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H.828

Introduced by   Representatives Kilmartin of Newport City, Koch of Barre Town, Marcotte of Coventry and Pillsbury of Brattleboro

Referred to Committee on

Date:

Subject:  Criminal procedures; first degree aggravated sexual assault; life without parole; innocence protection

Statement of purpose:  This bill proposes to authorize a jury to impose a sentence of life for aggravated sexual assault and life without parole for the new crime of first degree aggravated sexual assault for an aggravated sexual assault committed under certain circumstances, and to establish innocence protection measures to protect against wrongful criminal convictions which would apply to all crimes.  The bill contains the following provisions:

(1)  The bill permits a jury to impose a sentence of life without parole for the newly created crime of first degree aggravated sexual assault.  The offense is defined to include aggravated sexual assault committed under certain heinous circumstances, such as when the victim is a child under 13 years of age.

(2)  The bill requires law enforcement agencies to make video or audio recordings of custodial interrogations of criminal suspects.  A recording is not required if exigent public safety circumstances or any other good cause exists.  If a recording is required and not made, statements made during the interrogation are inadmissible in court proceedings. 

(3)  The bill requires law enforcement agencies to establish rules governing lineups and other eyewitness identification procedures to ensure that a witness will not select the wrong person as the perpetrator of the crime. 

(4)  The bill allows a person convicted of a crime to file a petition requesting forensic DNA testing of any evidence which may contain biological evidence that was obtained during the investigation or prosecution of the crime.

(5)  The bill permits a person who was wrongfully convicted and imprisoned to bring an action against the state for compensation.

(6)  The bill creates a forensic laboratory oversight commission to oversee and investigate independently the department of public safety’s forensic laboratory.

AN ACT RELATING TO AUTHORIZING A JURY SENTENCE OF LIFE FOR AGGRAVATED SEXUAL ASSAULT AND LIFE WITHOUT PAROLE FOR FIRST DEGREE AGGRAVATED SEXUAL ASSAULT AND PREVENTING CONVICTION OF INNOCENT PERSONS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  13 V.S.A. chapter 72 is amended to read:

CHAPTER 72.  SEXUAL ASSAULT

* * *

§ 3253.  AGGRAVATED SEXUAL ASSAULT

(a)  A person commits the crime of aggravated sexual assault if the person commits sexual assault under any one of the following circumstances:

(1)  The victim is under the age of 13 and the actor is at least 16 years of age.

(2)  At the time of the sexual assault, the actor causes serious bodily injury to the victim or to another.

(3)  The actor is joined or assisted by one or more persons in physically restraining, assaulting or sexually assaulting the victim.

(4)  The actor commits the sexual act under circumstances which constitute the crime of kidnapping.

(5)  The actor has previously been convicted in this state of sexual assault under subdivision 3252(a)(1) or (2) of this title or aggravated sexual assault or has been convicted in any jurisdiction in the United States or territories of an offense which would constitute sexual assault under subdivision 3252(a)(1) or (2) of this title or aggravated sexual assault if committed in this state.

(6)  At the time of the sexual assault, the actor is armed with a deadly weapon and uses or threatens to use the deadly weapon on the victim or on another.

(7)  At the time of the sexual assault, the actor threatens to cause imminent serious bodily injury to the victim or to another and the victim reasonably believes that the actor has the present ability to carry out the threat.

(8)  At the time of the sexual assault, the actor applies deadly force to the victim.

(9)  The victim is subjected by the actor to repeated nonconsensual sexual acts as part of the same occurrence or the victim is subjected to repeated nonconsensual sexual acts as part of the actor’s common scheme and plan.

(b)  A person who commits the crime of aggravated sexual assault shall be imprisoned up to and including life or fined not more than $50,000.00, or both. No person who receives a minimum sentence under this section shall be eligible for early release or furlough until the expiration of the minimum sentence imposed.  A jury shall impose this sentence under the procedures set forth in subsections 3259(a)-(b) and (e).  There shall be no reconsideration of a jury imposed sentence except by a jury.  Appeal of a jury imposed sentence under this section shall be in accordance with the provisions of section 2383 of Title 12 and the Vermont Rules of Criminal Procedure. 

* * *

§ 3257.  FIRST DEGREE AGGRAVATED SEXUAL ASSAULT DEFINED

(a)(1)  A person is guilty of first degree aggravated sexual assault if the person commits sexual assault as defined in section 3252 of this title when the victim meets the criteria under subdivision 3257(a)(1) or (2) of this title or aggravated sexual assault as defined in section 3253 of this title; and:

(A)  the victim is under 13 years of age and is entrusted to the actor’s care by authority of law or by the child’s parent or guardian or by a person acting at the direction of the child’s parent or guardian and the actor is at least 16 years of age;

(B)  the victim is under 13 years of age and is the person’s child, grandchild, foster child, adopted child, or stepchild;

(C)  the victim is under 13 years of age and one or more heinous elements exist as defined in subdivision (2) of this subsection.

