TITLE LXII
CRIMINAL CODE

Chapter 651-D
POST-CONVICTION DNA TESTING

Section 651-D:1

    651-D:1 Definitions. –
In this chapter:
I. "Department" means the department of safety.
II. "Division" means the division of state police, department of safety.
III. "DNA" means deoxyribonucleic acid.
IV. "DNA sample" means a blood, tissue, or hair follicle sample provided by any person or submitted to the division for analysis or storage or both.
V. "Investigating agency" means the law enforcement agency that investigated a case resulting in a conviction in which biological material was collected as evidence during the course of the investigation.

Source. 2004, 239:1, eff. June 15, 2004.

Section 651-D:2

    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 the evidence that should be tested.
(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 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 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 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 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 more 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.
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 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 is 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.
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.

Source. 2004, 239:1. 2010, 299:2, 3, 6, eff. Sept. 11, 2010. 2021, 49:1, eff. July 24, 2021.

Section 651-D:3

    651-D:3 Preservation of Biological Material for DNA Testing. –
I. The investigating agency shall preserve any biological material obtained in connection with a criminal or delinquency investigation or prosecution for 5 years from the date of conviction or adjudication, or as long as any person connected with that case or investigation remains in custody, whichever is longer.
II. The investigating agency may, however, petition the court to destroy or otherwise dispose of biological material after 5 years even if a person connected with the case is still in custody. If the investigating agency petitions the court to destroy evidence before the person is released from custody, the investigating agency must serve a copy of the petition to destroy biological evidence on the person who remains in custody, any counsel of record, and the prosecuting agency. The investigating agency may destroy biological material 90 days after filing a petition, unless the investigating agency receives:
(a) A court order preventing the destruction of biological evidence; or
(b) A motion to preserve biological evidence on the grounds that the person in custody intends to file a petition for post-conviction DNA testing pursuant to RSA 651-D:2 within 180 days of the motion to preserve.

Source. 2004, 239:1, eff. June 15, 2004.

Section 651-D:4

    651-D:4 DNA Testing and Analysis. –
I. The DNA testing and analysis under this chapter shall be performed under the direction of the division, following procedures in conformance with the federal "DNA Identification Act of 1994." Identifying characteristics of the resulting DNA profile shall be stored and maintained by the division consistent with division policy.
II. The division shall prescribe procedures to be used in the collection, submission, identification, analysis, storage, and disposition of DNA samples and all DNA information obtained pursuant to this chapter.
III. The division may contract with third parties for the purposes of this chapter. Any DNA sample sent to third parties for analysis shall be coded to maintain confidentiality concerning the donor of the sample.
IV. A certificate and the results of the analysis shall be admissible in any court as evidence of the facts stated in the analysis.

Source. 2004, 239:1, eff. June 15, 2004.

Section 651-D:5

    651-D:5 Victim Services. – When post-conviction DNA testing is being considered by the court, the state shall, upon request, reactivate victim services for the victim of the crime being reinvestigated during the reinvestigation of the case, during the pendency of the proceedings, and, as determined by the court after consultation with the victim and/or victim advocate, following final adjudication of the case.

Source. 2010, 299:1, eff. Sept. 11, 2010.