An Act To Amend the Law Governing DNA Testing
Maine Legislature, Session 122, LD 1907
Committee Amendment CA_A_H994 (House)
Amends: 15 MRSA §2137, 15 MRSA §2138

COMMITTEE AMENDMENT "A" to H.P. 1348, L.D. 1907, Bill, "An 
Act To Amend the Law Governing DNA Testing" 
Amend the bill by striking out everything after the enacting 
clause and before the summary and inserting in its place the 
following: 
'Sec. 1. 15 MRSA §2137, as enacted by PL 2001, c. 469, §l, is 
repealed and. the following enacted,in its place: 
§2137. 
Post judgment of conviction motion for DNA 
analysis: new trial based on analysis results 
1. 
Motion. 
A 
~erson who 
has 
been 
convicted 
of 
and 
sentenced for a crime under the laws of this State that carries 
the ~otential ~unishment of im~risonment of at least one year and 
for which the ~erson is in actual execution of either a ~re-Maine 
Criminal Code sentence of 
im~risonment. including 
~arole, or a 
sentencing alternative 
~ursuant to Title l7-A, 
section 1152, 
subsection 2 that includes a term of imprisonment or is subject 
to a sentence of im~risonment that is to be served in the future 
because another sentence must be served first may file a written 
~ostjudgment of conviction motion in the underlying criminal 
proceeding moving the court to order DNA analysis of evidence in 
the control or 
~ossession of the State that is related to the 
underlying investigation or ~rosecution that led to the ~erson's 
conviction and a new trial based on the results of that analysis 
as authorized by this chapter. 
For criminal proceedings in which 
Page l-LR2904(2) 
COMMITTEE AMENDMENT 
" .• ~. 
COMM:ITTEE AMENDMENT ,A .. to H.P. 1348, L.D. 1907 
DNA testing was conducted before September 1, 2006, the person 
may file 
a 
written post judgment of conviction motion in the 
underlying criminal proceeding moving the court for a new trial 
based on the results of the DNA testing already conducted using 
the standard set forth in this chapter if the DNA test results 
show that the person is not the source of the evidence. 
2. 
Time for filing. 
A motion under this section must be 
filed by the later of: 
A. 
September 1, 
2008, 
including a motion pertaining to 
criminal proceedings in which 
DNA 
testing was 
conducted 
before September 1, 2006; 
B. 
Two years after the date of conviction; and 
C. 
In cases in' which the request for analysis is based on 
the existence Of new technology with respect to DNA analysis 
that is capable of providing 
new material 
information, 
within 2 years from the time that the technology became 
commonly known and available. 
Sec. 2. 15 MRS A §2138, sub-§4, as enacted by PL 2001, c. 469, 
§l, is repealed. 
Sec.3. 15 MRSA §2138, sub-§4-A is enacted to read: 
A. 
Standard for ordering DBA analysis. 
The court shall 
order DNA analysis if a person authorized under section 2137 
presents prima facie evidence that: 
A. 
A sample of the evidence is available for DNA analysis; 
B. 
The evidence to be tested has been subject to a chain of 
custody sufficient to establish that the evidence has not 
been substituted, tampered with, replaced or altered in a 
material way; 
C. 
The 
evidence 
was 
not 
previOUSly 
subjected 
to 
DNA 
analysis or, if previously analyzed, will be subject to DNA 
analysis technology that was not available when the person 
was convicted; 
D. 
The identity of the person as the perpetrator of the 
crime that resulted in the conviction was at issue during 
the person's trial; and 
E. 
The evidence sought to be analyzed, or the additional 
information that the new technology is capable of providing 
regarding evidence sought to be reanalyzed, is material to 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT ,A .. to H.P. 1348, L.D. 1907 
the issue of whether the person is the perpetrator of, or 
accomplice to, the crime that resulted in the conviction. 
Sec. 4. 15 MRSA §2138, sub-§8, 1[B, as enacted by PL 2001, c. 
469, §l, is amended to read: 
B. 
If the results of the DNA analysis show that the person 
is not the source of the evidence and the person does not 
have counsel, the court shall appoint counsel if the court 
finds that the person is indigent. 