(D)  two or more heinous elements as defined in subdivision (2) of this subsection exist; or

(E)  one or more heinous elements as defined in subdivision (2) of this subsection exist, and the person has previously been convicted in this state of sexual assault or aggravated sexual assault or has been convicted in any jurisdiction in the United States or territories of an offense which would constitute sexual assault or aggravated sexual assault if committed in this state.

(2)  For purposes of this section, a heinous element exists if:

(A)  the victim was under the age of 11 and the actor is at least 15 years of age;

(B)  the victim was under the age of 13, and the actor provided or delivered the victim to another actor who engaged in sexual assault or five or more lewd and lascivious acts against the victim;

(C)  the offender intentionally mutilated the victim;

(D)  the offender was armed with a dangerous weapon and threatened to use it against the victim in order to cause the victim to submit to the assault;

(E)  the offender exposed the victim to extreme inhumane conditions as defined in subdivision (5) of this section;

(F)  the offense involved the sexual assault of more than one victim;

(G)  the offense involved more than one perpetrator sexually assaulting the victim; or

(H)  the offender moved the victim from one place to another and did not intend to release the victim in a safe place; or

(I)  the offender tortured the victim.

(3)  A conviction for first degree aggravated sexual assault may not be based upon a heinous element constituted by conduct that was also an element of the underlying aggravated sexual assault conviction, except for factors of age.

(4)  The findings for each heinous element shall be supported by different underlying facts, except for factors of age.

(5)  As used in this section:

(A)  “Extreme inhumane conditions” means situations where, either before or after the sexual assault, the offender knowingly causes or permits the victim to be placed in a situation likely to cause death or severe ongoing mental, emotional, or psychological harm.

(B)  “Mutilation” means the intentional infliction of physical abuse designed to cause serious permanent disfigurement or permanent or protracted loss or impairment of any bodily function, where the offender relishes the infliction of the abuse, evidencing debasement or perversion.

(C)  “Torture” means the intentional infliction of extreme mental anguish or extreme psychological or physical abuse when committed in an especially depraved manner.

(b)(1)  A person who commits the crime of first degree aggravated sexual assault shall be imprisoned not less than 25 years and up to and including life without parole and fined not more than $100,000.00.  The sentence shall be determined by a jury pursuant to section 3259 of this title.

(2)  The court shall not place on probation or parole or suspend or defer the sentence of any person convicted of first degree aggravated sexual assault.  No person who receives a minimum sentence under this section shall be eligible for early release or furlough until the expiration of the minimum sentence imposed.

§ 3258.  NOTICE OF INTENT TO SEEK CONVICTION FOR FIRST

               DEGREE AGGRAVATED SEXUAL ASSAULT

(a)  Whenever the state intends to seek a conviction for the crime of first degree aggravated sexual assault, the attorney for the state, before trial or acceptance by the court of a plea of guilty, shall file with the court and serve upon the defendant a notice that:

(1)  the state intends to seek a conviction for the crime of first degree aggravated sexual assault; and

(2)  sets forth the provisions of section 3257 of this title which the state alleges will support the conviction.

(b)  A notice of intent to seek a conviction for first degree aggravated sexual assault may be withdrawn at any time by a written notice of withdrawal filed with the court and served upon the defendant.  Once withdrawn, the notice of intent to seek a conviction for first degree aggravated sexual assault may not be refiled.

§ 3259.  SENTENCING HEARING

(a)  When the attorney for the state has filed a notice as required under section 3258 of this title and the defendant is found guilty or pleads guilty to the offense of first degree aggravated sexual assault, the judge who presided at the trial or before whom the guilty plea was entered or any other judge if the judge who presided at the trial or before whom the guilty plea was entered is unavailable shall conduct a separate sentencing hearing to determine the punishment to be imposed.  The hearing shall be conducted:

(1)  before the jury which determined the defendant’s guilt; or

(2)  before a jury impaneled for the purpose of the hearing if:

(A)  the defendant was convicted upon a plea of guilty; or

(B)  the jury which determined the defendant’s guilt has been discharged for good cause.

(b)  A jury impaneled under this section shall consist of 12 members, unless at any time before the conclusion of the hearing the parties stipulate with the approval of the court that it shall consist of a number less than 12.

(c)  When a defendant is found guilty of or pleads guilty to the crime of first degree aggravated sexual assault, no presentence report shall be prepared.

(d)(1)  The following information may be presented at the sentencing hearing:

(A)  Information concerning aggravating factors as defined in subdivision (2) of this subsection.

(B)  Information concerning mitigating factors as defined in subdivision (3) of this subsection.

