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Bar Journal - September 1, 2003

House Bill 640: Proposed Statute on Post-Conviction DNA Testing


One of the unexpected results of advances in DNA testing technology has been the demonstration of shortcomings in our criminal justice system. "While no accurate study has been conducted to determine the exact number of erroneous convictions, we now know there have been more than a few cases in which innocent Defendants have languished in prison-some on death row-for years after their erroneous convictions were upheld at every stage of the appellate process."1 Eyewitness testimony, once considered the most reliable form of evidence has, at times, proven unreliable.2 Older forms of scientific evidence are now appearing flawed as well.3 As a result of these weaknesses, the criminal justice system needs new ways of increasing the reliability and accuracy of evidence. The availability of DNA testing has made it possible to decisively confirm or undermine some past criminal convictions. It has also raised issues about preserving physical evidence from criminal investigations so that improved scientific tests could be performed in the future. Both concerns are addressed in House Bill 640, presently in committee awaiting action in the next legislative session.4


Securing a DNA test is apparently not difficult for a New Hampshire prisoner with a plausible reason to have it. While there is no specific statute, rule, or Supreme Court opinion on point, the procedure is for the prisoner to file a Motion to Reopen and Bring Forward the original case, and for an order to perform testing. A fairly recent example arising in Merrimack County could become a model. It is State v. Breest,5 in which the prisoner serving a life sentence under a 1972 conviction for first-degree murder sought DNA testing of material found under the victims' fingernails. After a hearing, the Court (McGuire, J.) granted the motion and entered an order specifying how the tests were to be conducted. The Court's analysis drew on cases involving statutory motions for new trial as discussed below.

The Breest proceedings have not gone beyond testing, so consequences of favorable test results are speculative. If they were to clearly exonerate the prisoner, the State could join in some appropriate action to remedy the situation. However, if the results are significant but debatable, or if for some reason the State did not favor further action, the nature of the prisoner's remedy could depend on the time since conviction. There is a statute permitting a new trial based on "newly discovered evidence."6 The issue is raised by petition to the superior court in the county where the judgment was rendered,7 and must be filed within three years of the judgment of conviction.8 The standard stated in the statute is quite general: "when through accident, mistake or misfortune justice has not been done and a further hearing would be equitable."9 However, a line of cases has developed an additional three-part test. The petition must allege: (1) that the Defendant was not at fault for not discovering the evidence at the former trial; (2) that the evidence is admissible, material to the merits and not cumulative; and (3) that the evidence is of such a character that a different result will probably be reached upon another trial.10 The decision to grant a new trial based solely on newly discovered evidence is a question of fact for the trial court11 and the burden is on the Defendant to show that justice requires a new trial.

The obvious flaw in the statutory procedure is the three-year statute of limitation. Taking it literally, a Defendant convicted before 2000 in a case that contained biological material would not have the chance for a new trial based on test results, even if a test were performed and the results favorable. This general three-year limitation is arguably sound in most cases, as over time witnesses drift away, memories fail, evidence is disposed of, and the process becomes more costly. However, DNA material, if gathered and stored properly, will be as reliable three years or three hundred years later and could help prove the innocence of a wrongly convicted individual.

In Breest the State urged the need for finality but apparently did not rely on the three-year limitation. It was not literally applicable as the question was whether to test, not whether to grant a new trial. However, the court applied the traditional standards from the new trial statute to the threshold question of whether to secure new evidence while making no mention of the three-year limitation.12 In a motion for reconsideration the State urged that the proper standard on a motion for testing was the stringent "actual innocence" rule from federal habeas corpus decisions, but the court held that even if that were the proper standard, favorable results from the requested test could meet it.13 Whether the three-year bar should be construed to imply a discovery rule or is consistent with due process are questions which have apparently not yet been addressed, nor do there appear to be any New Hampshire decisions on whether there is some alternative to the new trial statute, such as habeas corpus.

The Superior Court appears ready and able to blend statutory and inherent power in a common-sense fashion to deal with the issues raised by new DNA technology, but the path is not yet clearly charted. The question for the next legislative session is whether it is appropriate now to chart that path by statute, and if so, whether House Bill 640 is the best approach.