The court shall then 
hold a hearing 
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Sec. 5. 15 MRSA §2138, sub-§10, as enacted by PL 2001, c. 469, 
§1, is repealed and the following enacted in its place: 
10. 
Standard for granting new trial: court"s findings; new 
trial granted or denied. 
If the results of the DNA testing under 
this section show that the person is not the source of the 
evidence, 
the person authorized in section 2137 must show by 
clear and convincing evidence that: 
A. 
Only the perpetrator of the crime or crimes for which 
the 
person 
was 
convicted 
could 
be 
the 
source 
of 
the 
evidence, 
and that the DNA test results, when considered 
with all the other evidence in the case, 
old and new, 
admitted in the hearing conducted under this section on 
behalf of the person 
show that the person is actually 
innocent. 
If the court finds that the person authorized in 
section 
2137 
has 
met 
the 
evidentiary 
burden 
of 
this 
paragraph. the court shall grant a new trial; 
B. 
Only the perpetrator of the crime or crimes for which 
the 
person 
was 
convicted 
could 
be 
the 
source 
of 
the 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT "A" to H.P. 1348, L.D. 1907 
evidence. 
and that the DNA test results. when considered 
with all the other evidence in the case. 
old and new. 
admitted in the hearing conducted under this section on 
behalf of the person would make it probable that a different 
verdict would result upon a new trial: or 
C. 
All of the prereguisites for obtaining a new trial based 
on newly discovered evidence are met as follows: 
(1) 
The DNA test results. when considered with all the 
other evidence in the case. old and new. admitted in 
the hearing conducted under this section on behalf of 
the person would make it probable that a different 
verdict would result upon a new trial: 
(2) 
The 
proferred 
DNA 
test 
results 
have 
been 
discovered by the person since the trial; 
(3) 
The proferred DNA test results could not have been 
obtained by the person prior to trial by the exercise 
of due diligence; 
(4) 
The DNA test results and other evidence admitted 
at the hearing conducted under this section on behalf 
of the person are material to the issue as to who is 
responsible for the crime for which the person was 
convicted; and 
(5) 
The DNA test results and other evidence admitted 
at the hearing conducted under this section. on behalf 
of the person are not merely cumulative or impeaching. 
unless it is clear that such impeachment would have 
resulted in a different verdict. 
The court shall state its findings of fact on the record or make 
written findings of fact supporting its decision to grant or deny 
the person authorized in section 2137 
a 
new trial under this 
section. 
If the court finds that the person authorized in 
section 2137 has met the evidentiary burden of paragraph A. the 
court shall grant a new trial. 
For purposes of this subsection. "all the other evidence in the 
case, 
old and 
new." 
means 
the evidence 
admitted at trial; 
evidence admitted in any hearing on 
a 
motion for 
new trial 
pursuant to Rule 33 of the Maine Rules of Criminal Procedure; 
evidence admitted at any collateral proceeding, state or federal: 
evidence admitted at the hearing conducted under this section 
relevant to the DNA testing and analysis conducted on the sample: 
and evidence relevant to the identity of the source Qf the DNA 
sample. 
COMM/rrEE AMENDMENT 
· ".d\~-
COMMITTEE AMENDMENT A" to H.P. 1348, L.D. 1907 
Sec. 6. Effective date. 
2006 .. 
This Act takes effect September 1, 
SUMMARY 
The amendment replaces the bill. 
It amends the post judgment 
of conviction motion for DNA analysis procedures in the Maine 
Revised Statutes, Title 15, chapter 305-B and specifically does 
the following: 
to: 
1. 
It repeals and replaces Title 15, section 2137 in order 
A. 
Expand the universe of convicted persons authorized to 
seek relief under Title 15, chapter 305-B from those persons 
who have been convicted of a murder or of a Class A, B or C 
crime, formerly referred to as a felony crime, that carries 
a potential punishment of imprisonment of at least 20 years 
and whose actual sentence includes a term of imprisonment 
that has not yet been fully served to those persons who have 
been convicted of any Maine fe-Iony crime and whose actual 
sentence 
includes 
straight 
imprisonment 
or 
imprisonment 
accompanied 
by parole, 
probation, 
supervised release 
or 
administrative release that has not yet been fully served. 