(C)  The trial transcript and exhibits.

(D)  Any other information relevant to aggravating or mitigating factors presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

(2)  As used in this section, aggravating factors shall include the following:

(A)  The assault was committed while the defendant was in custody under sentence of imprisonment.

(B)  The defendant was previously convicted of a felony involving the use of violence to a person.

(C)  The assault was committed while the defendant was engaged in the commission of or in an attempt to commit or in immediate flight after committing a felony.

(D)  The victim of the assault was particularly weak, vulnerable, helpless, or of tender years.  “Tender years” shall be presumed when the victim was 11 years or under.

(E)  The assault was particularly severe, brutal, or cruel.

(F)  The assault involved multiple victims.

(G)  The assault was random, predatory, or arbitrary in nature.

(H)  There were multiple assaults of at least five in number and that were part of a pattern or scheme that existed over a period of at least 30 days.

(I)  Any other factor that the state offers in support of a greater sentence.

(3)  As used in this section, mitigating factors shall include the following:

(A)  The defendant had no significant history of prior criminal activity before sentencing.

(B)  The defendant was suffering from a severe mental or severe physical disability or condition that significantly reduced his or her culpability for the assault.

(C)  The defendant was an accomplice in the assault committed by another person, and his or her participation was relatively minor.

(D)  The defendant because of youth or old age lacked substantial capacity of judgment in committing the assault; provided, however, that capacity of judgment shall be presumed if the defendant is 13 years or older.

(E)  The defendant acted under duress, coercion, threat or compulsion insufficient to constitute a defense but which significantly affected his or her conduct.

(F)  The victim was at least 13 years of age and knowingly and intelligently consented to the sexual act; provided, however, this factor must be proved by clear and convincing evidence.

(G)  Any other factor that the defendant offers in support of a lesser sentence.

(e)  The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present an argument as to the adequacy of the information to establish the existence of the aggravating or mitigating factors and as to the appropriateness in that case of imposing a particular sentence.  The burden of establishing any aggravating factor is on the state and is not satisfied unless established beyond a reasonable doubt.  The burden of establishing the existence of any mitigating factor is on the defendant and is not satisfied, except as otherwise provided, unless established by a preponderance of the evidence.

(f)  In determining whether a sentence of life imprisonment without the possibility of parole is to be imposed upon a defendant, the jury shall consider information presented under subsections (d) and (e) of this section and any other mitigating factor that the defendant offers against imposition of such sentence.

(g)  If the jury does not find that one of the aggravating factors set forth in subdivision (d)(2) of this section exists, the jury:

(1)  shall impose a sentence of not less than the minimum term of 25 years’ imprisonment; and

(2)  shall not impose a sentence of life imprisonment without the possibility of parole. 

(h)(1)  If the jury finds unanimously that at least one of the aggravating factors set forth in subdivision (d)(2) of this section exists, the jury by a two‑thirds vote may impose either:

(A)  a sentence of not less than the minimum term of 25 years’ imprisonment up to life; or

(B)  a sentence of life imprisonment without the possibility of parole if the jury by unanimous vote finds that any aggravating factor or factors found to exist sufficiently outweigh any mitigating factor or factors found to exist or, in the absence of mitigating factors, that the aggravating factor or factors are sufficient to justify a sentence of life imprisonment without possibility of parole. 

(2)  Regardless of its findings with respect to the aggravating and mitigating factors, the jury is never required to impose a sentence of life without possibility of parole, and the court shall so instruct the jury.

§ 3260.  AUTOMATIC REVIEW BY SUPREME COURT

(a)  In all cases in which a sentence of life without possibility of parole is imposed under section 3259 of this title, the judgment of the conviction and the sentence shall be subject to automatic review by the supreme court.

(b)  When considering an appeal under this section, the supreme court, in addition to any other issues properly raised, shall determine:

(1)  whether the sentence of life imprisonment without the possibility of parole was imposed under the influence of passion, prejudice, or any other arbitrary factor; and

(2)  whether the evidence supports the jury’s finding of the existence of any aggravating factor in subsection 2303(d) of this title.

(c)  When considering an appeal under this section, the supreme court, in addition to its general review powers, shall be authorized to:

(1)  affirm the sentence; or

(2)  set the sentence aside and remand the case for resentencing before a new jury.

Sec. 2.  13 V.S.A. chapter 169 is added to read:

CHAPTER 169.  INNOCENCE PROTECTION

Subchapter 1.  Prevention of Wrongful Convictions

§ 5451.  DEFINITIONS

As used in this chapter:

(1)  “Custodial interrogation” means an interrogation by a law enforcement officer or an agent of a law enforcement agency of a person suspected of committing a crime from the time the suspect is or should be informed of his or her rights to counsel and to remain silent until the questioning ends, during which the officer or agent asks a question that is reasonably likely to elicit an incriminating response and during which a reasonable person in the suspect’s position would believe that he or she is in custody or otherwise deprived of his or her freedom of action in any significant way.