Recognizing the seriousness of possible wrongful convictions, the New Hampshire House of Representatives' Committee on Criminal Justice and Public Safety has been considering a proposed new Chapter 651-C: "Post-Conviction DNA Testing." Originally introduced in the 2002 session, it was reintroduced as House Bill 640 last January and has been retained in Committee for consideration in the coming session.14 The intent of the proposed statute is to "permit a person to petition the court for post-conviction DNA testing of biological material under certain circumstances."15

As presently worded it would also repeal the current law requiring testing of those convicted of violent and sexual offenses16 (a topic outside the scope of this article), create a new post-conviction procedure for raising claims of innocence on any ground, and mandate that in all future cases the state "preserve any biological material obtained in connection with a criminal or delinquency investigation or prosecution for 5 years, or as long as any person connected with that case or investigation remains in custody, whichever is longer."17 There are also provisions comparable to existing law regarding the custody, confidentiality, and use of the DNA database.

The sponsors of HB 640 invite New Hampshire to take a large step toward realizing the potential value of biological science for quick and accurate crime solving. The step may be unrealistically large. A comparison of the proposed RSA 651-C with other state statutes and with current New Hampshire law and practice on testing and new trials suggests several areas of concern, particularly a shortage of resources. This article will address the bill's provisions regarding who can apply for DNA testing (and when), the criteria for granting such testing, the provisions for retaining all biological material from future investigations, and the general provision for attacking convictions on grounds other than DNA testing.


The post-conviction testing part of the bill has four stages: the application (and some determination it meets three threshold requirements), notification of the prosecutor (who is to have an opportunity to respond),18 a decision by the court on whether to order testing,19 and, if there are "favorable" test results, a hearing preparatory to entering "any order that serves the interests of justice."20 It is silent on whether there is to be a hearing at the earlier stages.

HB 640 does not restrict who can make an application for DNA testing. It is open to any "person in custody ... at any time after conviction or adjudication as a delinquent."21 There are only three limitations on a Defendant's request for DNA testing. It is permitted when any biological material: (1) is related to the investigation or prosecution that resulted in the judgment; (2) is in the actual or constructive possession of this state or the United States or has been retained by any other person under conditions sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any respect material to the DNA testing; and (3) was not previously subjected to DNA testing, or can be subjected to retesting with different DNA techniques that provide a reasonable probability of reliable and probative results.22 The term "biological material" is not defined. If these three conditions are met, the Court is obliged to notify the prosecutor and consider the application. Factual disputes about each of these threshold requirements are foreseeable, and presumably will have to be decided by the court.

In contrast, the very lack of a statutory checklist under present procedure and the choice in Breest to set a fairly high bar in deciding whether to order testing may be some filter against weak or frivolous applications. There is at least a subtle and perhaps a significant difference between individualized appeals to judicial discretion and a categorical statutory procedure. The Legislature should be mindful of the possible number of prisoners in custody whose cases could involve "biological material...related to the investigation or prosecution"23 and the potential costs of this program. Some further restrictions are likely to be necessary if current practice is to be supplanted by statute.

There are at least three ways other states limit applications for post-conviction testing: by seriousness of the offense, by time, and by issues presented in the original trial. States such as New York, Indiana, Louisiana, Maryland and Tennessee only allow testing for those convicted of capital offenses and facing life in prison or death sentences.24 Several states have imposed limitations not only by the crime committed, but also by fixing a time-period for filing a motion and affidavit.

The third way to reduce the number of post-conviction applications eligible for review is to confine them to cases of disputed identity. The comparable Texas statute requires a showing that the identity of the perpetrator was at issue at trial and that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained by DNA testing.25 While most erroneous convictions occur because of inaccurate eyewitness identification,26 identity may not have been an issue in all cases with DNA evidence and is certainly not in issue in all cases with "biological material". The hazard with the Texas requirement is that there may be cases (perhaps involving false confessions, certainly involving false guilty pleas) where identity was not originally put in issue but has since become doubtful. Requiring the Defendant to show that identity was originally disputed or, for extraordinary reasons, should be so now would limit post-conviction relief to those Defendants whose cases could actually have turned on DNA evidence. In Breest the Court concluded the original prosecution and trial turned on uncertain identity evidence that could be decisively undercut by favorable DNA results.27 This requirement would allow New Hampshire to simultaneously address the need for a post-conviction DNA statute and legitimately limit the potential number of cases for review. It should be addressed in any new statutory scheme.

