person
sentenced to death intends to file a
petition under this section, the court shall
appoint counsel to
represent the
person upon a finding that the
person is indigent
and that the person either
accepts the
appointment of counsel or
is unable to make a competent decision
whether to accept or reject
the appointment of counsel. The court
may decline
to appoint
counsel for the person only upon a finding,
after a hearing if
necessary, that the person rejects the
appointment of counsel and
understands
the legal consequences of
that decision or upon a
finding that the person is
not indigent.
(2) The court shall not appoint as counsel under division
(I)(1) of this section an attorney who
represented the petitioner
at trial in the case to which the petition relates
unless the
person and the attorney expressly request the appointment. The
court shall appoint as counsel under division
(I)(1) of this
section only an attorney who is
certified under Rule
20 of the
Rules of
Superintendence for
the Courts of
Ohio to
represent
indigent defendants charged with or convicted of an
offense for
which the death penalty can be or has been imposed.
The
ineffectiveness or incompetence of counsel during proceedings
under this
section does not constitute grounds for relief in a
proceeding under this
section, in an appeal of any action under
this section, or in an application
to reopen a direct appeal.
(3) Division (I) of this section does not preclude attorneys
who represent
the state of Ohio from invoking the provisions of 28
U.S.C. 154
with respect to capital cases that were pending in
federal habeas corpus
proceedings prior to July 1, 1996, insofar
as the
petitioners in those cases were
represented in proceedings
under this section
by one or more
counsel appointed by the court
under this section or section
120.06, 120.16, 120.26, or 120.33 of
the Revised Code and
those
appointed counsel meet the requirements
of division (I)(2) of
this
section.
(J) Subject to the appeal of a sentence for a felony that is
authorized by
section 2953.08 of the Revised Code, the remedy set
forth in this section is
the exclusive remedy by which a person
may bring a collateral challenge to the
validity of a conviction
or sentence in a criminal case or to the validity of
an
adjudication of a child as a delinquent child for the commission
of an act
that would be a criminal offense if committed by an
adult or the validity of a
related order of disposition.
Sec. 2953.23. (A) Whether a hearing is or is not held on a
petition filed
pursuant to section 2953.21 of the Revised Code, a
court may not entertain a
petition filed after the expiration of
the period prescribed in division (A)
of that section or a second
petition or successive
petitions for similar
relief on behalf of a
petitioner unless
division (A)(1) or (2) of this section
applies:
(1) Both
of the following apply:
(a)
Either the petitioner shows that the petitioner was
unavoidably
prevented from discovery of the facts upon which the
petitioner
must rely to present the claim for relief, or,
subsequent to the period prescribed in
division
(A)(2)
of section
2953.21 of the Revised Code or to the
filing of an
earlier
petition, the United States Supreme Court
recognized a new
federal
or state right that applies
retroactively
to persons in
the
petitioner's situation, and the petition
asserts
a claim based
on
that right.
(b) The petitioner shows by clear and convincing evidence
that, but for constitutional error at trial, no reasonable
factfinder would have found the petitioner guilty of the offense
of which the
petitioner was convicted or, if the claim challenges
a sentence of death that,
but for constitutional error at the
sentencing
hearing, no reasonable factfinder would have found the
petitioner eligible for
the death sentence.
(2) The petitioner was convicted of a felony, the petitioner
is an inmate offender for whom DNA testing was
performed under
sections
2953.71 to 2953.81 of the Revised Code or under former
section
2953.82 of the Revised Code and analyzed in the context
of and
upon consideration of all available admissible evidence
related to
the inmate's case as described in division (D) of
section 2953.74
of the Revised Code,
and the results of the DNA
testing establish,
by clear and convincing evidence, actual
innocence of
that felony
offense or, if the person was sentenced
to death, establish, by
clear and convincing evidence, actual
innocence of the
aggravating
circumstance or circumstances the
person was found guilty of
committing
and that is or are the
basis of that sentence of death.
As used in this division, "actual innocence" has the same
meaning as in division (A)(1)(b) of section 2953.21 of the Revised
Code, and "former section 2953.82 of the Revised Code" has the
same meaning as in division (A)(1)(c) of section 2953.21 of the
Revised Code.
(B) An order awarding or denying relief sought in a petition
filed pursuant to section 2953.21 of the Revised Code is a final
judgment and
may be appealed pursuant to Chapter 2953. of the
Revised Code.
Sec. 2953.71. As used in sections 2953.71 to 2953.83 of the
Revised Code:
(A) "Application" or "application for DNA testing" means
a
request through postconviction relief for the state
to
do DNA
testing on biological material from whichever of the following is
applicable:
(1) The case
in which the inmate offender
was convicted of
the offense for which the inmate is an eligible
inmate offender
and is requesting the DNA testing under
sections 2953.71 to
2953.81 of the Revised Code;
(2) The case in which the inmate pleaded guilty or
no
contest to the offense for which the inmate is
requesting the DNA
testing under section 2953.82 of the Revised
Code.
(B) "Biological material" means any product of a human body
containing DNA.
(C) "Chain of custody" means a record or other evidence that
tracks a subject
sample of biological material from the time the
biological
material was first obtained until the time it currently
exists in
its place of storage and, in relation to a DNA sample, a
record or other evidence
that tracks the DNA sample from the time
it was first obtained
until it currently exists in its place of
storage. For purposes
of this division, examples of when
biological material or a DNA
sample is first
obtained include, but
are not limited to,
obtaining the material or sample
at the scene
of a crime, from a
victim, from an inmate offender, or in any
other manner or time as is
appropriate in the facts and
circumstances present.