(2)  “Eyewitness” means a person who observes another person at or near the scene of an offense.

(3)  “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.

(4)  “Identification procedure” means either a photo lineup or a live lineup.

(5)  “Investigator” means a person conducting a live or photo lineup.

(6)  “Law enforcement agency” shall have the same meaning as in subsection 3019(a) of this title.

(7)  “Law enforcement officer” shall have the same meaning as in subdivision 3501(a)(4) of this title.

(8)  “Live lineup” means a procedure in which a group of persons, including the person suspected as the 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 is able to identify the suspect as the perpetrator.

(9)  “Photo lineup” means a procedure in which an array of photographs, including a photograph of the person suspected as the 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 is able to identify the suspect as the perpetrator.

(10)  “Statement” means an oral, written, sign language, or nonverbal communication.

§ 5452.  Recording custodial interrogations;

               Admissibility of defendant’s statement

(a)  Unless subsection (b) of this section applies:

(1)  a law enforcement agency shall make an audio or an audio and visual recording of any custodial interrogation related to the investigation or prosecution of a felony; and

(2)  a statement made during a custodial interrogation is not admissible in any court proceeding against the person who made the statement unless an audio or an audio and visual recording of the interrogation was made and is available.

(b)  An audio or an audio and visual recording of a custodial interrogation is not required, and a statement made during a custodial interrogation shall not be inadmissible, if any of the following apply:

(1)  The person refused to respond or cooperate in the interrogation, and a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the person’s refusal.

(2)  The statement was made in response to a question asked as part of the routine processing of the person.

(3)  The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or an audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer’s or agent’s knowledge, the equipment malfunctioned or stopped operating.

(4)  The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.

(5)  Exigent public safety circumstances existed that prevented the making of an audio or an audio and visual recording or rendered the making of such a recording impracticable.

(6)  The law enforcement officer conducting the interrogation or the law enforcement officer responsible for observing an interrogation conducted by an agent of a law enforcement agency reasonably believed at the commencement of the interrogation that the offense for which the person was taken into custody or for which the person was being investigated was not a felony.

(7)  Any other good cause exists for not requiring the recording or the suppression of the statement.

(c)  A law enforcement officer or agent of a law enforcement agency conducting a custodial interrogation is not required to inform the subject of the interrogation that the officer or agent is making an audio or an audio and visual recording of the interrogation.

(d)  A defendant’s lack of consent to having an audio or an audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of the recording.

(e)  An audio or an audio and visual recording of a custodial interrogation shall not be open to public inspection before one of the following occurs:

(1)  The person interrogated is convicted or acquitted of an offense that is a subject of the interrogation.

(2)  All criminal investigations and prosecutions to which the interrogation relates are concluded.

(f)(1)  The department of public safety shall award grants to law enforcement agencies for the purchase, installation, or maintenance of digital recording equipment for making audio or audio and visual recordings of custodial interrogations or for training personnel to use such equipment.  The department shall develop criteria and procedures to administer this subsection and may award more than one grant to a law enforcement agency.

(2)  A law enforcement agency shall include the following information in an application for a grant under this subsection:

(A)  How the agency proposes to use the grant funds.

(B)  Procedures to be followed when recording equipment fails to operate correctly, including procedures for reporting failures, using alternative recording equipment, and repairing or replacing the equipment.

(C)  Procedures for storing recordings of custodial interrogations, including storage format, storage location, and indexing of recordings for retrieval.

(D)  Measures to prevent or detect tampering with recordings of custodial interrogations.

(E)  Any other information required by the department.

§ 5453.  EYEWITNESS IDENTIFICATION PROCEDURES

(a)  All law enforcement agencies shall adopt procedures for conducting photo lineups and live lineups. 

(b)  Lineup procedures adopted pursuant to this section shall comply with the following requirements:

(1)(A)  When practicable, the investigator shall be a person who is not aware of which person in the photo lineup or live lineup is suspected as the perpetrator of the offense.

(B)  When it is impracticable for the investigator to be a person who is not aware of which person in the photo or live lineup is suspected as the perpetrator of the offense:

(i)  the lineup shall be presented simultaneously, not sequentially; and

(ii)  the investigator shall state in writing the reason that presentation of the lineup was not made by a person who was not aware of which person in the photo lineup or live lineup was suspected as the perpetrator of the offense.

