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Subchapter 001: POSTCONVICTION DNA TESTING
§ 5561. Petition for postconviction DNA testing
(a) A person convicted of a qualifying crime may at any time file a petition requesting
forensic DNA testing of any evidence that may contain biological evidence that was
obtained during the investigation or prosecution of the crime. The petition shall:
(1) specifically identify the crime for which the petitioner asserts that he or she is
innocent and the evidence which the petitioner seeks to have subjected to DNA testing;
(2) contain the petitioner’s certification, under oath, that the petitioner did not commit
the crime for which he or she was convicted;
(3) contain the petitioner’s certification, under oath, that the petition is true and
accurate; and
(4) allege facts showing that DNA testing may be material to the petitioner’s claim of
innocence.
(b) As used in this section:
(1) “Biological evidence” means:
(A) a sexual assault forensic examination kit; or
(B) semen, blood, saliva, hair, skin tissue, or other identified biological material.
(2) “Person convicted of a qualifying crime” means a person convicted of:
(A) one of the following crimes as defined in this title:
(1) arson causing death, § 501;
(2) assault and robbery with a dangerous weapon, § 608(b);
(3) assault and robbery causing bodily injury, § 608(c);
(4) aggravated assault, § 1024;
(5) murder, § 2301;
(6) manslaughter, § 2304;
(7) aggravated murder, § 2311;
(8) kidnapping, § 2405;
(9) unlawful restraint, §§ 2406 and 2407;
(10) maiming, § 2701;
(11) sexual assault, § 3252;
(12) aggravated sexual assault, § 3253;
(13) burglary into an occupied dwelling, § 1201(c); or
(14) lewd and lascivious conduct with a child, § 2602.
(B) any felony not listed in subdivision (b)(1) of this section, if the petition is filed
within 30 months after the conviction becomes final, the person presents specific
facts demonstrating that DNA evidence will provide substantial evidence of the person’s
innocence, and the court finds that the interests of justice would be served by permitting
the petition.
(c)(1) The petition shall be filed in the Superior Court of the county where the conviction
was imposed, and shall not be heard by a judge who presided over the trial, sentencing,
or any motion hearing related to evidence to be admitted at the trial.
(2)(A) Unless subdivision (B) of this subdivision (2) applies, the petitioner shall provide
copies of the petition to the Attorney General and to the State’s Attorney in the
district where the conviction was obtained.
(B) If the petitioner is not represented by counsel, the court shall provide copies of
the petition to the Attorney General and to the State’s Attorney in the district where
the conviction was obtained.
(3) Within 30 days after it receives the petition, the State shall agree to perform the
requested DNA testing in a timely manner or file a response to the petition. The petitioner
may file a reply to the State’s response only within 30 days after the response is
filed.
(4) The court shall schedule a hearing on the petition within 90 days after the State’s
response is filed unless the State notifies the court that it has agreed to provide
the testing in a timely manner or the court dismisses the petition pursuant to subsection
(d) of this section.
(5) Time limits under this subsection may be extended for good cause shown or by consent
of the parties.
(d) The court shall dismiss the petition without a hearing if it determines that:
(1) the petition, response, reply if any, files, and records conclusively establish that
the petitioner is entitled to no relief; or
(2) the petition was not made to demonstrate innocence or the appropriateness of a lesser
sentence and will unreasonably delay the execution of sentence or administration of
justice.
(e) No person shall file a petition requesting forensic DNA testing pursuant to this chapter
if the person’s conviction resulted from a plea agreement until after July 1, 2008. (Added 2007, No. 60, § 1.)
§ 5562. Assignment of counsel
The court may appoint counsel if the petitioner is unable financially to employ counsel
and may order that all necessary costs and expenses incident to the matter, including
court costs, stenographic services, printing, and reasonable compensation for legal
services, be paid by the State from the appropriation to the Defender General. On
appeal, the Supreme Court may make a similar order. (Added 2007, No. 60, § 1.)
§ 5563. Victim notification
(a) If the address of a victim of the crime that the petitioner claims to be innocent
of in the petition is known, the State’s Attorney or Attorney General shall give written
notice of a petition under this section to the victim upon the victim’s request. If
the victim’s current address is not known, the State’s Attorney or the Attorney General
shall consult with the Department of Corrections Victim Services Division to verify
the victim’s last known address. The notice shall be by any reasonable means to the
victim’s last known address and shall indicate whether the petitioner is represented
by public or private counsel. Upon the victim’s request, the State’s Attorney or Attorney
General shall give the victim notice of the time and place of any hearing on the petition
and shall inform the victim of the disposition of the petition and the outcome of
any hearing. If DNA testing is ordered, the State’s Attorney or the Attorney General
shall inform the victim whether the test results require further court hearings, the
time and place of any hearings, and the outcome of the hearings.