(D) "Custodial agency" means the group or entity that has
the
responsibility to maintain biological material in question.
(E) "Custodian" means the person who is the primary
representative of a custodial agency.
(F) "Eligible inmate offender" means an inmate offender who
is
eligible under
division (C) of section 2953.72 of the Revised
Code
to request DNA
testing to be conducted under sections 2953.71
to
2953.81 of the
Revised Code.
(G) "Exclusion" or "exclusion result" means a result of DNA
testing that
scientifically precludes or forecloses the subject
inmate offender
as a contributor of biological material recovered
from the
crime
scene or victim in question, in relation to the
offense for
which the inmate offender is an eligible inmate
offender and for which
the sentence
of death
or prison term was
imposed upon the
inmate
or, regarding a request for DNA
testing
made under section
2953.82 of the Revised Code, in
relation to
the offense for which
the inmate made the
request and for which
the sentence of death
or prison term was
imposed upon the inmate
offender.
(H) "Extracting personnel" means medically approved
personnel
who are employed to physically obtain an inmate offender's DNA
specimen for purposes of DNA testing under sections 2953.71 to
2953.81 or section 2953.82 of the Revised Code.
(I) "Inclusion" or "inclusion result" means a result of DNA
testing that
scientifically cannot exclude, or that holds
accountable, the
subject inmate offender as a contributor of
biological
material
recovered from the crime scene or victim in
question, in
relation
to the offense for which the inmate offender
is an eligible inmate offender
and for which the sentence of
death
or prison term was imposed
upon the inmate or, regarding
a
request for DNA testing made under section 2953.82 of the
Revised
Code, in relation to the offense for which the inmate made the
request and for which the sentence of death or
prison term was
imposed upon the inmate offender.
(J) "Inconclusive" or "inconclusive result" means a result
of
DNA testing that is
rendered when a scientifically appropriate
and
definitive DNA
analysis or result, or both, cannot be
determined.
(K) "Inmate Offender" means an inmate in a prison a criminal
offender who was sentenced
by a court, or by a jury and a court,
of this state.
(L) "Outcome determinative" means that had the results of
DNA
testing of the subject inmate offender been presented at the trial
of the subject inmate offender requesting DNA testing and been
found relevant and admissible with respect to the felony
offense
for which the inmate offender is an eligible inmate offender and
is
requesting the DNA testing or for which the inmate is
requesting the DNA testing under section 2953.82 of the Revised
Code, and had those results been analyzed in the context of and
upon consideration of all available admissible evidence related to
the inmate's offender's case as described in division (D) of
section 2953.74 of the Revised Code, there is a strong probability
that no reasonable factfinder would have
found the inmate offender
guilty of that offense or, if the inmate offender was
sentenced to
death relative to that offense, would have found the
inmate
offender guilty of the aggravating circumstance or circumstances
the inmate offender was
found
guilty of committing and that is or
are the basis of that sentence
of
death.
(M) "Parent sample" means the biological material first
obtained from a crime scene or a victim of an offense for which an
inmate offender is an eligible inmate or for which the inmate is
requesting the DNA testing under section
2953.82 of the Revised
Code offender, and from which a sample
will be
presently taken to
do a DNA comparison to the DNA of the
subject
inmate offender
under sections 2953.71 to 2953.81 or section
2953.82 of the
Revised Code.
(N) "Prison" has and "community control sanction" have the
same meaning meanings as in section 2929.01 of
the Revised Code.
(O) "Prosecuting attorney" means the prosecuting attorney
who, or whose office, prosecuted the case in which the subject
inmate offender was convicted of the offense
for which the inmate
offender is an
eligible inmate offender and is requesting the DNA
testing or for which the inmate is requesting the DNA
testing
under section 2953.82 of the Revised Code.
(P) "Prosecuting authority" means the prosecuting attorney
or
the attorney general.
(Q) "Reasonable diligence" means a degree of diligence that
is comparable to the diligence a reasonable person would employ in
searching for information regarding an important matter in the
person's own life.
(R) "Testing authority" means a laboratory at which DNA
testing will be conducted under sections 2953.71 to 2953.81 or
section 2953.82 of the
Revised Code.
(S) "Parole" and "post-release control" have the same
meanings as in section 2967.01 of the Revised Code.
(T) "Sexually oriented offense" and "child-victim oriented
offense" have the same meanings as in section 2950.01 of the
Revised Code.
Sec. 2953.72. (A) Any eligible inmate offender who wishes to
request
DNA testing under sections 2953.71 to 2953.81 of the
Revised Code
shall
submit an application for the testing to the
court of common
pleas specified in section 2953.73 of the Revised
Code, on a form
prescribed
by the
attorney general for this
purpose. The eligible
inmate offender
shall submit the application
in
accordance with the procedures set forth in section 2953.73 of
the Revised Code. The eligible inmate offender shall specify on
the
application the offense or offenses for which the inmate
offender is an
eligible inmate offender and is requesting the DNA
testing. Along with the
application, the
eligible inmate offender
shall submit an
acknowledgment
that is
on a form prescribed by the
attorney
general for this
purpose and
that is signed by the inmate
offender.