A "Maine felony crime" is an "infamous crime" and includes 
any former or current crime inside or outside of the Maine 
Criminal Code or any former pre-Maine Criminal Code crime 
that 
carries 
or 
carried 
a 
potential 
punishment 
of 
imprisonment for one year or more. 
See Opinion of the 
Justices, 338 A.2d 802 
(Me. 
1975) (careful examination of 
the history of the concept of "infamous crime" as used in 
Article 1, section 7 of the Constitution of Maine); 
B. 
Clarify that a qualifying person who may have previously 
sought relief under Title 15, chapter 305-B and obtained DNA 
test results that showed that the person was not the source 
of 
the 
evidence 
may 
again 
seek 
relief based 
upon 
new 
standards set forth in section 2138, subsection 10; and 
C. 
Establish a 2-year period of limitation for filing a 
motion seeking relief under Title 15, chapter 305-B. 
The 
period runs 
from the latest of: 
within 2 years of the 
effective 
date 
of 
this 
Act, 
including 
for 
criminal 
proceedings 
in 
which 
DNA 
testing 
was 
conducted 
before 
September 1, 
2006; 
within 2 years after the date of a 
qualifying conviction; and, in cases in which the request 
for analysis is based on the existence of new technology 
COMMITTEE AMENDMENT 
t.fi6. 
~ 
COMMITTEE AMENDMENT ,if .. to H.P. 1348, L.D. 1907 
with respect to DNA analysis that is capable of providing 
new material information, within 2 years from the time that 
the technology became commonly known and available. 
2. 
It repeals Title 15, section 2138, 
subsection 4 
and 
replaces it with subsection 4-A, thereby amending the law by: 
A. 
Changing the headnote to better identify the purpose 
served by the subsection; 
B. 
Changing the order of the 5 things to be demonstrated by 
the convicted person so that presenting prima facie evidence 
as to materiality of the evidence sought to be analyzed, 
currently Title 15, section 2138, subsection 4, paragraph A, 
is instead listed last as a new paragraph E, as logically it 
should be; and 
C. 
Including in the new paragraph E consideration of what 
information DNA analysis technology that was not available 
when the person was convicted is capable of providing with 
respect to the evidence sought to be analyzed in the event 
the evidence has been previously analyzed. 
New technology 
that is not 
capable 
of 
producing 
new 
information with 
respect 
to 
who 
is 
responsible 
for 
the 
crime, 
such 
as 
technology that simply speeds up or simplifies the analysis 
process, would not be material and thus would not support a 
new court-ordered DNA analysis of the evidence. 
3. 
It strikes from Title 15, section 2138, subsection 8, 
paragraph B the criteria for the hearing required in the event 
the results of the DNA analysis show that the convicted person is 
not the source of the evidence, instead referring to the criteria 
in Title 15, section 2138, subsection 10. 
4. 
It 
repeals 
and 
replaces 
Title 
15, 
section 
2138, 
subsection 10 in order to: 
A. 
Change 
the headnote 
to identify the fact that the 
standard for granting a new trial is now contained in the 
subsection; 
B. 
Add 
to 
the 
subsection 
alternative 
standards 
for 
granting a new trial in the event the results of the DNA 
analysis show the convicted person is not the source of the 
evidence. 
The 3rd and final standard, 
new paragraph C, 
differs from the first 2 in that a convicted person need not 
establish by clear and convincing evidence that only the 
perpetrator of the crime or crimes for which the person was 
convicted can be the source of the evidence. 
Because the 
convicted person is not required to make such a showing, the 
COMMITTEE AMENDMENT 
t~ 
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COMMITTEE AMENDMENT ,,/+. to H.P. 1348, L.D. 1907 
standard required under new paragraph C is made up of the 5 
prerequisites 
for obtaining 
a 
new trial based on 
newly 
discovered evidence set forth in State v. Casale, 148 Me. 
312, 
319-20, 
A.2d 
718, 
(1952) 
and 
consistently 
applied by the Law Court to the present. 
