An Act To Amend Certain Provisions Regarding Evidence under the Law Concerning Post-judgment DNA Analysis
Maine Legislature, Session 125, LD 0824
Committee: Criminal Justice and Public Safety
Sponsors: MARTIN, JACKSON, THERIAULT, GERZOFSKY
Amends: 15 MRSA §2138

Legislative Document 
No. 824 
H.P. 620 
House of Representatives, March 3, 2011 
An Act To Amend Certain Provisions Regarding Evidence under 
the Law Concerning Post-judgment DNA Analysis 
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative MARTIN of Eagle Lake. 
Cosponsored by Senator JACKSON of Aroostook and 
Representative: THERIAULT of Madawaska, Senator: GERZOFSKY of Cumberland. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  15 MRSA §2138, sub-§2, as enacted by PL 2001, c. 469, §1, is amended 
to read: 
2.  Preservation of evidence.  If a motion is filed under this chapter, the court shall 
order the State to preserve during the pendency of the proceeding all evidence in the 
State's possession or control that could be subjected to DNA analysis.  The State shall 
prepare an inventory of the evidence and submit a copy of the inventory to the defense 
and the court.  If For evidence gathered prior to January 1, 1988, if evidence is 
intentionally destroyed after the court orders its preservation, the court may impose 
appropriate sanctions.  For evidence gathered on or after January 1, 1988, if the State fails 
to preserve evidence subject to the court's order under this subsection, it is prima facie 
evidence that the DNA testing is favorable to the person filing the motion under 
subsection 1. 
Sec. 2.  15 MRSA §2138, sub-§8, ¶B, as amended by PL 2005, c. 659, §4 and 
affected by §6, is further amended to read: 
B.  If For evidence gathered prior to January 1, 1988, 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 pursuant to subsection 10. 
Sec. 3.  15 MRSA §2138, sub-§8, ¶C is enacted to read: 
C.  For evidence gathered on or after January 1, 1988, if the results of the DNA 
analysis show that the person is not the source of the evidence and the DNA analysis 
is evidence material to the crime, there is a rebuttable presumption that the DNA 
subject to the analysis is from the perpetrator of the crime and the DNA analysis is 
admissible at a hearing on the person's motion for new trial under subsection 10. 
Sec. 4.  15 MRSA §2138, sub-§10, as repealed and replaced by PL 2005, c. 659, 
§5 and affected by §6, is amended to read: 
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, at the hearing on the motion filed under subsection 1 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 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 prerequisites 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 preferred 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. 
In a hearing in a motion for new trial under this subsection, if the results of the DNA 
analysis is material evidence in the underlying crime, that court shall consider this 
evidence together with all the other evidence in the case, old and new, admitted in the 
hearing, likely to influence a conclusion regarding the person's guilt or innocence, when 
granting or denying the motion. 
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 of the DNA sample. 
Sec. 5.  15 MRSA §2138, sub-§14, as enacted by PL 2001, c. 469, §1, is amended 
to read: 
14.  Preservation of biological evidence.  Effective October 15, 2001, the 
investigating law enforcement agency shall preserve any biological evidence identified 
during the investigation of a crime or crimes for which any person may file a 
postjudgment of conviction motion for DNA analysis under this section.  The evidence 
must be preserved for the period of time that any person is incarcerated in connection 
with that case.  For evidence gathered on or after January 1, 1988, if the State fails to 
preserve evidence subject to the court's order under this subsection, it is prima facie 
evidence that the DNA testing is favorable to the person filing the motion under 
subsection 1. 
SUMMARY 
This bill requires, in a post-judgment conviction motion for DNA analysis, that: 
1.  If the State fails to preserve biological evidence or evidence of a DNA analysis 
gathered on or after January 1, 1988 that is subject to a court order for new trial, then it is 
considered prima facie evidence favorable to the person bringing the motion; 
2.  For evidence gathered on or after January 1, 1988, if the results of the DNA 
analysis show that the person is not the source of the evidence and the DNA analysis is 
evidence material to the crime, there is a rebuttable presumption that the DNA subject to 
the analysis is from the perpetrator of the crime and the DNA analysis is admissible at a 
hearing on the person's motion for new trial; and 
3. In a hearing in a motion for new trial, if the results of the DNA analysis is material 
evidence in the underlying crime, the court shall consider this evidence together with all 
the other evidence in the case, old and new, admitted in the hearing, likely to influence a 
conclusion regarding the person's guilt or innocence, when granting or denying the 
motion.