The acknowledgment
shall set forth
all of the following:
(1) That sections 2953.71 to 2953.81 of the Revised Code
contemplate applications for DNA testing of an eligible
inmates
offender
at a
stage of a prosecution or case after the inmate
offender has
been
sentenced to a prison term or a sentence of
death, that any
exclusion or inclusion
result of DNA testing
rendered pursuant to
those sections may be used by a
party in any
proceeding
as described in section 2953.81 of the Revised Code,
and that all
requests for any DNA
testing made at trial will
continue to be
handled by the prosecuting
attorney in the case;
(2) That the process of conducting postconviction DNA
testing
for an eligible inmate offender under sections 2953.71 to
2953.81
of
the Revised Code begins when the inmate offender submits
an
application
under section 2953.73 of the Revised Code and the
acknowledgment
described in this section;
(3) That the eligible inmate offender must submit the
application
and
acknowledgment to the court of common pleas that
heard the
case in
which the inmate offender was convicted of the
offense for which
the inmate offender
is an eligible offender and
is requesting the DNA
testing;
(4) That the state has established a set of criteria set
forth in section 2953.74 of the Revised Code by which eligible
inmate offender applications for DNA testing will be screened and
that
a
judge of a court of common pleas upon receipt of a
properly
filed
application and accompanying acknowledgment will
apply those
criteria to determine
whether to accept
or reject the application;
(5) That the results of DNA testing conducted under sections
2953.71 to 2953.81 of the Revised Code will be provided as
described in section 2953.81 of the Revised Code to all parties in
the postconviction proceedings and will be reported to various
courts;
(6) That, if DNA testing is conducted with respect to an
inmate offender under sections 2953.71 to 2953.81 of the Revised
Code, the
state will not offer the inmate offender a retest if an
inclusion
result is
achieved relative to the testing and that, if
the state
were to
offer a retest after an inclusion result, the
policy would
create
an atmosphere in which endless testing could
occur and in
which
postconviction proceedings could be stalled for
many years;
(7) That, if the court rejects an eligible
inmate's
offender's
application for DNA testing because the
inmate offender
does not
satisfy
the acceptance criteria described in
division
(A)(4) of
this
section, the court will not accept or
consider
subsequent
applications;
(8) That the acknowledgment memorializes the provisions of
sections 2953.71 to 2953.81 of the Revised Code with respect to
the application of postconviction DNA testing to inmates
offenders, that
those
provisions do not give any inmate offender
any additional
constitutional
right that the inmate offender did
not already have, that the court has no duty or
obligation to
provide postconviction DNA testing to inmates offenders,
that the
court of
common pleas has the
sole
discretion subject to an appeal
as described in this division to determine whether an
inmate
offender is an eligible inmate offender
and whether an
eligible
inmate's offender's
application for DNA testing
satisfies
the
acceptance criteria
described in division (A)(4) of
this
section
and whether the
application should be accepted or
rejected, that
if the court of common
pleas rejects an eligible inmate's
offender's application, the inmate offender may seek leave of the
supreme court to appeal the rejection to that court if the inmate
offender was sentenced to death for the offense for which the
inmate offender is requesting the DNA testing and, if the inmate
offender was not sentenced to death for that offense, may appeal
the rejection to the court of appeals, and that no
determination
otherwise made
by
the court of common pleas in the
exercise
of its
discretion
regarding the
eligibility of an
inmate offender or
regarding postconviction DNA testing
under those provisions
is
reviewable by or appealable to any
court;
(9) That the manner in which sections 2953.71 to 2953.81 of
the Revised Code with respect to the offering of postconviction
DNA testing to inmates offenders are carried out does not confer
any
constitutional right upon any inmate offender, that the state
has
established guidelines and procedures relative to those
provisions
to ensure that they are carried out with both justice
and
efficiency in mind, and that an inmate offender who
participates in
any
phase of the mechanism contained in those
provisions,
including,
but not limited to, applying for DNA
testing and being
rejected,
having an application for DNA testing
accepted and not
receiving
the test, or having DNA testing
conducted and receiving
unfavorable results, does not gain as a
result of the
participation any constitutional right to challenge,
or, except as provided in division (A)(8) of this section, any
right
to any review or appeal of, the manner in
which those
provisions
are carried out;
(10) That the most basic aspect of sections 2953.71 to
2953.81 of the Revised Code is that, in order for DNA testing to
occur, there must be an inmate offender sample against which other
evidence
may be compared, that, if an eligible inmate's offender's
application
is
accepted but the inmate offender subsequently
refuses to
submit
to the
collection of the sample of biological
material from
the
inmate offender
or hinders the state from
obtaining a sample of
biological
material from the inmate
offender, the goal of those
provisions
will be
frustrated, and
that an inmate's offender's refusal
or
hindrance shall cause the
court to rescind its prior acceptance of the application for
DNA
testing for
the inmate offender and deny the application;
(11) That, if the inmate is an inmate who
pleaded guilty or
no contest to a felony offense and who is using
the application
and acknowledgment to request DNA testing under
section 2953.82
of the Revised Code, all references in the
acknowledgment to an
"eligible inmate" are considered to
be references to, and apply
to, the inmate and all
references in the acknowledgment to
"sections 2953.71 to 2953.81
of the Revised Code" are considered
to be references to "section
2953.82 of the Revised Code."
(B) The attorney general shall prescribe a form to be used
to
make an application for DNA testing under division (A) of this
section and section 2953.73 of the Revised Code and a form to be
used to provide the acknowledgment described in division (A) of
this section. The forms shall include all information described in
division (A) of this section, spaces for an inmate offender to
insert all
information necessary to complete the forms, including,
but not
limited to, specifying the offense or offenses for which
the
inmate offender is an eligible inmate offender and is
requesting the DNA testing or for which the inmate is
requesting
the DNA testing under section 2953.82 of the Revised
Code,
and
any other information or material the attorney general
determines
is necessary or relevant. The forms also shall be used
to make an
application requesting DNA testing under section
2953.82 of the
Revised Code, and the attorney general shall ensure
that they are
sufficient for that type of use, and that they
include all
information and spaces necessary for that type of use.