HB 640 also lacks a limit on the timing and frequency of applications for testing (except where the particular material to be tested has already been analyzed with currently adequate techniques). Presumably the courts would develop some requirement that applications cover all items that the applicant then had reason to believe would merit testing, and perhaps a waiver rule to prevent unreasonable delay. The courts are already capable of doing this. As the main advantage to be had by legislating is to save the trouble and uncertainty of case-by-case refinement, some language on this point seems appropriate. The Legislature should also impose a due diligence requirement or a specific time-period in which a Defendant may file an application. A due diligence requirement allows the court to exercise its discretion in determining whether the circumstances warrant granting the Defendant's request. This again would limit the number of post-conviction applications in a manner consistent with the goal of the proposed statute. A realistic time requirement to file a request coupled with a discovery rule for new technologies would also satisfy the requirements of justice and meet the needs of post-conviction inmate.

Without limitations of this sort, anyone in custody in New Hampshire could apply for DNA testing at any time, potentially causing a serious drain on resources and a backlog in the court system. The New Hampshire Forensic Laboratory has indicated to the House Committee on Criminal Justice and Public Safety that it shares this concern about the breadth of the proposed statute. As written, a potentially unlimited number of requests for DNA testing can be made, increasing the amount of evidence to be kept and stored in addition to the actual work of performing the tests. In order to narrow its scope, the Legislature should rewrite section 651-C:2.I. of the proposed statute.


When presented with a proper application, the court would determine whether "testing may produce non-cumulative evidence materially relevant to the claim of the applicant that the applicant was wrongfully convicted, wrongfully adjudicated as a delinquent, or wrongfully sentenced."28 While it may ultimately sort out substantially the same cases, this criterion seems to invite more uncertainty and argument than a threshold requirement that identity be shown to be at issue. And, unlike the current standards for a new trial, there is no exclusion when the applicant is at fault for not securing testing for the former trial. While a defendant can hardly be expected to use a scientific test until it has been developed and accepted by the courts, after each new technology becomes known those who neglect to use it at trial should obviously be barred from raising the issue later. The proposed standard for authorizing a test also differs from the current requirement that alleged new evidence be such that "a different result will probably be reached."29 While the decision to discover new evidence by testing is different from that to grant a new trial on evidence already secured and proffered to the court, the potential significance of favorable test results is largely known in advance. The "material relevance" standard may be intended to produce the same result as the "probably different result" rule, but if so, there seems no reason to abandon established language.

The decision whether to order testing is likely to be the point of most controversy, yet the only hearing provided for in the bill is after a test had been ordered and has produced favorable results. Given the range of remedies the court may order ("including an order vacating and setting aside the judgment, discharging the applicant..., resentencing the applicant, or granting a new trial")30 such a hearing will be appropriate in some cases. However, evaluating the initial application and deciding whether to test are critical stages determining not only the fate of the applicant but also the degree to which public resources will be further invested in the case. These are the stages where the balancing of interests will be most critical and where the Breest procedure is focused. The bill should give them more attention.

If very many tests are in fact ordered, an existing bottleneck will become worse. Currently the only state-funded laboratory capable of conducting DNA sample testing is the New Hampshire State Police Forensic Lab.31 In June 2000, the Forensic Lab's DNA laboratory became accredited.32 According to the Year 2001 Annual Report, the DNA lab was already experiencing unavoidable delays in providing test results due to the tremendous demands placed upon it.33 That year the Forensics Laboratory tested evidence in 7160 investigations, and performed 108 DNA sample tests.34 It is unrealistic to believe that the current facility can hope to address or fund the barrage of DNA test requests that will surely result from the passage of this new legislation. Only a realistic funding bill attached to the legislation for an increase in the lab's equipment and personnel will make the implementation of the legislation possible.


