ASSEMBLY, No. 3994

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED MAY 9, 2011

 


 

Sponsored by:

Assemblyman  ALBERT COUTINHO

District 29 (Essex and Union)

Assemblyman  GORDON M. JOHNSON

District 37 (Bergen)

 

Co-Sponsored by:

Assemblyman O'Scanlon

 

 

 

 

SYNOPSIS

     Establishes preservation requirements for certain biological evidence.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning biological evidence and supplementing P.L.2001, c.377 (C.2A:84A-32a et al.).

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    For the purposes of this act: 

     “Biological evidence” means any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or other identifiable biological material that was collected as part of a criminal investigation or may reasonably be used to incriminate or exculpate any person for an offense, whether this material 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, and cigarettes; the term also shall include the contents of a sexual assault examination kit. 

     “Custody” means persons currently incarcerated, civilly committed, on parole or probation, or subject to sex offender registration.

     "Director” means the Director of the Division of Criminal Justice in the Department of Law and Public Safety.

     “DNA” means deoxyribonucleic acid.

     “Law enforcement or prosecuting agency” or “agency” means any governmental, public, or private person or entity within this State charged with the collection, storage, or retrieval of biological evidence, including, but not limited to law enforcement agencies, prosecutors’ offices, courts, public hospitals, and crime laboratories.  

     “Profile” means a unique identifier of a person which is derived from that person’s DNA. 

 

     2.    a.  A law enforcement or prosecuting agency shall preserve any biological evidence secured in relation to an investigation or prosecution of a crime while:

     (1)   the crime remains unsolved, or

     (2)   a person convicted of the crime remains in custody.

     b.    The provisions of this section shall apply to biological evidence that was in the possession of the agency during the investigation and prosecution of the case, and which, at the time of conviction, was likely to contain biological material.

     c.     The agency shall preserve and shall not destroy biological evidence if a co-defendant, convicted of the same crime, remains in custody. 

     d.    The agency shall retain evidence in an amount and in a manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence.

     e.     Upon written request of a defendant, the agency shall prepare an inventory of biological evidence that has been preserved in connection with the defendant’s criminal case.

     f.     The agency may destroy evidence that includes biological material before the expiration of the time period specified in subsection a. of this section if:

     (1)   no other provision of federal or State law requires the agency to preserve the evidence;

     (2)   the agency sends certified delivery of notice of intent to destroy the evidence to:

     (a)   all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to the evidence in question;

     (b)   the attorney of record for each person in custody;

     (c)   the public defender;

     (d)   the county prosecutor where the person was convicted; and

     (e)   the Attorney General; and

     (3)   a person notified pursuant to paragraph (2) of subsection f. of this section, within 180 days after the date of receipt of the notice, does not:

     (a)   file a motion for performance of forensic DNA testing under section 1 of P.L.2001 c.377 (C.2A:84A-32a); or

     (b)   submit a written request for retention of evidence to the agency which provided notice of its intent to destroy evidence under paragraph (2) of subsection f. of this section.

     g.     If the agency receives a written request for retention of biological evidence after providing notice under paragraph (2) of subsection f. of this section of its intent to destroy that evidence, the agency shall retain the evidence while the person remains in custody.

     h.     The agency shall not be required to preserve physical evidence that is of such a size, bulk, or physical character as to render retention impracticable. When such retention is impracticable, the agency 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 the physical evidence. 

 

     3.    a.  An agency shall be required to produce all biological evidence preserved pursuant to this act when requested by the trial court that entered the judgment of conviction or any other court of competent jurisdiction.  If the agency is unable to locate biological evidence that it is required to preserve under this act, the chief evidence custodian assigned to the entity charged with the preservation of the evidence shall provide, under penalty of perjury, an affidavit that describes the efforts taken to locate that evidence and that the evidence could not be located. 


     b.    A person who, prior to the effective date of P.L.    , c.   (C.      ) (pending before the Legislature as this bill), made a motion pursuant to section 1 of P.L.2001, c.377 (C.2A:84A-32a) for the performance of forensic DNA testing that was denied because the biological evidence to be tested could not be located, shall be entitled to submit a written request to the agency that a new search be conducted.  Within 30 days of the receipt of the written request, the agency shall conduct a thorough search for the missing evidence.  If the agency is able to locate the missing biological evidence during its search, it shall notify the person in writing within 10 days.  The person shall be entitled to submit a new motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing pursuant to section 1 of P.L.2001, c.377 (C.2A:84A-32a). If after a thorough search the agency is still unable to locate the missing biological evidence, the chief evidence custodian assigned to the entity charged with the preservation of the evidence shall, within 10 days, provide an affidavit to the person, under penalty of perjury, that describes the efforts taken to locate that evidence and that the evidence could not be located. 

 

     4.    Any person who by virtue of employment, or official position, has possession of, or access to, biological evidence and destroys, or otherwise tampers with, that evidence, or who knowingly fails to produce evidence in the agency’s custody in violation of the provisions of this act is guilty of a disorderly persons offense. 

 

     5.    The Attorney General shall promulgate guidelines and procedures as may be necessary to effectuate the purposes of this act including, but not be limited to: standards regarding the proper collection, retention, and cataloguing of biological evidence for ongoing investigations and prosecutions; recommended practices, protocols, models, and resources for cataloguing and accessing preserved biological evidence currently in the possession of the State; and training programs for law enforcement officers and other employees charged with preserving and cataloguing biological evidence regarding the methods and procedures outlined in this act. 

 

     6.    This act shall take effect on the first day of the seventh month after enactment and shall apply to biological evidence in the custody of any law enforcement or prosecuting agency on the effective date of this act.


STATEMENT

 

     This bill would require agencies responsible for collecting, storing, and retrieving biological evidence secured in relation to the investigation or prosecution of a crime to preserve that evidence while the crime remains unsolved or while a person convicted of the crime remains in the State’s custody.  In addition, the bill would require the agency to produce the preserved evidence at the request of the court.  For the purposes of the bill, biological evidence means any item that contains blood, semen, hair, saliva, skin, fingernail scrapings, bone, bodily fluids, or other identifiable biological material.

     The chief evidence custodian of an agency that could not locate evidence it was required to preserve under the bill, would be required, under penalty of perjury, to provide an affidavit that described the efforts taken to locate the evidence and that despite those efforts, the evidence could not be located. 

     Additionally the bill specifies that any inmate, who previously made a motion in court to have DNA testing conducted that was denied because the biological evidence could not be found, would be entitled to write to the agency to request a new search.  The agency would have 30 days to conduct such a search.  If the biological evidence is located as a result, the agency would have 10 days to notify the person who would be able to submit a new motion to the court to request DNA testing.  If the search did not locate the evidence, the chief evidence custodial would be required, under penalty of perjury, to provide an affidavit that described the efforts taken to locate the evidence and that despite those efforts, the evidence could not be located. 

     Any person who destroys, or otherwise tampers with evidence or who knowingly fails to produce evidence in the agency’s custody would be guilty of a disorderly persons offense.