The
attorney general shall
distribute copies of the
prescribed
forms
to the department of
rehabilitation and
correction, the
department shall ensure that
each
prison in which inmates
offenders are housed has a
supply of
copies of
the forms, and the
department shall ensure
that copies
of the
forms are provided free
of charge to any
inmate offender who
requests
them.
(C)(1) An inmate offender is eligible to request DNA testing
to be
conducted under sections 2953.71 to 2953.81 of the Revised
Code
only if all of the following apply:
(a) The offense for which the inmate offender claims to be an
eligible inmate offender is a felony, and the inmate offender was
convicted by a
judge or jury of that offense.
(b) One of the following applies:
(i) The inmate offender was sentenced to a prison term or
sentence
of death for the felony described in division (C)(1)(a)
of this
section, and the offender is in prison
serving that prison
term or under that sentence of death, has been paroled or is on
probation regarding that felony, is under post-release control
regarding that felony, or has been released from that prison term
and is under a community control sanction regarding that felony.
(ii) The offender was not sentenced to a prison term or
sentence of death for the felony described in division (C)(1)(a)
of this section, but was sentenced to a community control sanction
for that felony and is under that community control sanction.
(iii) The felony described in division (C)(1)(a) of this
section was a sexually oriented offense or child-victim oriented
offense, and the offender has a duty to comply with sections
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code
relative to that felony.
(c) On the date on which the application is filed, the inmate
has
at least one year remaining on the prison term described in
division (C)(1)(b) of this section, or the inmate is in prison
under a sentence of death as described in that division.
(2) An inmate offender is not an eligible inmate offender
under division
(C)(1) of this section regarding any offense to
which the inmate offender
pleaded guilty or no contest.
(3) An offender is not an eligible offender under division
(C)(1) of this section regarding any offense if the offender dies
prior to submitting an application for DNA testing related to that
offense under section 2953.73 of the Revised Code.
Sec. 2953.73. (A) An eligible inmate offender who wishes to
request DNA testing to be conducted under sections 2953.71 to
2953.81 of the Revised Code shall submit an application for
DNA
testing on a form prescribed by the attorney general for this
purpose and shall submit the form to the court of common pleas
that sentenced the inmate offender for the
offense for which the
inmate offender is an eligible inmate offender and is
requesting
DNA testing.
(B) If an eligible inmate offender submits an application for
DNA
testing under division (A) of this section, upon the
submission of
the application, all of the following apply:
(1) The eligible inmate offender shall serve a copy of the
application on the prosecuting attorney and the
attorney general.
(2) The application shall be assigned to the judge of that
court of common pleas who was the trial judge in the case in which
the eligible inmate offender was convicted of the offense for
which the inmate offender is requesting DNA testing, or, if that
judge no longer is a judge of that court, it shall be assigned
according to court rules. The judge to whom the application is
assigned shall decide the application. The application shall
become part of the file in the case.
(C) If an eligible inmate offender submits an application for
DNA
testing under division (A) of this section, regardless of
whether the inmate offender has commenced any federal habeas
corpus proceeding relative to the
case in which the inmate
offender was convicted of the offense for which
the inmate
offender is an eligible inmate offender and is requesting DNA
testing,
any response to the application by the prosecuting
attorney or the attorney general shall be filed not later than
forty-five days after the date on which the eligible inmate
offender submits the application. The prosecuting attorney or
the
attorney general, or both, may, but are not required to, file a
response
to the application. If the prosecuting attorney or the
attorney general files a response under this division, the
prosecuting attorney or attorney general, whoever filed the
response, shall serve a copy of the response on the eligible
inmate offender.
(D) If an eligible inmate offender submits an application for
DNA
testing under division (A) of this section, the court
shall
make
the determination as to whether the
application should be
accepted
or rejected. The court shall expedite its review of
the
application. The
court shall make the determination in accordance
with the
criteria
and procedures set forth in sections 2953.74 to
2953.81
of the
Revised Code and, in making the determination,
shall
consider the
application, the supporting affidavits, and the
documentary evidence and, in addition to those materials, shall
consider all the files and records pertaining to the proceedings
against the applicant, including, but not limited to, the
indictment, the court's journal entries, the journalized records
of the clerk of the court, and the court reporter's transcript and
all responses to the application
filed under
division (C) of this
section by a prosecuting attorney
or the
attorney general, unless
the application and the files and records show the applicant is
not entitled to DNA testing, in which case the application may be
denied. The court is not required to conduct an evidentiary
hearing in conducting its review of, and in making its
determination as to whether to accept or reject, the application.
Upon making its determination, the
court shall
enter a judgment
and order that either accepts or
rejects the application and that
includes
within the judgment and order the
reasons for the
acceptance or rejection as applied to the criteria and procedures
set forth in sections 2953.71 to 2953.81 of the Revised Code. The
court shall send a copy of the
judgment and order to the eligible
inmate offender who filed it, the prosecuting
attorney, and the
attorney
general.
(E) A judgment and order of a court entered under
division
(D) of this
section is appealable only as provided in this
division. If an eligible inmate offender submits an application
for DNA testing under section 2953.73 of the Revised Code and the
court of common pleas rejects the application under division (D)
of this section, one of the following applies:
(1) If the inmate offender was sentenced to death for the
offense for which the inmate offender claims to be an eligible
inmate offender and is requesting DNA testing, the inmate offender
may seek leave of the supreme court to appeal the rejection to the
supreme court. Courts of appeals do not have jurisdiction to
review any rejection if the inmate offender was sentenced to death
for the offense for which the inmate offender claims to be an
eligible inmate offender and is requesting DNA testing.