(2)  The eyewitness shall be instructed prior to the identification procedure that:

(A)  the perpetrator may not be among the persons in the photo lineup or the live lineup;

(B)  the eyewitness should not feel compelled to make an identification;

(C)  when a live lineup or photo lineup is administered in sequence rather than simultaneously:

(i)  each photograph or person will be viewed one at a time;

(ii)  the photographs or persons will be displayed in random order;

(iii)  the eyewitness should take as much time as needed in making a decision about each photograph or person before moving to the next one; and

(iv)  all photographs or persons will be shown to the eyewitness, even if an identification is made before all have been viewed.

(3)  The photo lineup or live lineup shall be composed so that the fillers generally fit the description of the person suspected as the perpetrator and, in the case of a photo lineup, so that the photograph of the person suspected as the perpetrator resembles his or her appearance at the time of the offense and does not unduly stand out.

(4)  If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the person suspected as the perpetrator participates shall be different from the fillers used in any prior lineups.

(5)  At least five fillers shall be included in the photo lineup and at least four fillers shall be included in the live lineup, in addition to the person suspected as the perpetrator.

(6)  In a photo lineup, no writings or information concerning any previous arrest of the person suspected as the perpetrator shall be visible to the eyewitness.

(7)  In a live lineup, any identifying actions, such as speaking or making gestures or other movements, shall be performed by all lineup participants.

(8)  In a live lineup, all lineup participants shall be out of the view of the eyewitness at the beginning of the identification procedure.

(9)  The person suspected as the perpetrator shall be the only suspected perpetrator included in the identification procedure.

(10)  Except as provided in subdivision (2) of this subsection, nothing shall be said to the eyewitness regarding the position in the photo lineup or the live lineup of the person suspected as the perpetrator.

(11)  Nothing shall be said to the eyewitness that might influence the eyewitness’s selection of the person suspected as the perpetrator.

(12)  The investigator shall ask the eyewitness to indicate, in the eyewitness’s own words, his or her confidence level that the person or persons identified in the lineup are the suspects.

Subchapter 2.  Postconviction DNA Testing

§ 5461.  PETITION FOR POSTCONVICTION DNA TESTING

(a)  A person convicted of a crime may at any time file a petition requesting forensic DNA testing of any evidence which may contain biological evidence that was obtained during the investigation or prosecution of the crime.  The petition shall contain facts showing that DNA testing may be material to the petitioner’s claim of wrongful conviction.

(b)  The petition shall be filed in the district court where the conviction was obtained.  The court shall provide copies of the petition to the attorney general and to the state’s attorney in the district where the conviction was obtained, and the state shall file a response within 30 days after it receives the petition.

(c)  The court shall schedule a hearing on the petition within 90 days after it is filed.  Time limits under this subchapter may be extended for good cause shown.

(d)  The court may dismiss the petition if it determines that:

(1)  the petition, response, files, and records conclusively establish that the petitioner is entitled to no relief; or

(2)  the petition was not made to demonstrate innocence or the appropriateness of a lesser sentence and will unreasonably delay the execution of sentence or administration of justice.     

§ 5462.  ASSIGNMENT OF COUNSEL

The court may appoint counsel if the petitioner is unable financially to employ counsel, and may order that all necessary costs and expenses incident to the matter, including but not limited to court costs, stenographic services, printing and reasonable compensation for legal services, be paid by the state from the appropriation to the court where the sentence was imposed. On appeal, the supreme court may make a similar order.

§ 5463.  DISCOVERY

The court may make the following discovery orders at any time after a petition has been filed under this subchapter:

(1)  The court may order the state to locate and provide the petitioner with any documents, notes, logs, or reports relating to items of physical evidence collected in connection with the case or to help the petitioner locate items of biological evidence that the state contends have been lost or destroyed.  The court may further order the state to take reasonable measures to locate biological evidence that may be in its custody or to help the petitioner locate evidence that may be in the custody of a public or private hospital, public or private laboratory, or other facility.

(2)  If evidence has previously been subjected to DNA testing, the court may order production of laboratory reports prepared in connection with the testing, as well as the underlying data and the laboratory notes.

(3)  If any DNA or other biological evidence testing was previously conducted by either the prosecution or the defense without knowledge of the other party, the court may order that the previous testing be disclosed.

(4)  If the court orders DNA testing under this subchapter, the court shall order the production of any laboratory reports prepared in connection with the testing and may order production of the underlying data, bench notes, or other laboratory notes.

(5)  The results of any postconviction DNA testing conducted pursuant to this subchapter shall be disclosed to the state, the petitioner, and the court.

§ 5464.  PRESERVATION OF EVIDENCE

(a)(1)  Notwithstanding any other provision of law, any item of physical evidence containing biological material that is secured in connection with a criminal case shall be retained by the government entity having custody of the evidence for the period of time that any person remains incarcerated, on probation or parole, civilly committed, or subject to registration as a sex offender in connection with the case.

(2)  This section shall apply whether or not a petition for postconviction DNA testing is filed under this subchapter.