See 1 Cluchey & 
Seitzinger, Maine Criminal Practice, § 33.3 at vi-33, n. 24 
(Gardiner ed. 1995); State v. Cookson, 2003 ME 136, ,[29, 837 
A.2d 
101, 
110. 
The 
convicted person must 
show all 
prerequisites by clear and convincing evidence. 
Cookson, 
Idj State v. Doyon, 
1999 ME 
185, ,r9, 
A.2d 365,367; 
State v. Andolino, 1999 ME 14, ,r8, 723 A.2d 870, 873. 
In 
the first and 2nd standards listed as paragraphs A and B, 
because the convicted person is required to make such a 
showing, the 5 prerequisites for obtaining a new trial based 
on newly discovered evidence are truncated. 
Prerequisites 2 
and 3 are eliminated as a matter of fairness in order to 
avoid foreclosing relief based on these timing hurdles. 
Prerequisites '4 
and 
are 
eliminated 
as 
automatically 
necessarily satisfied in these circumstances. 
The first and 
2nd standards differ from 
one another, 
however, 
in what 
additionally must be established by the convicted person in 
order to obtain a new trial. 
Under the first standard, new 
paragraph A, 
the person must also establish by clear and 
convincing 
evidence 
that 
the 
DNA 
test 
results, 
when 
considered with all the other admitted evidence, old and 
new, show that the person is actually innocent of the crime 
or crimes for which the person was convicted. 
Under the 
second standard, new paragraph B, the person need not show 
actual innocence, but instead must establish by clear and 
convincing 
evidence 
that 
the 
DNA 
test 
results, 
when 
considered with. all the other admitted evidence, old and 
new, would make it probable that a different verdict would 
result upon a new trial. 
This second standard is like that 
currently found in Title 15, section 2138, 
subsection 8, 
paragraph B; and 
C. 
Add a definition for "all the other evidence in the 
case, old and new," as used in new paragraphs A and Band 
new paragraph C, 
subparagraph (1). 
Further, although not 
expressly stated in paragraphs A and B and paragraph C, 
subparagraph (1), it is intended that the court, as in any 
hearing for a new trial based on newly discovered evidence, 
must determine both weight and credibility to be attached to 
the newly discovered evidence. 
See State v. Hardy, 
501, 
A.2d 815, 816 
(Me. 1985). 
And in the context of the DNA 
analysis itself, this would include consideration by the 
court as to whether the convicted person demonstrated that 
the 
evidence 
was 
collected, 
handled 
and 
preserved 
by 
procedures that allow the court to find that the evidence is 
not contaminated or is not so degraded that the DNA profile 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT .. 11k. to H.P. 1348, L.D. 1907 
of the analyzed sample of the evidence cannot be determined 
to be identical to the DNA sample initially collected during 
the investigation. 
See Title 15, section 2138, subsection 
8, paragraph B, subparagraph (2). 
It is intended that the Maine Rules of Evidence apply at any 
hearing conducted under the subsection. 
See M.R. Evid. 1101. 
5. 
It establishes ~n effective date of September 1, 2006. 
FISCAL 1\'01'E REQURED 
!~e~!l_ttached) 
COMMITTEE AMENDMENT 
Approved: 03/28/06 ~ac:.. 
LD 1907 
LR 2904(02) 
An Act To Amend the Law Governing DNA Testing 
Fiscal Note for Bill as Amended by Committee Amendment .fl" 
Committee: Judiciary 
Fiscal Note Required: Yes 
Fiscal Note 
Undetennined current biennium cost increase - General Fund 
Potential current biennium cost decrease - General Fund 
Correctional and Judicial Impact Statements: 
This legislation allows post-judgment conviction motions for DNA analysis to be brought by certain 
convicted persons and establishes standards for granting a new trial. The.se changes will likely result 
in an increase in the number of cas~s filed in the court system. This new caseload may require 
additional judges, clerks and security and necessitate additional indigent defense costs. The 
Department of the Attorney General may also experience an increase in workload. The bill has the 
potential for early release of prisoners in a few cases, decreasing correctional costs to the Department 
of Corrections. 
LR2904(2) - Fiscal Note - Page 1 of I