HB 270-FN - AS INTRODUCED
2021 SESSION
21-0075
04/05
HOUSE BILL 270-FN
AN ACT relative to post-conviction DNA testing.
SPONSORS: Rep. Conley, Straf. 13; Rep. Schapiro, Ches. 16; Rep. Moran, Hills. 34; Rep.
Cushing, Rock. 21
COMMITTEE: Criminal Justice and Public Safety
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ANALYSIS
This bill amends the statute governing post-conviction DNA testing procedures.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
 HB 270-FN - AS INTRODUCED
21-0075
04/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
AN ACT relative to post-conviction DNA testing.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 1 Post-Conviction DNA Testing of Biological Material. Amend RSA 651-D:2 to read as follows:
2 651-D:2 Post-Conviction DNA Testing of Biological Material.
3 I. A person in custody, on probation or parole, or whose liberty is otherwise
4 restrained as a result of a conviction or adjudication as a delinquent pursuant to the
5 judgment of the court may, notwithstanding RSA 526:4, at any time after conviction or
6 adjudication as a delinquent, petition the superior court in the county of conviction for forensic
7 DNA testing of any biological material. The petition shall, under penalty of perjury:
8 (a) Explain why the identity of the petitioner was or should have been a significant issue
9 during court proceedings notwithstanding the fact that the petitioner may have pled guilty or nolo
10 contendere, or made or is alleged to have made an incriminating statement or admission as to
11 identity.
12 (b) Explain why, in light of all the circumstances, the requested DNA testing will
13 exonerate the petitioner and demonstrate his or her innocence by proving that the petitioner has
14 been misidentified as the perpetrator of, or accomplice to, the crime for which the petitioner was
15 convicted.
16 (c) Make every reasonable attempt to identify [both] the evidence that should be tested
17 [and the specific type of DNA testing which is sought].
18 (d) Explain why the evidence sought to be tested by the petitioner was not previously
19 subjected to DNA testing, or explain how the evidence can be subjected to retesting with different
20 DNA techniques that provide a reasonable probability of reliable and probative results.
21 I-a. If the superior court determines that an indigent petitioner has met the
22 requirements of paragraph I, it shall appoint counsel to represent such petitioner in any
23 further proceedings under this section.
24 II. The court shall notify the office of the attorney general, or the county attorney who
25 prosecuted the case, of a petition made under this section and shall afford an opportunity to respond.
26 Upon receiving notice of a petition made under this section, the attorney general, or county attorney
27 who prosecuted the case, shall take such steps as are necessary to ensure that any remaining
28 biological material obtained in connection with the case or investigation is preserved pending the
29 completion of proceedings under this section and shall inform the petitioner regarding the
30 location and condition of evidence in their possession that was obtained in relation to the
31 underlying case, regardless of whether it was introduced at trial. Items discoverable at
 HB 270-FN - AS INTRODUCED
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1 trial under the New Hampshire rules of criminal procedure shall be made available to the
2 petitioner.
3 III. After a hearing, the court [may] shall order DNA testing pursuant to an application
4 made under this section upon finding that the petitioner has established each of the following factors
5 by [clear and convincing] a preponderance of the evidence:
6 (a) The evidence to be tested was secured in relation to the investigation or prosecution
7 that resulted in the petitioner's conviction or sentence, and is available and in a condition that would
8 permit the DNA testing that is requested in the motion.
9 (b) The evidence to be tested has been subject to a chain of custody sufficient to establish
10 it has not been substituted, tampered with, replaced, or altered in any material aspect.
11 (c) The evidence sought to be tested is material to the issue of the petitioner's identity as
12 the perpetrator of, or accomplice to, the crime.
13 (d) DNA results of the evidence sought to be tested would be material to the issue of the
14 petitioner's identity as the perpetrator of, or accomplice to, the crime that resulted in his or her
15 conviction or sentence.
16 (e) If the requested DNA testing produces exculpatory results, the testing will constitute
17 new, noncumulative material evidence that [will exonerate the petitioner by establishing that he or
18 she was misidentified as the perpetrator or accomplice to the crime] there is a reasonable
19 probability the petitioner would not have been convicted.
20 (f) The evidence sought to be tested was not previously tested using DNA technology or
21 the [technology requested was not available at the time of trial] type of testing sought is capable
22 of producing new or more informative results.
23 (g) If DNA or other forensic testing previously was done in connection with the case, the
24 requested DNA test would provide results that are new or [significantly] more [discriminating]
25 informative and probative on a material issue of identity, and would have a reasonable probability
26 of contradicting prior test results.
27 (h) The testing requested employs a method generally accepted within the relevant
28 scientific community.
29 [(i) The motion is timely and not unreasonably delayed.]
30 IV. If the court grants the motion for DNA testing, the court's order shall:
31 (a) Identify the specific evidence to be tested and the DNA technology to be used.
32 (b) If the court ordered different testing than requested by the petitioner, the court shall
33 explain why the different test was ordered.
34 (c) Designate the New Hampshire state police forensic laboratory to conduct the test.