(3)  If a petition is filed under this subchapter:

(A)  this section shall apply until proceedings on the petition are concluded;

(B)  the state shall prepare an inventory of the evidence related to the case and submit a copy of the inventory to the petitioner and the court.

(4)  If evidence is intentionally destroyed after a petition is filed under this subchapter, the court may impose on the responsible party any penalty provided by law.

(b)  For purposes of this section, “biological evidence” means:

(1)  any item that contains blood, semen, hair, saliva, skin tissue, or other identifiable biological material, whether that material is catalogued separately, as in a test tube or on a slide or swab, or whether the material is present on other evidence such as clothing, ligatures, drinking cups, cigarettes, bedding, or other household material; or

(2)  the contents of a sexual assault examination kit.

§ 5465.  ORDER; CONFIDENTIALITY

(a)  The court shall grant the petition and order DNA testing if it makes all of the following findings:

(1)  A reasonable probability exists that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through DNA testing at the time of the original prosecution.

(2)  One or more of the items of evidence that the petitioner seeks to have tested is still in existence.

(3)  The evidence to be tested was obtained in connection with the offense that is the basis of the challenged conviction, and:

(A)  was not previously subjected to DNA testing; or

(B)  although previously subjected to DNA testing, can be subjected to additional DNA testing that provides a reasonable likelihood of more probative results.

(4)(A)(i)  The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect; or

(ii)  If the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence.

(B)  For purposes of this subchapter, evidence that has been in the custody of a law enforcement agency, a governmental body, or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement of this subdivision, absent specific evidence of material tampering, replacement, or alteration.

(b)  The court may designate in its order:

(1)  the type of DNA analysis to be used;

(2)  the testing procedures to be followed;

(3)  the preservation of some portion of the sample for replicating the testing;

(4)  additional DNA testing, if the results of the initial testing are inconclusive or otherwise merit additional scientific analysis; or

(5)  the collection and DNA testing of elimination samples from third parties.

(c)  DNA profile information from biological samples taken from any person pursuant to a petition under this subchapter shall be confidential and shall be exempt from any law requiring disclosure of information to the public.

§ 5466.  APPEALS

An appeal may be taken to the supreme court from the order entered on the petition.

§ 5467.  CHOICE OF LABORATORY; PAYMENT

(a)  If the court orders DNA testing under this subchapter, the testing shall be conducted at a facility mutually agreed upon by the petitioner and the state and approved by the court.  If the parties are unable to agree, the court shall designate the testing facility and provide the parties with a reasonable opportunity to be heard on the issue.

(b)  The court shall impose reasonable conditions on the testing to protect the parties’ interests in the integrity of the evidence and the testing process.

(c)(1)  The state shall bear the costs of testing performed at the state crime laboratory.

(2)  Except as provided in subdivision (3) of this subsection, the court may require the petitioner, the state, or both to pay for testing performed at a private laboratory.

(3)  If the state crime laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the state shall bear the costs of testing at a private laboratory which does have such capabilities or resources.

§ 5468.  PROCEDURE AFTER TEST RESULTS OBTAINED

(a)  If the results of forensic DNA testing ordered under this subchapter are favorable to the petitioner, the court shall schedule a hearing within five days after the results are received to determine the appropriate relief to be granted.  The petitioner and the state shall be permitted to submit motions and be heard at the hearing.

(b)  At or subsequent to the hearing, the court may issue an order directing one or more of the following:

(1)  setting aside or vacating the petitioner’s judgment of conviction, judgment of not guilty by reason of mental disease or defect, or adjudication of delinquency;

(2)  granting the petitioner a new trial or fact-finding hearing;

(3)  granting the petitioner a new sentencing hearing, commitment hearing, or dispositional hearing;

(4)  discharging the petitioner from custody;

(5)  specifying the disposition of any evidence that remains after the completion of the testing;

(6)  granting the petitioner additional discovery on matters related to DNA test results or the conviction or sentence under attack, including documents pertaining to the original criminal investigation and the identities of other suspects; or

(7)  directing the state to place any unidentified DNA profiles obtained from postconviction DNA testing into a state or a federal database, or both.

§ 5469.  SUCCESSIVE PETITIONS

(a)  The court shall not be required to entertain a second or successive petition for similar relief on behalf of the same petitioner unless it appears the petition will be assisted by the availability of more advanced DNA technology.

(b)  The court may entertain a second or successive petition if it determines that doing so would serve the interests of justice.

Subchapter 3.  Compensation for Wrongful Convictions

§ 5481.  RIGHT OF ACTION; PROCEDURE

(a)  A person convicted and imprisoned for a crime which the person did not commit shall have a cause of action for damages against the state.