As written, HB 640 would require the state to preserve any "biological material" obtained in connection with a criminal investigation for five years, or as long as the person connected with the case is in custody, whichever is longer.35 The provision is remarkably vague, with no indication how the state is to do this, a serious oversight given that local officers conduct most criminal investigations. Assuming the intergovernmental logistics could be worked out, this requirement would put tremendous strain on the state's Forensic Laboratory which would have to maintain and store thousands of samples that may never be at issue in a case. The State Police Forensic Lab currently conducts tests on evidence for approximately "two hundred fifty-nine local police departments, nine state law enforcement agencies, ten county sheriffs' departments, and numerous local fire departments and occasional federal law enforcement."36 Presently material is tested and preserved as the need arises, not in every case where there is "any biological material." Perhaps the drafters intend only to preserve the biological material that comes into state custody in the ordinary course of an investigation, but that is not the current language. It can be expected that every defense counsel will insist that any potential source of biological evidence, in any case, be stored by the state on the chance that a future, improved DNA test might invalidate the conviction. The logic of the requirement applies not only to obviously biological material such as hair, blood, semen, saliva, and skin cells, but also to any physical evidence on which such material could someday be detected. The impracticality and expense of such a requirement for every criminal investigation are obvious.

The proposed statute also gives the Department of Safety the responsibility to promulgate procedural rules and set up an infrastructure to implement the goals of the legislation.37 The database alone that the proposed statute creates is enormous, and this one aspect of the project will be as costly as the similar sexual offender database.


Presumably anticipating flawed convictions revealed by future scientific advances and human error, the sponsors of HB 640 have included a new procedure for challenging a conviction on the ground of "Actual Innocence."38 An application could be made "at any time" to the court which entered judgment producing evidence of the applicant's actual innocence. The court would have discretion to hold a hearing or to order scientific or forensic testing. The criterion for relief is that the applicant, "establish his or her innocence of the crime." This part of the bill contains none of the requirements for a new trial under current law (RSA 526). Nor does it have a due diligence clause or time limit, matters of even greater concern when creating a procedure applicable to claims of innocence on any grounds. To the extent legislators are concerned about technological developments or factual discoveries beyond the current three year limit for petitions for new trial, it would seem that amending RSA 526:4 to provide an exception for highly credible evidence discovered after three years but promptly acted upon would better meet that need.


Although it is very new and there are many questions the courts have not yet addressed, post-conviction DNA testing is already available in New Hampshire. If, in the absence of legislation, Breest becomes the model, testing will likely be confined to a few meritorious cases. The proposed statute raises the prospect of routine, facially sufficient applications for testing in any case with preserved biological material.

The cost for implementing HB 640 as written cannot be adequately anticipated even if one were to disregard the creation of a broad new mechanism for challenging any conviction. The Department of Safety has speculated that the bill will increase the department's expenditures by $325, 717 in fiscal year 2004, $101, 718 in FY 2005, $105, 618 in FY 06 and $106, 900 in FY 107.39 The fiscal impact to the Judicial Branch is uncertain, as there can be only a crude estimate of the number of individuals who will avail themselves of the new law. However, there will be an increase in the number of hearings and appeals, an increase in clerical processing, and an increase in time to write the decisions.40 The Department of Justice also anticipates an increase in the production of documents, research, travel, overtime and the workload.41 The Department of Corrections is unable to predict the cost for implementation, as it would depend on what will be required by the employees in regard to collecting DNA samples and the housing of the individuals.42 There is a potential for a tremendous fiscal impact.

As important as it is to make dramatic, highly reliable scientific advances available to those who may have been wrongly convicted, House Bill 640 needs refinement. A realistic appraisal of the State's resources may also require prioritization among current inmates and caution in imposing evidence retention requirements in future cases. Justice can hardly be served by the empty promise of an unworkable or unfunded statutory scheme.



Lauri Constantine et al., Model Prevention and Remedy of Erroneous Convictions Act, 33 Ariz. St. L. Rev. 665, 666 (2001).


Saks, Michael J. Toward a Model Act for the Prevention and Remedy of Erroneous Convictions, 35:3 New Eng. L. Rev. 669, 671-72 (2001).




As indicated later in the article, H.B. 640 would also repeal the current mandatory DNA testing of convicted sexual or violent offenders and create a new post-conviction remedy in cases of evidence of any sort showing innocence.