(2) If the inmate offender was not sentenced to death for the
offense for which the inmate offender claims to be an eligible
inmate offender and is requesting DNA testing, the rejection is a
final appealable order, and the inmate offender may appeal it to
the court of appeals of the district in which is located that
court of common pleas.
(F) Notwithstanding any provision of law regarding fees and
costs, no filing fee shall be required of, and no court costs
shall be assessed against, an eligible offender who is indigent
and who submits an application under this section.
(G) If a court rejects an eligible inmate's offender's
application for DNA testing under division (D) of this section,
unless the rejection is overturned on appeal, no court shall
require the state to administer a DNA test under sections 2953.71
to 2953.81 of the Revised Code on the eligible inmate offender.
Sec. 2953.74. (A) If an eligible inmate offender submits an
application
for
DNA
testing under section 2953.73 of the Revised
Code and a prior
definitive DNA test has been conducted
regarding
the same
biological evidence that the inmate offender seeks to
have tested,
the
court shall reject the inmate's offender's
application. If an
eligible
inmate offender files an application
for DNA
testing and a prior
inconclusive DNA test has been
conducted
regarding the same
biological evidence that the
inmate
offender seeks to
have tested, the
court shall review
the
application
and has the
discretion, on a
case-by-case basis,
to
either accept
or reject
the application.
The court may direct a
testing authority to provide the court with information that the
court may use in determining
whether prior DNA test
results
were
definitive or inconclusive and
whether to accept or
reject an
application in relation to which
there were prior
inconclusive DNA
test results.
(B) If an eligible inmate offender submits an application
for
DNA
testing under section 2953.73 of the Revised Code, the court
may
accept the
application only
if one of the following
applies:
(1) The inmate offender did not have a DNA test taken at the
trial
stage in the case in which the inmate offender was convicted
of the offense
for which the inmate offender is an eligible inmate
offender and is requesting the
DNA testing regarding the same
biological evidence
that the
inmate
offender seeks to have tested,
the inmate offender shows that DNA
exclusion when analyzed in the
context of and upon consideration of all available admissible
evidence related to the subject inmate's offender's case as
described in division (D) of this section
would
have been
outcome
determinative at that trial stage
in that
case,
and,
at the
time
of the trial stage in that case, DNA
testing
was
not generally
accepted, the results of DNA testing
were not
generally admissible
in evidence, or DNA testing was not
yet
available.
(2) The inmate offender had a DNA test taken at the trial
stage in
the case in which the inmate offender was convicted of
the offense for
which the inmate offender is an eligible inmate
offender and is requesting the DNA
testing regarding the same
biological
evidence that the inmate
offender seeks to have
tested, the test
was not a prior definitive DNA test
that is
subject to division (A) of
this section, and the inmate
offender
shows that
DNA exclusion when analyzed in the context of and upon
consideration of all available admissible evidence related to the
subject inmate's offender's case as described in division (D) of
this section
would have been outcome determinative at
the trial
stage in that
case.
(C) If an eligible inmate offender submits an application
for
DNA
testing under section 2953.73 of the Revised Code, the
court
may
accept the
application only if all of the
following
apply:
(1) The court determines pursuant to section
2953.75 of the
Revised Code that biological material was collected
from the crime
scene or the victim of the offense for which the
inmate offender
is an
eligible inmate offender and is requesting the DNA testing
and
that the
parent sample of that
biological
material against
which a
sample
from the inmate
offender can be compared
still
exists at that point
in
time.
(2) The testing authority determines all of the following
pursuant to section 2953.76 of the Revised Code regarding the
parent sample of the biological material described in division
(C)(1) of this section:
(a) The parent sample of the biological material so
collected
contains scientifically sufficient
material to extract
a test
sample.
(b) The parent sample of the biological material so
collected
is not so minute or fragile as to
risk destruction of
the parent
sample by the extraction described
in division
(C)(2)(a) of this
section; provided that the court
may determine
in its discretion,
on a case-by-case
basis, that,
even if the
parent
sample of the
biological material
so collected
is so minute
or
fragile as to
risk destruction of the
parent
sample by the
extraction, the
application should not be
rejected
solely on the
basis of that
risk.
(c) The parent sample of the biological material so
collected
has not degraded or been
contaminated to the extent that
it has
become scientifically
unsuitable for testing, and the
parent
sample otherwise has been
preserved, and remains, in a
condition
that is scientifically
suitable
for testing.
(3) The court determines that, at the trial
stage in the
case
in which the inmate offender was convicted of the offense
for
which
the inmate offender is an eligible inmate offender and is
requesting the
DNA
testing, the identity of
the person who
committed the offense
was
an issue.
(4) The court determines that one or more of
the defense
theories asserted by the
inmate offender at the trial
stage in
the
case
described in division (C)(3) of this section or in
a
retrial
of
that case in a court of
this state was of such a nature
that,
if
DNA testing is conducted
and an exclusion result is
obtained,
the
exclusion result will
be outcome determinative.
(5) The court determines that, if DNA testing
is conducted
and an exclusion result is
obtained, the results of
the testing
will be outcome determinative
regarding that
inmate offender.