35 However, the court, upon a showing of good cause, may order testing by another laboratory or agency
36 [accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board
37 (ASCLD/LAB) or the National Forensic Science Training Center] that conforms to the current
 HB 270-FN - AS INTRODUCED
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1 version of ISO/IEC 17025 requirements, the appropriate quality assurance standards
2 required by the Federal Bureau of Investigation, and to forensic-specific requirements, and
3 accredited by an organization that is a signatory to the International Laboratory
4 Accreditation Cooperation Mutual Recognition Arrangements for Testing Laboratories, if
5 requested by the petitioner. The laboratory shall give equal access to its personnel, opinions,
6 conclusions, reports, and other documentation to the prosecuting attorney and the
7 petitioner. Consumptive testing shall not occur except upon written permission by both the
8 prosecutor and petitioner or by a specific order of the court.
9 (d) [Repealed.]
10 V. The cost of DNA testing ordered under this section shall be paid by the petitioner, or by
11 the state, if the petitioner is indigent as determined by the court. [The court may appoint counsel for
12 an indigent petitioner under this section.]
13 VI.(a) If the results of DNA testing conducted under this section are unfavorable to the
14 petitioner, the court shall dismiss the application and in cases where the petitioner was convicted of
15 a sexual offense, the court shall forward the test results to the New Hampshire state prison, sex
16 offender program.
17 (b) In addition to any other substantive or procedural remedies provided by applicable
18 law, if the results of DNA testing conducted under this section are favorable to the petitioner, and
19 notwithstanding RSA 526:4, the court shall order a hearing and shall enter any order that serves
20 the interests of justice, including an order vacating and setting aside the judgment, discharging the
21 petitioner if the petitioner is in custody, resentencing the petitioner, or granting a new trial.
22 VII. Nothing in this chapter shall be construed to limit the circumstances under which a
23 person may obtain DNA testing or other post-conviction relief under any other provision of state or
24 federal law.
25 2 Effective Date. This act shall take effect 60 days after its passage.
 LBA
21-0075
11/3/20
HB 270-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to post-conviction DNA testing.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
Estimated Increase / (Decrease)
STATE: FY 2021 FY 2022 FY 2023 FY 2024
Appropriation $0 $0 $0 $0
Revenue $0 $0 $0 $0
Indeterminable Indeterminable Indeterminable
Expenditures $0
Increase Increase Increase
Funding Source: [ X ] General [ ] Education [ ] Highway [ ] Other
METHODOLOGY:
This bill amends the statute governing post-conviction DNA testing procedures. The Judicial
Council indicates post-conviction DNA testing currently applies to individuals who are in
custody. The bill expands availability of DNA testing to individuals on probation, parole, or
anyone whose liberty is otherwise restrained. The bill would guarantee the right to court
appointed counsel if the superior court grants a petition for forensic DNA testing of biological
material and the petitioner is indigent. The Council is unable to predict either the number of
additional cases or the associated cost. However, based on information from the Department of
Safety, only a small number of the annual DNA test performed are for post-conviction matters.
While the cost is indeterminable, the Council anticipates an insignificant increase in
expenditures.
The Department of Safety indicates the fiscal impact of the bill on state expenditures is
indeterminable and will depend on the number of petitions that will meet the criteria in
proposed RSA 651-D:2, III. Frequently, DNA testing cannot be performed by the State Police
Forensic Laboratory and must be sent to a private laboratory at an additional cost to the
requestor or the State.
The Judicial Branch makes the following assumptions concerning the fiscal impact of this bill:
· The bill broadens the eligibility requirements to petition the Superior Court for authorization
to proceed with DNA testing of evidence related to a conviction or adjudication.
· The bill eliminates any potential argument that there are time limits related to petitions for
authorization to proceed with DNA testing of evidence related to a conviction or adjudication.
 · The bill changes the appointment-of-counsel terms of the law from discretionary to
mandatory if certain basic conditions are met by a petitioner. This is likely to result in the
involvement of more appointed counsel in these proceedings and will likely increase the
length of time the proceedings take to get to a final disposition and will likely to increase the
in-court time for these proceedings.
· Because the bill changes the standard of review for petitions for post-conviction DNA testing
in two important ways that are more favorable to the petitioner, it is reasonable to assume
that anyone who has filed a previous petition for post-conviction DNA testing and who has
had their petition denied by the court would file a new petition under the new law.
· The bill would change the procedure in the courts to require the court to hold a hearing on a
petition. Under existing law the decision as to whether a hearing will be held is left to the
discretion of the trial court. This will increase the number of hearings held in connection
with petitions for post-conviction DNA testing.
The Judicial Branch does not have available statistics on the annual number motions for post-
conviction DNA testing. Without manually going through each file, the Branch cannot
determine how many motions for post-conviction DNA testing are filed each year. However
anecdotally, court staff indicate that these petitions are exceedingly rare, likely because the
identity of an offender is not regularly the issue in a sexual assault case in New Hampshire.
However, the bill would make these petitions more likely to occur, lowers the standard of proof
required to prevail, and requires that the court appoint counsel and hold in-court proceedings to
address the petitions. The Branch indicates these petitions are rare, the bill is likely to increase
the number petitions filed and a few more hearings would not be enough to have a fiscal impact.
The Branch assumes this increase in workload would likely be adsorbed by the Judicial Branch
within existing resources.
There would be no impact on state, county or local revenue or county and local expenditures.
It is assumed the fiscal impact of this bill will not occur until FY 2022.
AGENCIES CONTACTED:
Judicial Council, Department of Safety and Judicial Branch


Statutes affected:
Introduced: 651-D:2
Ought to Pass: 651-D:2
latest version: 651-D:2