(b) The rights of victims contained in this section do not entitle a victim to be a party
in any proceeding, or to any procedural rights that are not specifically provided
for in this section, including any right to request a delay or rescheduling of any
proceeding. (Added 2007, No. 60, § 1.)
§ 5564. Discovery
(a) Upon motion by the petitioner or the State, and after providing the nonmovant with
reasonable opportunity to respond to the motion, the court may permit reasonable discovery
and the right to depose witnesses. The court in its discretion may delay ruling on
any discovery motions until after it has determined whether to dismiss the petition
pursuant to subsection 5561(d) of this section.
(b) A discovery order issued pursuant to this section may include the following:
(1) The court may order the State to locate and provide the petitioner with any documents,
notes, logs, or reports relating to items of physical evidence collected in connection
with the case or to help the petitioner locate items of biological evidence that the
State contends have been lost or destroyed. The court may further order the State
to take reasonable measures to locate biological evidence that may be in its custody
or to help the petitioner locate evidence that may be in the custody of a public or
private hospital, public or private laboratory, or other facility.
(2) If evidence has previously been subjected to DNA testing, the court may order production
of laboratory reports prepared in connection with the testing and may order production
of the underlying data and the laboratory notes.
(3) If any DNA or other biological evidence testing was previously conducted by either
the prosecution or the defense without knowledge of the other party, the court may
order that the previous testing be disclosed.
(4) If the court orders DNA testing under this subchapter, the court shall order the production
of any laboratory reports prepared in connection with the testing and may order production
of the underlying data, bench notes, or other laboratory notes. (Added 2007, No. 60, § 1.)
§ 5565. [Reserved.]
§ 5566. Order; necessary findings; confidentiality
(a) The court shall grant the petition and order DNA testing if it makes all of the following
findings:
(1) A reasonable probability exists that the petitioner would not have been convicted
or would have received a lesser sentence for the crime that the petitioner claims
to be innocent of in the petition if the results of the requested DNA testing had
been available to the trier of fact at the time of the original prosecution.
(2) One or more of the items of evidence that the petitioner seeks to have tested is still
in existence.
(3) The evidence to be tested was obtained in connection with the offense that is the
basis of the challenged conviction and:
(A) was not previously subjected to DNA testing; or
(B) although previously subjected to DNA testing, can be subjected to additional DNA testing
that provides a reasonable likelihood of significantly more probative results.
(4)(A)(i) The chain of custody of the evidence to be tested establishes that the evidence has
not been tampered with, replaced, or altered in any material respect; or
(ii) if the chain of custody does not establish the integrity of the evidence, the testing
itself has the potential to establish the integrity of the evidence.
(B) For purposes of this subchapter, evidence that has been in the custody of a law enforcement
agency, a governmental body, or a public or private hospital shall be presumed to
satisfy the chain-of-custody requirement of this subdivision.
(b) The court may designate in its order:
(1) the type of DNA analysis to be used;
(2) the testing procedures to be followed;
(3) the preservation of some portion of the sample for replicating the testing;
(4) additional DNA testing, if the results of the initial testing are inconclusive or
otherwise merit additional scientific analysis.
(c) DNA profile information from biological samples taken from any person pursuant to
a petition under this subchapter shall be confidential except for use and dissemination
consistent with this chapter and 20 V.S.A. chapter 113, and shall be exempt from any
law requiring disclosure of information to the public. (Added 2007, No. 60, § 1.)
§ 5567. Appeals
An order entered on the petition may be appealed to the Vermont Supreme Court pursuant
to the Rules of Appellate Procedure. (Added 2007, No. 60, § 1.)
§ 5568. Choice of laboratory; payment
(a) If the court orders DNA testing under this subchapter, the testing shall be conducted
at a facility mutually agreed upon by the petitioner and the State and approved by
the court. If the parties are unable to agree, the court shall designate the testing
facility and provide the parties with a reasonable opportunity to be heard on the
issue.
(b) The court shall impose reasonable conditions on the testing to protect the parties’
interests in the integrity of the evidence and the testing process.
(c)(1) The State shall bear the costs of testing performed at the state crime laboratory.
(2) Except as provided in subdivision (3) of this subsection, the court may require the
petitioner or the State, or both, to pay for testing performed at a private laboratory.
(3) If the State Crime Laboratory does not have the ability or resources to conduct the
type of DNA testing to be performed, the State shall bear the costs of testing at
a private laboratory that does have such capabilities or resources. (Added 2007, No. 60, § 1.)
