AN ACT relative to post-conviction DNA testing.


SPONSORS: Rep. Conley, Straf. 13; Rep. Schapiro, Ches. 16; Rep. Moran, Hills. 34; Rep. Cushing, Rock. 21


COMMITTEE: Criminal Justice and Public Safety






This bill amends the statute governing post-conviction DNA testing procedures.


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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.






In the Year of Our Lord Two Thousand Twenty One


AN ACT relative to post-conviction DNA testing.


Be it Enacted by the Senate and House of Representatives in General Court convened:


1  Post-Conviction DNA Testing of Biological Material.  Amend RSA 651-D:2 to read as follows:

651-D:2  Post-Conviction DNA Testing of Biological Material.  

I.  A person in custody, on probation or parole, or whose liberty is otherwise restrained as a result of a conviction or adjudication as a delinquent pursuant to the judgment of the court may, notwithstanding RSA 526:4, at any time after conviction or adjudication as a delinquent, petition the superior court in the county of conviction for forensic DNA testing of any biological material.  The petition shall, under penalty of perjury:

(a)  Explain why the identity of the petitioner was or should have been a significant issue during court proceedings notwithstanding the fact that the petitioner may have pled guilty or nolo contendere, or made or is alleged to have made an incriminating statement or admission as to identity.

(b)  Explain why, in light of all the circumstances, the requested DNA testing will exonerate the petitioner and demonstrate his or her innocence by proving that the petitioner has been misidentified as the perpetrator of, or accomplice to, the crime for which the petitioner was convicted.

(c)  Make every reasonable attempt to identify [both] the evidence that should be tested [and the specific type of DNA testing which is sought].

(d)  Explain why the evidence sought to be tested by the petitioner was not previously subjected to DNA testing, or explain how the evidence can be subjected to retesting with different DNA techniques that provide a reasonable probability of reliable and probative results.

I-a.  If the superior court determines that an indigent petitioner has met the requirements of paragraph I, it shall appoint counsel to represent such petitioner in any further proceedings under this section.

II.  The court shall notify the office of the attorney general, or the county attorney who prosecuted the case, of a petition made under this section and shall afford an opportunity to respond.  Upon receiving notice of a petition made under this section, the attorney general, or county attorney who prosecuted the case, shall take such steps as are necessary to ensure that any remaining biological material obtained in connection with the case or investigation is preserved pending the completion of proceedings under this section and shall inform the petitioner regarding the location and condition of evidence in their possession that was obtained in relation to the underlying case, regardless of whether it was introduced at trial.  Items discoverable at trial under the New Hampshire rules of criminal procedure shall be made available to the petitioner.  

III.  After a hearing, the court [may] shall order DNA testing pursuant to an application made under this section upon finding that the petitioner has established each of the following factors by [clear and convincing] a preponderance of the evidence:

(a)  The evidence to be tested was secured in relation to the investigation or prosecution that resulted in the petitioner's conviction or sentence, and is available and in a condition that would permit the DNA testing that is requested in the motion.

(b)  The evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced, or altered in any material aspect.

(c)  The evidence sought to be tested is material to the issue of the petitioner's identity as the perpetrator of, or accomplice to, the crime.

(d)  DNA results of the evidence sought to be tested would be material to the issue of the petitioner's identity as the perpetrator of, or accomplice to, the crime that resulted in his or her conviction or sentence.

(e)  If the requested DNA testing produces exculpatory results, the testing will constitute new, noncumulative material evidence that [will exonerate the petitioner by establishing that he or she was misidentified as the perpetrator or accomplice to the crime] there is a reasonable probability the petitioner would not have been convicted.

(f)  The evidence sought to be tested was not previously tested using DNA technology or the [technology requested was not available at the time of trial] type of testing sought is capable of producing new or more informative results.

(g)  If DNA or other forensic testing previously was done in connection with the case, the requested DNA test would provide results that are new or [significantly] more [discriminating] informative and probative on a material issue of identity, and would have a reasonable probability of contradicting prior test results.

(h)  The testing requested employs a method generally accepted within the relevant scientific community.

[(i)  The motion is timely and not unreasonably delayed.]

IV.  If the court grants the motion for DNA testing, the court's order shall:

(a)  Identify the specific evidence to be tested and the DNA technology to be used.

