Supreme Court of Missouri
en banc
February 20, 2001
Effective September 1, 2001
In re:Adoption of a new subdivision 29.17, entitled "Post-conviction Motion for Forensic DNA Testing not Available at Trial," of Supreme Court Rule 29, entitled "Misdemeanors or Felonies -- Verdict, Sentence and New Trial."
ORDER
1. It is ordered that effective September 1, 2001, subdivision 29.17 of Supreme Court Rule 29 be and the same is hereby adopted to read as follows:29.17 POST-CONVICTION MOTION FOR FORENSIC DNA
TESTING NOT AVAILABLE AT TRIAL
(a) A person in custody of the department of corrections claiming that forensic DNA testing will demonstrate the person's innocence of the crime for which the person is in custody may file a post-conviction motion in the sentencing court seeking such testing. The procedure to be followed for such motions is governed by the rules of civil procedure insofar as applicable.
(b) The motion must allege facts under oath demonstrating that:
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(l) There is evidence upon which DNA testing can be conducted; and
(2) The evidence was secured in relation to the crime; and
(3) The evidence was not previously tested by the movant because:
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(A) The technology for the testing was not reasonably available to the movant at the time of the trial; or
(B) Neither the movant nor his trial counsel was aware of the existence of the evidence at the time of trial; or
(C) The evidence was otherwise unavailable to both the movant and movant's trial counsel at the time of trial; and
(5) The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect; and
(6) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing.
(c) Movant shall file the motion and two copies thereof with the clerk of the sentencing court. The clerk shall file the motion in the original criminal case and shall immediately deliver a copy of the motion to the prosecutor.
(d) The court shall issue to the prosecutor an order to show cause why the motion should not be granted unless:
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(1) It appears from the motion that the movant is not entitled to relief; or
(2) The court finds that the files and records of the case conclusively show that the movant is not entitled to relief.
(e) Upon the issuance of the order to show cause, the clerk shall notify the court reporter to prepare and file the transcript of the trial or the movant's guilty plea and sentencing hearing if the transcript has not been prepared or filed.
(f) If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held.
If a hearing is ordered, counsel shall be appointed to represent the movant if the movant is indigent. The hearing shall be on the record.
Movant need not be present at the hearing. The court may order that testimony of the movant shall be received by deposition.
The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.
(g) The court shall order appropriate testing if the court finds:
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(1) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing; and
(2) That movant is entitled to relief.
Such testing shall be conducted by a facility mutually agreed upon by the movant and by the state and approved by the court. If the parties are unable to agree, the court shall designate the testing facility.
The court shall impose reasonable conditions on the testing to protect the state's interests in the integrity of the evidence and the testing process.
(h) The court shall issue findings of fact and conclusions of law whether or not a hearing is held.
3. It is ordered that this order be published in the South Western Reporter.
Day - to - Day
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William Ray Price, Jr., Chief Justice