(6) The court determines pursuant to section
2953.76 of
the
Revised Code from the chain of custody of
the
parent
sample of
the
biological material to be tested and of
any
test
sample
extracted
from the parent sample, and from the
totality of
circumstances
involved, that the parent sample and the
extracted
test sample are
the same sample as collected and that
there is no
reason to
believe that they have been out of state
custody or have
been
tampered with or contaminated since they were
collected.
(D) If an eligible inmate offender submits an application for
DNA testing under section 2953.73 of the Revised Code, the court,
in determining whether the "outcome determinative" criterion
described in divisions (B)(1) and (2) of this section has been
satisfied, shall consider all available admissible evidence
related to the subject inmate's offender's case.
(E) If an eligible inmate offender submits an application for
DNA testing under section 2953.73 of the Revised Code and the
court accepts the application, the eligible inmate offender may
request the court to order, or the court on its own initiative may
order, the bureau of criminal identification and investigation to
compare the results of DNA testing of biological material from an
unidentified person other than the inmate offender that was
obtained from the crime scene or from a victim of the offense for
which the inmate offender has been approved for DNA testing to the
combined DNA index system maintained by the federal bureau of
investigation.
If the bureau, upon comparing the test results to the
combined DNA index system, determines the identity of the person
who is the contributor of the biological material, the bureau
shall provide that information to the court that accepted the
application, the inmate offender, and the prosecuting attorney.
The inmate offender or the state may use the information for any
lawful purpose.
If the bureau, upon comparing the test results to the
combined DNA index system, is unable to determine the identity of
the person who is the contributor of the biological material, the
bureau may compare the test results to other previously obtained
and acceptable DNA test results of any person whose identity is
known other than the eligible inmate offender. If the bureau, upon
comparing the test results to the DNA test results of any person
whose identity is known, determines that the person whose identity
is known is the contributor of the biological material, the bureau
shall provide that information to the court that accepted the
application, the inmate offender, and the prosecuting attorney.
The inmate offender or the state may use the information for any
lawful purpose.
Sec. 2953.75. (A) If an eligible inmate offender submits an
application
for DNA testing under section 2953.73 of the Revised
Code, the
court shall require the prosecuting attorney to use
reasonable diligence to
determine
whether
biological material was
collected from the crime
scene or
victim
of the offense for which
the inmate offender is an eligible inmate
offender and is
requesting the DNA testing against which a sample
from the
inmate
offender can
be compared and whether the parent sample of
that
biological
material still exists at that point in time. In
using
reasonable
diligence to make those determinations, the
prosecuting
attorney
shall rely upon
all relevant sources,
including, but not
limited
to, all of the
following:
(1) All prosecuting authorities in the case
in which the
inmate offender was convicted of the offense for which the inmate
offender is an
eligible inmate offender and is requesting the DNA
testing and in
the
appeals of, and postconviction proceedings
related to,
that
case;
(2) All law enforcement authorities involved in the
investigation of the offense for which the inmate offender is an
eligible
offender and is requesting the DNA testing;
(3) All custodial agencies involved at any time with the
biological material in question;
(4) The custodian of all custodial agencies described in
division (A)(3) of this section;
(5) All crime laboratories involved at any time with the
biological material in question;
(6) All other reasonable sources.
(B) The prosecuting attorney shall prepare a report that
contains the prosecuting attorney's determinations made under
division (A) of this section and shall file a copy of the report
with the court and provide a copy to the eligible inmate offender
and the attorney general.
Sec. 2953.76. If an eligible inmate offender submits an
application
for DNA testing under section 2953.73 of the Revised
Code, the
court shall require the prosecuting attorney to consult
with the
testing authority and to prepare findings
regarding the
quantity
and quality of the parent
sample of the
biological
material
collected from the crime scene
or victim of
the offense
for which the inmate offender is an eligible
inmate offender and
is
requesting the DNA testing and that is to be
tested, and
of the
chain of custody and reliability
regarding that
parent sample, as
follows:
(A) The testing authority shall determine whether there is
a
scientifically sufficient quantity of the parent sample to test
and whether the parent sample is so minute or fragile that there
is a substantial risk that the parent sample could be destroyed in
testing. The testing authority may determine that there is not a
sufficient quantity to test in order to preserve the state's
ability to present in the future the original evidence presented
at trial, if another trial is required. Upon making its
determination under this division, the testing authority shall
prepare a written document
that contains
its
determination and the
reasoning and rationale
for that
determination and shall provide a
copy to the court, the eligible inmate offender, the prosecuting
attorney, and the attorney general. The court may determine in
its
discretion, on a
case-by-case
basis, that, even if the parent
sample of the
biological material
so collected is so minute or
fragile as to
risk destruction of the
parent sample by the
extraction, the
application should not be
rejected solely on the
basis of that
risk.
(B) The testing authority shall determine whether the
parent
sample has degraded or been contaminated to the extent that
it has
become scientifically unsuitable for testing and whether
the
parent sample otherwise has been preserved, and remains, in a
condition that is suitable for testing. Upon making its
determination under this division, the testing authority shall
prepare a written document
that contains
its
determination and the
reasoning and rationale
for that
determination and shall provide a
copy to the court, the eligible inmate offender, the prosecuting
attorney, and the attorney general.
(C) The court shall determine, from the chain of
custody of
the parent sample of the biological
material
to be
tested and of
any test sample extracted from the
parent
sample and
from the
totality of circumstances involved,
whether the parent
sample and
the extracted test sample are the
same sample as
collected and
whether there is any reason to
believe that they
have been out of
state custody or have been
tampered with or
contaminated since
they were collected. Upon
making its
determination under this
division, the
court shall prepare and
retain a written document
that
contains its determination and the
reasoning and rationale
for
that determination.
