HOUSE AMENDED PRIOR PRINTER'S NOS. 627, 1041, 1052, PRINTER'S NO. 2107 1183
No. 589 Session of 2001
INTRODUCED BY GREENLEAF, HELFRICK, COSTA, LEMMOND, GERLACH, M. WHITE, BOSCOLA, KUKOVICH, O'PAKE, JUBELIRER, MELLOW, FUMO, HOLL, HUGHES, KITCHEN, LAVALLE, MADIGAN, MURPHY, MUSTO, PUNT, SCHWARTZ, STACK, TARTAGLIONE, THOMPSON, TOMLINSON, A. WILLIAMS, WOZNIAK AND BRIGHTBILL, MARCH 9, 2001
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 18, 2002
AN ACT 1 Amending Title 42 (Judiciary and Judicial Procedure) of the 2 Pennsylvania Consolidated Statutes, providing FOR PERMISSIBLE <-- 3 ARGUMENT AS TO DAMAGES AT TRIAL AND for postconviction DNA 4 testing. 5 The General Assembly of the Commonwealth of Pennsylvania 6 hereby enacts as follows: 7 Section 1. Title 42 of the Pennsylvania Consolidated <-- 8 Statutes is amended by adding a section to read: 9 SECTION 1. TITLE 42 OF THE PENNSYLVANIA CONSOLIDATED <-- 10 STATUTES IS AMENDED BY ADDING SECTIONS TO READ: 11 § 8315. PERMISSIBLE ARGUMENT AS TO DAMAGES AT TRIAL. 12 (A) GENERAL RULE.--EXCEPT AS PROVIDED IN SUBSECTION (B), IN 13 ANY CIVIL ACTION TRIED BEFORE A JUDGE, JURY OR OTHER TRIBUNAL, 14 AN ATTORNEY DURING CLOSING ARGUMENT: 15 (1) MAY SPECIFICALLY ARGUE IN LUMP SUMS OR BY 16 MATHEMATICAL FORMULAE THE AMOUNT HE DEEMS TO BE AN
1 APPROPRIATE AWARD FOR ALL PAST AND FUTURE ECONOMIC OR 2 NONECONOMIC DAMAGES OR BOTH ECONOMIC AND NONECONOMIC DAMAGES 3 CLAIMED TO BE RECOVERABLE. 4 (2) MAY, ON BEHALF OF A DEFENDANT, ARGUE TO THE JUDGE, 5 JURY OR OTHER TRIBUNAL THAT AN AWARD OF ZERO DAMAGES IS 6 APPROPRIATE, EVEN IF THERE IS A FINDING OF LIABILITY AGAINST 7 THE DEFENDANT. 8 (B) PRIOR DISCLOSURE REQUIRED.-- 9 (1) NO PARTY MAY ARGUE A SPECIFIC SUM AS PROVIDED IN 10 SUBSECTION (A) UNLESS THE PARTY FIRST DISCLOSES TO THE COURT 11 AND OPPOSING COUNSEL THAT THE PARTY INTENDS TO ARGUE THE 12 SPECIFIC DAMAGES LISTED IN SUBSECTION (A) PRIOR TO THE 13 PRESENTATION OF CLOSING ARGUMENTS. 14 (2) NOTHING IN THIS SUBSECTION SHALL BE CONSTRUED TO 15 PREVENT A DEFENDANT FROM ARGUING IN ANY CASE THAT THE FACTS 16 AND EVIDENCE SUPPORT A FINDING OF NO LIABILITY. 17 (3) NOTWITHSTANDING PARAGRAPH (1), ARGUMENTS AS TO 18 APPROPRIATE AMOUNT OF ECONOMIC DAMAGES MAY BE MADE WITHOUT 19 NOTICE TO OPPOSING COUNSEL IF EVIDENCE SUPPORTING ECONOMIC 20 DAMAGES HAS BEEN INTRODUCED AT TRIAL. 21 (C) JURY INSTRUCTION.--WHENEVER, IN A CIVIL ACTION TRIED 22 BEFORE A JURY, SPECIFIC LUMP SUMS OR MATHEMATICAL FORMULAE ARE 23 ARGUED DURING CLOSING ARGUMENTS AS PROVIDED FOR IN SUBSECTION 24 (A), THE TRIAL COURT SHALL INSTRUCT THE JURY THAT THE SUMS OR 25 MATHEMATICAL FORMULAE ARGUED ARE NOT EVIDENCE BUT ONLY ARGUMENTS 26 AND THAT THE DETERMINATION OF THE AMOUNT OF APPROPRIATE DAMAGES 27 TO BE AWARDED, IF ANY, IS SOLELY FOR THE JURY'S DETERMINATION. 28 § 9543.1. Postconviction DNA testing. 29 (a) Motion.-- 30 (1) An individual convicted of a criminal offense in a 20010S0589B2107 - 2 -
1 court of this Commonwealth and serving a term of imprisonment 2 or awaiting execution because of a sentence of death may 3 apply by making a written motion to the sentencing court for 4 the performance of forensic DNA testing on specific evidence 5 that is related to the investigation or prosecution that 6 resulted in the judgment of conviction. 7 (2) The evidence may have been discovered either prior 8 to or after the applicant's conviction. The evidence shall be 9 available for testing as of the date of the motion. If the 10 evidence was discovered prior to the applicant's conviction, 11 the evidence shall not have been subject to the DNA testing 12 requested because the technology for testing was not in 13 existence at the time of the trial, or the applicant's 14 counsel did not seek testing at the time of the trial in a 15 case where a verdict was rendered on or before January 1, 16 1995, or the applicant's counsel sought funds from the court 17 to pay for the testing because his client was indigent and 18 the court refused the request despite the client's indigency. 