§ 5569. Procedure after test results obtained
(a) The results of any postconviction DNA testing conducted pursuant to this subchapter
shall be disclosed to the State’s Attorney, the Attorney General, the Department of
Corrections if the petitioner is under the Department’s custody or supervision, the
petitioner, and the court.
(b) If the results of forensic DNA testing ordered under this subchapter support the facts
alleged in the petition, the court shall schedule a hearing as soon as practicable
after the results are received to determine the appropriate relief to be granted.
The petitioner and the State shall be permitted to submit motions and be heard at
the hearing.
(c) At or subsequent to the hearing, the court may issue an order including the following:
(1) setting aside or vacating the petitioner’s judgment of conviction;
(2) granting the petitioner a new trial;
(3) granting the petitioner a new sentencing hearing;
(4) discharging the petitioner from custody;
(5) specifying the disposition of any evidence that remains after the completion of the
testing;
(6) granting the petitioner additional discovery on matters related to DNA test results
or the conviction or sentence under attack, including documents pertaining to the
original criminal investigation and the identities of other suspects; or
(7) providing such other relief as the court deems appropriate.
(d) If, as a result of DNA evidence, the person’s conviction for an offense is reversed
or vacated, the information or indictment is dismissed, the person is acquitted after
a second or subsequent trial, or the person is pardoned:
(1) The court shall order the removal and destruction of the person’s name and any information
about that conviction from the Sex Offender Registry established under section 5402 of this title, the Child Abuse Registry established under 33 V.S.A. § 4916, the Vulnerable Adult Registry established under 33 V.S.A. § 6911, and any other registry on which the person’s name appears solely because of his
or her conviction of that offense. If the person has more than one entry on a registry,
only the entry related to the offense for which, as a result of DNA evidence, the
person’s conviction was reversed or vacated, the information or indictment was dismissed,
the person was acquitted after a second or subsequent trial, or the person received
a pardon shall be removed and destroyed.
(2) It shall not be a violation of Vermont law for the person to respond, when asked,
that he or she has never previously been convicted of a crime, and that his or her
innocence of the crime charged has been established. This subdivision shall not apply
if the person has been convicted of a crime other than the one for which, as a result
of DNA evidence, the person’s conviction was reversed, the information or indictment
was dismissed, the person was acquitted after a second or subsequent trial, or the
person was pardoned.
(e) An order issued under this section may be appealed to the Vermont Supreme Court pursuant
to the Rules of Appellate Procedure. (Added 2007, No. 60, § 1.)
§ 5570. Successive petitions
(a) The court shall not be required to entertain a second or successive petition for similar
relief on behalf of the same petitioner unless it appears the petition will be assisted
by the availability of more advanced DNA technology.
(b) The court may entertain a second or successive petition if it determines that doing
so would serve the interests of justice. (Added 2007, No. 60, § 1.)
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Subchapter 002: COMPENSATION FOR WRONGFUL CONVICTIONS
§ 5572. Right of action; procedure
(a) A person convicted and imprisoned for a crime of which the person was exonerated pursuant
to this chapter shall have a cause of action for damages against the State.
(b) An action brought under this subchapter shall be filed in Washington County Superior
Court. Notice of the action shall be served upon the Attorney General.
(c) The Vermont Rules of Civil Procedure shall apply to actions brought under this subchapter,
and the plaintiff shall have a right to trial by jury. The Vermont Rules of Appellate
Procedure shall apply to appeals from orders and judgments issued under this subchapter.
(d) The Attorney General may consider, adjust, determine, and settle any claim for damages
brought against the State of Vermont under this subchapter. (Added 2007, No. 60, § 1; amended 2015, No. 133 (Adj. Sess.), § 5, eff. May 25, 2016.)
§ 5573. Complaint
(a) A complaint filed under this subchapter shall be supported by facts and shall allege
that:
(1) the complainant has been convicted of a felony crime, been sentenced to a term of
imprisonment, and served at least six months of the sentence in a correctional facility;
and
(2) the complainant was exonerated through the complainant’s conviction being reversed
or vacated, the information or indictment being dismissed, the complainant being acquitted
after a second or subsequent trial, or the granting of a pardon.
(b) The court may dismiss the complaint, upon its own motion or upon motion of the State,
if it determines that the complaint does not state a claim for which relief may be
granted. (Added 2007, No. 60, § 1; amended 2013, No. 126 (Adj. Sess.), § 4.)
§ 5574. Burden of proof; judgment; damages
(a) A claimant shall be entitled to judgment in an action under this subchapter if the
claimant establishes each of the following by clear and convincing evidence:
(1) The complainant was convicted of a felony crime, was sentenced to a term of imprisonment,
and served at least six months of the sentence in a correctional facility.