Sec. 2953.77. (A) If an eligible inmate offender submits an
application for DNA testing under section 2953.73 of the Revised
Code and if the application is accepted and
DNA testing is to be
performed, the court shall require that the chain of custody
remain intact and that all of the
applicable following precautions
are satisfied to
ensure that the parent sample
of the biological
material collected from the crime scene or the
victim of the
offense for which the inmate offender is an eligible inmate
offender and requested the DNA testing, and the
test sample of the
parent
sample that is extracted and actually is
to be tested, are
not
contaminated during transport or the testing
process:
(1) The court shall
require that the chain of custody be
maintained and documented relative to the parent sample
and the
test
sample actually to be tested between the time they
are
removed
from their place of storage or the time of their
extraction to the
time at which the DNA testing will be performed.
(2) The court, the testing authority, and the
law
enforcement
and prosecutorial personnel involved in the
process,
or any
combination of those entities and persons, shall
coordinate
the
transport of the parent sample and
the test sample
actually to
be
tested between their place of
storage and the place
where the
DNA
testing will be performed, and
the court
and testing authority
shall document the
transport
procedures so
used.
(3) The testing authority shall determine and document the
custodian of the parent sample and the test sample actually to be
tested after they are in the possession of the testing authority.
(4) The testing authority shall maintain and preserve the
parent sample and the test sample actually to be tested after they
are in the possession of the testing authority and shall document
the maintenance and preservation procedures used.
(5) After the DNA testing, the court, the
testing
authority,
and the original custodial agency of the parent
sample,
or any
combination of those entities, shall coordinate the
return
of the
remaining parent sample
back to its place of storage
with
the
original custodial agency or
to any other place
determined in
accordance with this division and section 2953.81
of
the Revised
Code. The court shall determine, in consultation with the testing
authority, the custodial agency to
maintain any newly created,
extracted, or collected DNA material
resulting from the testing.
The court and testing
authority shall document the return
procedures for original
materials and for any newly created,
extracted, or collected DNA
material resulting from the testing,
and also the custodial agency
to which those materials should be
taken.
(B) A court or testing authority shall
provide the
documentation required under division (A) of this
section in
writing and shall maintain that documentation.
Sec. 2953.78. (A) If an eligible inmate offender submits an
application for DNA testing under section 2953.73 of the Revised
Code and if the application is accepted and
DNA testing is to be
performed, the court shall select the
testing
authority to
be used
for the testing. A court
shall
not select or
use a testing
authority for DNA
testing
unless the
attorney general
approves or
designates the testing
authority
pursuant to
division (C) of this
section
and unless the
testing authority satisfies
the criteria
set forth in section
2953.80
of the Revised Code.
(B) If a court
selects a testing authority
pursuant to
division (A) of this
section and the eligible inmate
offender for
whom the
test is to be
performed objects to the use of the
selected testing
authority,
the court shall rescind its prior
acceptance of the application for
DNA
testing
for the inmate
offender and deny the application. An objection as
described in
this
division, and
the resulting rescission and denial, do
not
preclude
a court
from accepting in the court's
discretion,
a
subsequent application by the
same eligible inmate
offender
requesting
DNA
testing.
(C) The attorney general shall approve or designate testing
authorities that may be selected and used to conduct DNA
testing,
shall prepare a list of the approved or designated
testing
authorities, and shall provide copies of the list to all
courts of
common pleas. The attorney general shall update the
list
as
appropriate to reflect changes in the approved or
designated
testing authorities and shall provide copies of the
updated list
to all courts of common pleas. The attorney general
shall not
approve or designate a testing authority under this
division
unless the testing authority satisfies the criteria set
forth in
section 2953.80 of the Revised Code. A testing authority that is
equipped to handle advanced DNA testing may be approved or
designated under this division, provided it satisfies the criteria
set forth in that section.
(D) The attorney general's approval or designation of
testing
authorities under division (C) of this section, and the
selection
and use of any approved or designated testing authority,
do not
afford an inmate offender any right to subsequently challenge the
approval, designation, selection, or use, and an inmate offender
may not
appeal to any court the approval, designation, selection,
or use
of a testing authority.
Sec. 2953.79. (A) If an eligible inmate offender submits an
application for DNA testing under section 2953.73 of the Revised
Code and if the application is accepted and
DNA testing is to be
performed, a sample of biological material
shall be obtained from
the inmate offender in accordance with this section,
to be
compared
with
the parent sample of biological material collected
from the crime
scene or the victim of the offense for which the
inmate offender is an
eligible inmate offender and requested the
DNA testing. The
inmate's
offender's filing of the application
constitutes the
inmate's
offender's consent to the
obtaining of
the sample of biological
material from
the inmate offender.
The
testing authority shall
obtain the sample of
biological
material
from the inmate
offender in accordance with medically
accepted
procedures.
(B) If DNA testing is to be performed for an inmate
offender
as
described in division (A) of this section, the court
shall
require the state to coordinate with
the department of
rehabilitation and
correction or the other state agency or entity
of local government with custody of the offender, whichever is
applicable, as to the time and
place at
which the sample of
biological material
will be obtained
from the
inmate offender. The
If the offender is in prison or is in custody in another facility
at the time the DNA testing is to be performed, the sample of
biological material shall be obtained from the inmate offender at
the facility in which the inmate offender is housed, and
the
department of rehabilitation and correction or the other state
agency or entity of local government with custody of the offender,
whichever is applicable, shall make
the inmate offender
available
at the
specified time. The
court shall require the state to
provide
notice to
the inmate offender and to the
inmate's
offender's counsel of the date
on
which, and the time and place at
which, the
sample will be so
obtained.