(b)  An action brought under this subchapter shall be filed in Washington superior court.  Notice of the action shall be served upon the attorney general.

(c)  The Vermont Rules of Civil Procedure shall apply to actions brought under this subchapter, and the plaintiff shall have a right to trial by jury.  The Vermont Rules of Appellate Procedure shall apply to appeals from orders and judgments issued under this subchapter.

(d)  The attorney general may consider, adjust, determine, and settle any claim for damages brought against the state of Vermont under this subchapter.

§ 5482.  COMPLAINT

(a)  A complaint filed under this subchapter shall be supported by facts and shall allege that:

(1)  the complainant has been convicted of a crime, sentenced to a term of imprisonment, and served all or any part of the sentence; and

(2)  the complainant’s actual innocence has been established by the person’s conviction being reversed or vacated, the information or indictment being dismissed, the granting of a pardon, an acquittal after a second or subsequent trial, or through some other means. 

(b)  The court may dismiss the complaint, upon its own motion or upon motion of the state, if it determines that the complaint does not state a claim for which relief may be granted.

§ 5483.  BURDEN OF PROOF; JUDGMENT; DAMAGES 

(a)  A claimant shall be entitled to judgment in an action under this subchapter if the claimant establishes each of the following by a preponderance of the evidence:

(1)  The complainant was convicted of a crime, sentenced to a term of imprisonment, and served all or any part of the sentence.

(2)(A)  The complainant’s conviction was reversed or vacated, the complainant’s indictment or information was dismissed, or the complainant received an acquittal after a second or subsequent trial; or

(B)  The complainant was pardoned for the crime for which he or she was sentenced.

(3)  The complainant did not commit any of the crimes with which he or she was charged, and the acts which the complainant did commit did not constitute any crime.

(4)  The complainant did not fabricate evidence or commit or suborn perjury during any proceedings related to the crime with which he or she was charged.

(b)  A claimant awarded judgment in an action under this subchapter shall be entitled to the following damages:

(1)  The amount of $50,000.00 for each year the claimant was incarcerated, adjusted proportionally for partial years served.

(2)  Economic damages, including lost wages and costs incurred by the claimant for his or her criminal defense and for efforts to prove his or her innocence.

(3)  Up to ten years of physical and mental health care through the state employees’ health care system, offset by any amount provided through the claimant’s employers during that time period.

(4)  Compensation for any reasonable reintegrative services and mental and physical health care costs incurred by the claimant for the time period between his or her release from mistaken incarceration and the date of the award.

(5)  Reasonable attorney’s fees and costs for the action brought under this subchapter.  

(c)  Damages awarded under this section:

(1)  shall not be subject to any state taxes, except for the portion of the judgment awarded as attorney’s fees; and

(2)  shall not be offset by any services awarded to the claimant pursuant to this section or by any expenses incurred by the state or any political subdivision of the state, including expenses incurred to secure or maintain the claimant’s custody or to feed, clothe, or provide medical services for the claimant.

(d)  The claimant’s acceptance of a damages award, compromise, or settlement as a result of a claim under this subchapter shall be in writing and, except when procured by fraud, shall be final and conclusive on the claimant, and constitute a complete release by the claimant of any claim against the state and a complete bar to any action by the claimant against the state with respect to the same subject matter. 

§ 5484.  PAYMENT

(a)  Any award made or compromise or settlement against the state of Vermont agreed upon by the attorney general in response to an action brought under this subchapter shall be paid by the state treasurer out of the treasury, and the emergency board shall reimburse the state treasurer therefor from time to time.

(b)  If the state elects to self‑insure for liability as defined in section 5601 of Title 12, any award, compromise, or settlement against the state of Vermont agreed to by the attorney general shall be paid by the treasurer from the liability self insurance fund.

(c)  To the extent that an award, settlement, or compromise is covered by a policy of liability insurance, payment will be governed by the terms of the policy.

§ 5485.  LIMITATIONS

(a)  Except as provided in subsection (b) of this section, an action for wrongful conviction under this subchapter shall be commenced within three years after the person’s actual innocence is established by the person’s conviction being reversed or vacated, the indictment being dismissed, the granting of a pardon, an acquittal after a second or subsequent trial, or through some other means.

(b)(1)  If the state challenges the establishment of the actual innocence of a person entitled to bring an action under this subchapter, the limitations period shall not commence until the challenge is finally resolved.

(2)  If a cause of action under this subchapter accrues before the effective date of this chapter, the action shall be commenced within three years after the effective date.

(3)  If a person entitled to bring an action under this subchapter is not provided the notice required by section 5486 of this title, the person shall have an additional one year within which to bring the action.     