(2)(A) the complainant’s conviction was reversed or vacated, the complainant’s information
or indictment was dismissed, or the complainant was acquitted after a second or subsequent
trial; or
(B) the complainant was pardoned for the crime for which he or she was sentenced.
(3) The complainant is actually innocent of the felony or felonies that are the basis
for the claim. As used in this chapter, a person is “actually innocent” of a felony
or felonies if he or she did not engage in any illegal conduct alleged in the charging
documents for which he or she was charged, convicted, and imprisoned.
(4) The complainant did not fabricate evidence or commit or suborn perjury during any
proceedings related to the crime with which he or she was charged.
(b) A claimant awarded judgment in an action under this subchapter shall be entitled to
damages in an amount to be determined by the trier of fact for each year the claimant
was incarcerated, provided that the amount of damages shall not be less than $30,000.00
nor greater than $60,000.00 for each year the claimant was incarcerated, adjusted
proportionally for partial years served. The damage award may also include:
(1) economic damages, including lost wages and costs incurred by the claimant for his
or her criminal defense and for efforts to prove his or her innocence;
(2) up to 10 years of eligibility for State-funded health coverage equivalent to Medicaid
services;
(3) compensation for any reasonable reintegrative services and mental and physical health
care costs incurred by the claimant for the time period between his or her release
from mistaken incarceration and the date of the award;
(4) reasonable attorney’s fees and costs for the action brought under this subchapter.
(c) Damages awarded under this section:
(1) shall not be subject to any State taxes, except for the portion of the judgment awarded
as attorney’s fees; and
(2) shall not be offset by any services awarded to the claimant pursuant to this section
or by any expenses incurred by the State or any political subdivision of the State,
including expenses incurred to secure or maintain the claimant’s custody or to feed,
clothe, or provide medical services for the claimant.
(d) The claimant’s acceptance of a damages award, compromise, or settlement as a result
of a claim under this subchapter shall be in writing and, except when procured by
fraud, shall be final and conclusive on the claimant, and constitute a complete release
by the claimant of any claim against the State and a complete bar to any action by
the claimant against the State with respect to the same subject matter.
(e) A claimant shall be entitled to compensation under this subchapter only for the years
in which he or she would not otherwise have been incarcerated for another sentence. (Added 2007, No. 60, § 1; amended 2013, No. 79, § 16, eff. Jan. 1, 2014; 2013, No. 126 (Adj. Sess.), § 5; 2015, No. 5, § 3, eff. April 9, 2015.)
§ 5575. Payment
(a) Any award made or compromise or settlement against the State of Vermont agreed upon
by the Attorney General in response to an action brought under this subchapter shall
be paid by the State Treasurer out of the treasury, and the Emergency Board shall
reimburse the State Treasurer therefor from time to time.
(b) If the State elects to self-insure for liability as defined in 12 V.S.A. § 5601, any award, compromise, or settlement against the State of Vermont agreed to by the
Attorney General shall be paid by the Treasurer from the liability self-insurance
fund.
(c) To the extent that an award, settlement, or compromise is covered by a policy of liability
insurance, payment will be governed by the terms of the policy. (Added 2007, No. 60, § 1.)
§ 5576. Limitations
(a) Except as provided in subsection (b) of this section, an action for compensation under
this subchapter shall be commenced within three years after the person is exonerated
pursuant to subchapter 1 of this chapter through the person’s conviction being reversed
or vacated, the information or indictment being dismissed, the person being acquitted
after a second or subsequent trial, or through the granting of a pardon.
(b)(1) If the State challenges the exoneration of a person entitled to bring an action under
this subchapter, the limitations period shall not commence until the challenge is
finally resolved.
(2) If a person entitled to bring an action under this subchapter is not provided the
notice required by section 5577 of this title, the person shall have an additional year within which to bring the action. (Added 2007, No. 60, § 1.)
§ 5577. Notice of right of action
(a) A copy of this subchapter shall be provided to a person by a court:
(1) exonerating a person pursuant to subchapter 1 of this chapter through vacating or
reversing the person’s conviction, dismissing the information or indictment, entering
judgment on an acquittal after a second or subsequent trial; or
(2) receiving notice of a pardon.
(b) A person receiving a copy of this subchapter pursuant to subsection (a) of this section
shall be required to acknowledge its receipt in writing on a form established by the
Court Administrator. The acknowledgement shall be entered on the docket by the court
and shall be admissible in an action filed under this subchapter. (Added 2007, No. 60, § 1.)
§ 5578. Applicability; retroactivity
Notwithstanding 1 V.S.A. § 214(b), this subchapter and any amendments thereto shall apply to any exoneration that occurs
on or after July 1, 2007. (Added 2015, No. 133 (Adj. Sess.), § 6, eff. May 25, 2016.)