(b)  If the court ordered different testing than requested by the petitioner, the court shall explain why the different test was ordered.

(c)  Designate the New Hampshire state police forensic laboratory to conduct the test.  However, the court, upon a showing of good cause, may order testing by another laboratory or agency [accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) or the National Forensic Science Training Center] that conforms to the current version of ISO/IEC 17025 requirements, the appropriate quality assurance standards required by the Federal Bureau of Investigation, and to forensic-specific requirements, and accredited by an organization that is a signatory to the International Laboratory Accreditation Cooperation Mutual Recognition Arrangements for Testing Laboratories, if requested by the petitioner.  The laboratory shall give equal access to its personnel, opinions, conclusions, reports, and other documentation to the prosecuting attorney and the petitioner.  Consumptive testing shall not occur except upon written permission by both the prosecutor and petitioner or by a specific order of the court.

(d)  [Repealed.]

V.  The cost of DNA testing ordered under this section shall be paid by the petitioner, or by the state, if the petitioner is indigent as determined by the court.  [The court may appoint counsel for an indigent petitioner under this section.]

VI.(a)  If the results of DNA testing conducted under this section are unfavorable to the petitioner, the court shall dismiss the application and in cases where the petitioner was convicted of a sexual offense, the court shall forward the test results to the New Hampshire state prison, sex offender program.

(b)  In addition to any other substantive or procedural remedies provided by applicable law, if the results of DNA testing conducted under this section are favorable to the petitioner, and notwithstanding RSA 526:4, the court shall order a hearing and shall enter any order that serves the interests of justice, including an order vacating and setting aside the judgment, discharging the petitioner if the petitioner is in custody, resentencing the petitioner, or granting a new trial.

VII.  Nothing in this chapter shall be construed to limit the circumstances under which a person may obtain DNA testing or other post-conviction relief under any other provision of state or federal law.

2  Effective Date.  This act shall take effect 60 days after its passage.









AN ACT relative to post-conviction DNA testing.


FISCAL IMPACT:      [ X ] State              [    ] County               [    ] Local              [    ] None




Estimated Increase / (Decrease)


FY 2021

FY 2022

FY 2023

FY 2024













Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Funding Source:

  [ X ] General            [    ] Education            [    ] Highway           [    ] Other







This bill amends the statute governing post-conviction DNA testing procedures.  The Judicial Council indicates post-conviction DNA testing currently applies to individuals who are in custody.  The bill expands availability of DNA testing to individuals on probation, parole, or anyone whose liberty is otherwise restrained.  The bill would guarantee the right to court appointed counsel if the superior court grants a petition for forensic DNA testing of biological material and the petitioner is indigent. The Council is unable to predict either the number of additional cases or the associated cost.  However, based on information from the Department of Safety, only a small number of the annual DNA test performed are for post-conviction matters. While the cost is indeterminable, the Council anticipates an insignificant increase in expenditures.


The Department of Safety indicates the fiscal impact of the bill on state expenditures is indeterminable and will depend on the number of petitions that will meet the criteria in proposed RSA 651-D:2, III.  Frequently, DNA testing cannot be performed by the State Police Forensic Laboratory and must be sent to a private laboratory at an additional cost to the requestor or the State.


The Judicial Branch makes the following assumptions concerning the fiscal impact of this bill:


The Judicial Branch does not have available statistics on the annual number motions for post-conviction DNA testing.  Without manually going through each file, the Branch cannot determine how many motions for post-conviction DNA testing are filed each year.  However anecdotally, court staff indicate that these petitions are exceedingly rare, likely because the identity of an offender is not regularly the issue in a sexual assault case in New Hampshire.  However, the bill would make these petitions more likely to occur, lowers the standard of proof required to prevail, and requires that the court appoint counsel and hold in-court proceedings to address the petitions.  The Branch indicates these petitions are rare,  the bill is likely to increase the number petitions filed and a few more hearings would not be enough to have a fiscal impact.  The Branch assumes this increase in workload would likely be adsorbed by the Judicial Branch within existing resources.  


There would be no impact on state, county or local revenue or county and local expenditures.


It is assumed the fiscal impact of this bill will not occur until FY 2022.



Judicial Council, Department of Safety and Judicial Branch