The court also shall require the state to coordinate with the
testing authority
regarding the obtaining of the sample from the
inmate offender.
(C)(1) If DNA testing is to be performed for an inmate
offender as
described in division (A) of this section, and the
inmate offender refuses
to submit to the collection of the sample
of
biological material
from the inmate offender or hinders the
state
from
obtaining a sample of
biological material from the
inmate offender, the court shall rescind its prior acceptance of
the application for DNA testing
for the inmate offender and deny
the application.
(2) For purposes of division (C)(1) of this section:
(a) An inmate's offender's "refusal to submit to the
collection
of a
sample of biological material from the inmate
offender"
includes, but
is
not limited to, the inmate's offender's
rejection of
the physical manner
in
which a sample of the inmate's
offender's biological material is to be
taken.
(b) An inmate's offender's "hindrance of the state in
obtaining
a
sample of biological material from the inmate
offender" includes,
but is
not limited to, the inmate offender
being physically or
verbally
uncooperative or antagonistic in the
taking of a sample
of the
inmate's offender's biological material.
(D) The extracting personnel shall make the determination
as
to whether an eligible inmate offender for whom DNA testing is
to
be
performed is refusing to submit to the collection of a
sample
of
biological material from the inmate offender or is hindering
the
state
from obtaining a sample of biological material from the
inmate offender at
the time and date of the scheduled collection
of
the
sample. If
the extracting personnel determine that an
inmate offender is
refusing to
submit to the collection of a
sample or is
hindering
the state
from obtaining a sample, the
extracting
personnel shall
document
in writing the conditions that
constitute
the refusal or
hindrance, maintain the documentation,
and notify the court of the inmate's offender's refusal or
hindrance.
Sec. 2953.81. If an eligible offender submits an
application
for DNA testing under section 2953.73 of the Revised
Code and if
DNA testing is performed based
on that application,
upon
completion of the testing, all of the
following apply:
(A) The court or a
designee of the court shall require the
state to
maintain the
results of the testing and to
maintain and
preserve
both the
parent sample of the biological
material used
and the
inmate offender
sample of the biological material
used.
The
testing
authority may
be designated as the person to
maintain
the
results
of the testing
or to maintain and preserve
some or all
of
the
samples, or both.
The results of the testing
remain
state's
evidence. The
samples
shall be preserved during
the
entire period
of time for
which the
inmate offender is imprisoned or confined
relative
to the prison
term or sentence of
death
in question and,
if that
prison term
expires or the inmate
is executed under
that
sentence
of death, is on parole or probation relative to that
sentence, is under post-release control or a community control
sanction relative to that sentence, or has a duty to comply with
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised
Code relative to that sentence. Additionally, if the prison term
or confinement under the sentence in question expires, if the
sentence in question is a sentence of death and the offender is
executed, or if the parole or probation period, the period of
post-release control, the community control sanction, or the duty
to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of
the Revised Code under the sentence in question ends, the samples
shall be preserved for a reasonable period
of time of not less
than
twenty-four
months after the term or confinement expires
or,
the inmate offender is
executed, or the parole or probation
period, the period of post-release control, the community control
sanction, or the duty to comply with sections 2950.04, 2950.041,
2950.05, and 2950.06 of the Revised Code ends, whichever is
applicable. The
court shall determine the
period
of
time
that is
reasonable for purposes of this division,
provided
that
the period
shall not be less than twenty-four months
after
the
term or
confinement expires or, the inmate offender is
executed, or the
parole or probation period, the period of post-release control,
the community control sanction, or the duty to comply with
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised
Code ends, whichever is applicable.
(B) The results of the testing are a public record.
(C) The court or the testing authority shall
provide a copy
of the results of the testing to the prosecuting
attorney, the
attorney general, and the subject inmate offender.
(D) If the postconviction proceeding in question is pending
at that time in a court of this state, the court of common pleas
that decided the DNA application or
the testing authority shall
provide a copy of the results of the
testing to any court of this
state, and, if it is pending in a
federal court, the court of
common pleas that decided the DNA application or the testing
authority
shall provide a copy of the results of the testing to
that federal
court.
(E) The testing authority shall
provide a copy of the
results
of the testing to the court of common pleas that decided
the DNA
application.
(F) The inmate offender or the state may enter the
results of
the
testing into any proceeding.
Sec. 2953.83. In any court proceeding under sections 2953.71
to 2953.82 2953.81 of the Revised Code, the Rules of Criminal
Procedure apply, except to the extent that sections 2953.71 to
2953.82 2953.81 of the Revised Code provide a different procedure
or to the extent that the Rules would by their nature be clearly
inapplicable.
Sec. 2953.84. The provisions of sections 2953.71 to 2953.82
2953.81
of the Revised Code by which an inmate offender may
obtain
postconviction DNA testing are not the exclusive means by
which an
inmate offender may obtain postconviction DNA testing,
and the
provisions of those sections do not limit or affect any
other
means by which an inmate offender may obtain postconviction
DNA
testing.
Section 2. That existing sections 109.573, 2901.07, 2953.21,
2953.23,
2953.71,
2953.72, 2953.73, 2953.74, 2953.75, 2953.76,
2953.77,
2953.78,
2953.79, 2953.81, 2953.83, and 2953.84 and
section
2953.82 of the Revised
Code are
hereby repealed.
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