19 (b) Notice to the Commonwealth.-- 20 (1) Upon receipt of a motion under subsection (a), the 21 court shall notify the Commonwealth and shall afford the 22 Commonwealth an opportunity to respond to the motion. 23 (2) Upon receipt of a motion under subsection (a) or 24 notice of the motion, as applicable, the Commonwealth and the 25 court shall take the steps reasonably necessary to ensure 26 that any remaining biological material in the possession of 27 the Commonwealth or the court is preserved pending the 28 completion of the proceedings under this section. 29 (c) Requirements.--In any motion under subsection (a), under 30 penalty of perjury, the applicant shall: 20010S0589B2107 - 3 -
1 (1) (i) specify the evidence to be tested; 2 (II) STATE THAT THE APPLICANT CONSENTS TO PROVIDE <-- 3 SAMPLES OF BODILY FLUID FOR USE IN THE DNA TESTING; AND 4 (III) ACKNOWLEDGE THAT THE APPLICANT UNDERSTANDS 5 THAT IF THE MOTION IS GRANTED ANY DATA OBTAINED FROM ANY 6 DNA SAMPLES OR TEST RESULTS MAY BE ENTERED INTO LAW 7 ENFORCEMENT DATABASES, MAY BE USED IN THE INVESTIGATION 8 OF OTHER CRIMES AND MAY BE USED AS EVIDENCE AGAINST THE 9 APPLICANT IN OTHER CASES. 10 (ii) assert the applicant's actual innocence of the <-- 11 (2) (I) ASSERT THE APPLICANT'S ACTUAL INNOCENCE OF THE <-- 12 offense for which the applicant was convicted; AND <-- 13 (iii) in a capital case, assert the applicant's <-- 14 (II) IN A CAPITAL CASE: <-- 15 (A) ASSERT THE APPLICANT'S actual innocence of 16 the charged or uncharged conduct constituting an 17 aggravating circumstance under section 9711(d) 18 (relating to sentencing procedure for murder of the 19 first degree), if the applicant's exoneration of the 20 conduct would result in vacating a sentence of death; 21 or 22 (iv) in a capital case, assert that the outcome of <-- 23 (B) ASSERT THAT THE OUTCOME OF the DNA testing <-- 24 would establish a mitigating circumstance under 25 section 9711(e)(7) when IF that mitigating <-- 26 circumstance was presented to the sentencing judge or 27 jury and facts as to that issue were in dispute at 28 the sentencing hearing. 29 (2) (3) Present a prima facie case demonstrating that <-- 30 the: 20010S0589B2107 - 4 -
1 (i) identity of or the participation in the crime by 2 the perpetrator was at issue in the proceedings that 3 resulted in the applicant's conviction and sentencing; 4 and 5 (ii) DNA testing of the specific evidence, assuming 6 exculpatory results, would establish: 7 (A) the applicant's actual innocence of the 8 offense for which the applicant was convicted; 9 (B) in a capital case, the applicant's actual 10 innocence of the charged or uncharged conduct 11 constituting an aggravating circumstance under 12 section 9711(d), if the applicant's exoneration of 13 the conduct would result in vacating a sentence of 14 death; or 15 (C) in a capital case, a mitigating circumstance 16 under section 9711(e)(7) under the circumstances set 17 forth in subsection (c)(1)(iv). 18 (d) Order.-- 19 (1) Except as provided in paragraph (2), the court shall 20 order the testing requested in a motion under subsection (a) 21 under reasonable conditions designed to preserve the 22 integrity of the evidence and the testing process, upon a 23 determination, after review of the record of the applicant's 24 trial, that the: 25 (i) requirements of subsection (c) have been met; 26 (ii) evidence to be tested has been subject to a 27 chain of custody sufficient to establish that it has not 28 been altered in any material respect; and 29 (iii) motion is made in a timely manner and for the 30 purpose of demonstrating the applicant's actual innocence 20010S0589B2107 - 5 -