§ 5486.  NOTICE OF RIGHT OF ACTION

(a)  A copy of this subchapter shall be provided to a person:

(1)  by a court issuing judicial relief establishing the person’s actual innocence through vacating or reversing the person’s conviction, dismissing the information or indictment, entering judgment on an acquittal after a second or subsequent trial, or through some other means; and

(2)  by the parole board when issuing a pardon to the person.

(b)(1)  A person receiving a copy of this subchapter pursuant to subdivision (a)(1) of this section shall be required to acknowledge its receipt in writing on a form established by the court administrator.  The acknowledgement shall be entered on the docket by the court and shall be admissible in an action filed under this subchapter.

(2)  A person receiving a copy of this subchapter pursuant to subdivision (a)(2) of this section shall be required to acknowledge its receipt in writing on a form established by the parole board.  The acknowledgement shall be retained on file by the parole board as part of its official records and shall be admissible in an action filed under this subchapter.

(c)  The administrative judge and the court administrator shall make reasonable attempts to provide notice of this subchapter to persons whose actual innocence was determined by judicial relief issued consistent with subdivision (a)(1) of this section prior to the effective date of this act.

Sec. 3.  20 V.S.A. § 1947 is added to read:

§ 1947.  FORENSIC LABORATORY OVERSIGHT COMMISSION

(a)  There is created the forensic laboratory oversight commission.  The commission shall comprise the following members:

(1)  one member appointed by the governor;

(2)  one member of the senate appointed by the committee on committees;

(3)  one member of the house of representatives appointed by the speaker of the house of representatives;

(4)  one member who has expertise in the field of forensic science appointed by the attorney general;

(5)  one member appointed by the board of trustees of the

University of Vermont who is a faculty member of the medical school and who specializes in clinical laboratory medicine;
(6)  one member appointed by the president of Vermont Law School who is a faculty or staff member and who specializes in criminal justice;
(7)  one member appointed by the executive director of 
the department of state’s attorneys and sheriffs; and
(8)  one member appointed by the defender general.
(b)  Each member of the commission shall serve for a two-year term.  
The governor shall designate a member to serve as chair of the commission.
(c)  The commission shall:  
(1)  develop and implement:  
(A)  an accreditation process for all laboratories, facilities, or entities that conduct forensic analyses; and
(B)  a reporting system through which accredited laboratories, facilities, or entities report professional negligence or misconduct;
(2)  require all laboratories, facilities, or entities that conduct forensic analyses to:
(A)  become accredited by the commission; and
(B)  report professional negligence or misconduct to the commission; and
(3)  investigate, in a timely manner, any allegation of professional negligence or misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory, facility, or entity.
(d)  An investigation under subdivision (c)(3) of this section: 
(1)  shall include the preparation of a written report that identifies and describes the methods and procedures used to identify:
(A)  the alleged negligence or misconduct;
(B)  whether negligence or misconduct occurred; 
(C)  any corrective action required of the laboratory, facility, or entity; and
(2)  may include one or more of the following:  
(A)  retrospective reexaminations of other forensic analyses conducted by the laboratory, facility, or entity that may involve the same kind of negligence or misconduct; and
(B)  follow-up evaluations of the laboratory, facility, or entity to review:
(i)  the implementation of any corrective action required under subdivision (1)(C) of this subsection; or
(ii)  the conclusion of any retrospective reexamination under subdivision (A) of this subdivision (2).
(e)  The commission by contract may delegate the duties described by subdivisions (c)(1) and (3) of this section to any person the commission determines to be qualified to assume those duties.
(f)  As part of the accreditation process developed and implemented under subdivision (c)(1) of this section, the commission may:
(1)  establish minimum accreditation standards and mandatory training requirements for individuals employed by a laboratory, a facility, or an entity that 
conducts forensic analyses;
(2)  validate or approve specific forensic methods or methodologies; and
(3)  establish procedures, policies, and practices to improve the quality of forensic analyses conducted in this state.
(g)  The commission may require that a laboratory, a facility, or an entity required to be accredited under this section pay any costs incurred to ensure compliance with this section.
(h)  The commission shall make all accreditation reviews conducted under subdivision (c)(2) of this section and investigation reports completed under subdivision (d)(1) available to the public.  A report completed under subdivision (d)(1), in a subsequent civil or criminal proceeding, shall not be prima facie evidence of the information or findings contained in the report.
(i)  A member of the commission is entitled to reimbursement for travel expenses at the rate per mile determined by the federal Office of Governmentwide Policy and published in the Federal Register.
(j)  The commission shall submit any report received under subdivision (c)(2) of this section and any report prepared under subdivision (d)(1) to the governor, clerk of the house of representatives, and secretary of the senate not later than December 1 of each even-numbered year.

(k)  In this section, “forensic analysis” means a medical, chemical, toxicological, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action. 

Sec. 4.  REPEAL

13 V.S.A. §§ 7101‑7137 are repealed.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us