State v. Breest, No. 72-S-789 (Merrimack Co.Super. Ct., motion granted Dec. 11, 2000, order specifying testing procedure entered Jan. 1, 2001)


N.H. RSA526:1 "provides that a new trial may be granted in any case where through accident, mistake, or misfortune, justice has not been done, and a further hearing would be equitable." This statute covers both civil and criminal judgments.


N.H. RSA526:2. Parties sometimes proceed by motion, which the Court will treat as a petition under the statute. Bricker v. Sceva Speare Mem. Hosp., 115 N.H. 709, 350 A.2d 623.


N.H. RSA526:4.


N.H. RSA526:1


State v. Dewitt, 143 N.H. 24, 28-9, 719 A. 2d 570, 573 (1998) (citing State v. Steed, 140 N.H. 153, 157, 665 A. 2d 1072, 1076 (1995)). See, State v. Abbott, 127 N.H. 444, 450, 503 A. 2d 791, 795 (1985) and State v. Kelly, 120 N.H. 904, 906, 424 A.2d. 820, 822 (1980).


State v. Kelly, 120 N.H. 904, 906, 424 A.2d. 820, 822 (1980).


State v. Breest, No. 72-S-789 (Merrimack Co., Super. Ct., Order of Dec. 11, 2000).


Id., First Order of Jan. 5, 2002.


N.H. H.B. 1258, 2001 Leg. Reg. Sess. (2001). On November 8, 2002, the New Hampshire Legislature, after an Interim Report, decided that the proposal be referred for the Legislature in 2003. It was reintroduced as H.B. 640, 2003 Leg. Reg. Sess. (2003) and referred to the Committee on Criminal Justice and Public Safety. On March 11, 2003 it was retained in Committee.


H.B. 640, Analysis by Legislative Services of Proposed N.H. R.S.A. 651-C (2003).


HB 640. The first line repeals all of RSA 651-C and the current language of 2 is not reenacted. This appears to be intended, as the corresponding definitions of "sexual offender" and "violent crime" are also missing from the proposed new definition section.


N.H. H.B. 640, proposed section RSA 651-C:3.


Proposed 2 II requires that the court, upon receipt of an application, notify the U.S. Attorney for the district of New Hampshire. Most states only require that the Defendant serve a copy of the Motion on the prosecutor that tried the case or the Attorney General's office. While this writer suspects that the reference to the U.S. Attorney is a typographical error, if unchanged this designation could render the statute unenforceable. There may be some scope for federal cooperation where evidence is or has been in federal custody, but the current reference to the U.S. Attorney does not seem addressed to that possibility.


N.H. H.B. 640, proposed section RSA 651-C:2. Post-Conviction DNA Testing of Biological Material.


Id. at proposed V (b).


Id. at proposed I.


Id. at proposed I (a-c).




N.Y. Crim. Proc. Law 440.30 (McKinney Supp. 1995), Ind. Code Ann. 35-38-7-1  (LEXIS L. Publg. 2001), La. Crim. Code Ann. Art. 926.1 (2001), Md. Crim. Code Ann. 8-201 (2001); Tenn. Code Ann. 40-30-403-13 (2001).


TX Crim Proc. Art. 64.01 (2001).


Michael J. Saks, Toward a Model Act for the Prevention and Remedy of Erroneous Convictions, 35:3 N. England L. Rev. 669, 671 (2001) (citing Barry Scheck, et. al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted 246 (2000)).


State v. Breest, No. 72-S-789 (Merrimack Co., Super. Ct., Order of Dec. 11, 2000).


N.H. H.B. 640, proposed section RSA 651-C:2 III.


State v. Dewitt, 143 N.H. 24, 28-9, 719 A. 2d 570, 573 (1998).


N.H. H.B. 640, proposed section RSA 651-C:2 V (b).


N.H. State Police, 2001 Annual Report , p. 42.






Id. at 44.


N.H. H.B. 640, proposed section RSA 651-C:3: Preservation of Biological Material for DNA testing.




N. H. H.B. 640, proposed section RSA 651-C:6 Dissemination of Information in DNA Database.


N.H. H.B. 640, proposed section RSA 651-C:4.


N.H. H.B. 604, Fiscal Note.







The Author

Sigrid Tejo, Class of 2003, Franklin Pierce Law Center, Concord, New Hampshire.



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