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Rule 4-710 – Disposition of Petition After a Hearing

May 13, 2021 | Criminal Prodcedure, Maryland

(a) DNA Testing.

(1)Denial of Petition. The court shall deny a petition for DNA testing if it finds that:

(A) the State has made an adequate search for scientific identification evidence that is related to the judgment of conviction, that no such evidence exists within its possession or within its ability to acquire from a third party on its own initiative or by court order, and that no such evidence that the State was required by law or applicable protocol to preserve was intentionally and willfully destroyed; or
(B) scientific identification evidence exists but the method of testing requested by petitioner is not generally accepted in the relevant scientific community, or that there is no reasonable probability that DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing.
(2)Grant of Petition.

(A) Order for DNA Testing. The court shall order DNA testing if (i) the State agrees to the testing, or (ii) after considering the petition, the answer by the State’s Attorney, any response by the petitioner, and any evidence adduced at a hearing on the petition, the court finds that specific scientific identification evidence exists that is related to the judgment of conviction and there is a reasonable probability that the requested testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing.
(B) Contents of Order.

(i) An order for DNA testing shall:

(a) designate the specific evidence to be tested;
(b) specify the method of testing to be used;
(c) specify the laboratory where the testing is to be performed, provided that, if the parties cannot agree on a laboratory, the court may approve testing at any laboratory accredited by the American Society of Crime Laboratory Directors, the Laboratory Accreditation Board, or the National Forensic Science Technology Center;
(d) require that the laboratory send a report of the results of the testing as well as the raw data and the laboratory notes to the petitioner and the State’s Attorney; and
(e) contain a provision concerning the payment of the cost of the testing.
(ii) An order for DNA testing also may:

(a) provide for the release of biological evidence by a third party;
(b) require the preservation of some of the sample for replicate testing and analysis or, if that is not possible, the preservation of some of the DNA extract for testing by the State; and
(c) contain any other appropriate provisions.

Cross reference: Code, Courts Article, § 10-915.

(3)Inability of State to Produce Scientific Evidence. If the State is unable to produce scientific evidence that the State was required to preserve pursuant to Code, Criminal Procedure Article, § 8-201(j) or former Code, Criminal Procedure Article, § 8-201(i), and the court, after a hearing, determines that the failure to produce evidence was the result of intentional and willful destruction, the court shall:

(i) if no post conviction proceeding was previously filed by the petitioner under Code, Criminal Procedure Article, § 7-102, open such a proceeding;
(ii) if a post conviction proceeding is currently pending, permit the petitioner to amend the petition in that proceeding in light of the court’s finding; or
(iii) if a post conviction proceeding was previously filed by petitioner under Code, Criminal Procedure Article, § 7-102, but is no longer pending, reopen the proceeding under Code, Criminal Procedure Article, § 7-104.

At any such post conviction hearing, the court shall infer that the results of the post conviction DNA testing would have been favorable to the petitioner.

(b) DNA Database or Log Search. The court shall order a database or log search by a law enforcement agency for the purpose of identifying the source of physical evidence used for DNA testing if (i) the State agrees to the search, or (ii) after considering the petition, the answer by the State’s Attorney, any response by the petitioner, and any evidence adduced at a hearing on the petition, the court finds that a reasonable probability exists that the database or log search will produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing. In all other cases, the court shall deny the petition.

Md. Crim. Causes. 4-710

This Rule is new.

Adopted Sept. 10, 2009, eff. Oct. 1, 2009.