1 and not to delay the execution of sentence or 2 administration of justice. 3 (2) The court shall not order the testing requested in a 4 motion under subsection (a), if after review of the record of 5 the applicant's trial, the court determines that there is no 6 reasonable possibility that the testing would produce 7 exculpatory evidence that: 8 (i) would establish the applicant's actual innocence 9 of the offense for which the applicant was convicted; 10 (ii) in a capital case, would establish the 11 applicant's actual innocence of the charged or uncharged 12 conduct constituting an aggravating circumstance under 13 section 9711(d), if the applicant's exoneration of the 14 conduct would result in vacating a sentence of death; or 15 (iii) in a capital case, would establish a 16 mitigating circumstance under section 9711(e)(7) under 17 the circumstances set forth in subsection (c)(1)(iv). 18 (e) Testing procedures.-- 19 (1) Any DNA testing ordered under this section shall be 20 conducted by: 21 (i) a laboratory mutually selected by the 22 Commonwealth and the applicant; 23 (ii) if the Commonwealth and the applicant are 24 unable to agree on a laboratory, a laboratory selected by 25 the court that ordered the testing; or 26 (iii) if the applicant is indigent, the testing 27 shall be conducted by the Pennsylvania State Police or, 28 at the Pennsylvania State Police's sole discretion, by a 29 laboratory designated by the Pennsylvania State Police. 30 (2) The costs of any testing ordered under this section 20010S0589B2107 - 6 -
1 shall be paid: 2 (i) by the applicant; or 3 (ii) in the case of an applicant who is indigent, by 4 the Commonwealth of Pennsylvania. 5 (f) Posttesting procedures.-- 6 (1) After the DNA testing conducted under this section 7 has been completed the applicant may, pursuant to section 8 9545(b)(2) (relating to jurisdiction and proceedings), during 9 the 60-day period beginning on the date on which the 10 applicant is notified of the test results, petition to the 11 court for postconviction relief pursuant to section 12 9543(a)(2)(vi) (relating to eligibility for relief). 13 (2) Upon receipt of a petition filed under paragraph 14 (1), the court shall consider the petition, along with any 15 answer filed by the Commonwealth, and shall conduct a hearing 16 thereon. 17 (3) In any hearing on a petition for postconviction 18 relief filed under paragraph (1), the court shall determine 19 whether the exculpatory evidence resulting from the DNA 20 testing conducted under this section would have changed the 21 outcome of the trial as required by section 9543(a)(2)(vi). 22 (G) EFFECT OF MOTION.--THE FILING OF A MOTION FOR FORENSIC <-- 23 DNA TESTING PURSUANT TO SUBSECTION (A) SHALL HAVE THE FOLLOWING 24 EFFECT: 25 (1) THE FILING OF THE MOTION SHALL CONSTITUTE THE 26 APPLICANT'S CONSENT TO PROVIDE SAMPLES OF BODILY FLUID FOR 27 USE IN THE DNA TESTING. 28 (2) THE DATA FROM ANY DNA SAMPLES OR TEST RESULTS 29 OBTAINED AS A RESULT OF THE MOTION MAY BE ENTERED INTO LAW 30 ENFORCEMENT DATABASES, MAY BE USED IN THE INVESTIGATION OF 20010S0589B2107 - 7 -
1 OTHER CRIMES AND MAY BE USED AS EVIDENCE AGAINST THE 2 APPLICANT IN OTHER CASES. 3 (g) (H) Definitions.--As used in this section, the following <-- 4 words and phrases shall have the meanings given to them in this 5 subsection: 6 "Applicant." The individual who files a motion under 7 subsection (a). 8 "DNA." Deoxyribonucleic acid. 9 Section 2. This act shall take effect in 60 days. B27L42JS/20010S0589B2107 - 8 -