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§ 17-103. Defense or postconviction counsel’s request for DNA testing and FGGS investigation

West's Annotated Code of MarylandCriminal ProcedureEffective: October 1, 2022

West's Annotated Code of Maryland
Criminal Procedure (Refs & Annos)
Title 17. Forensic Genealogy (Refs & Annos)
Effective: October 1, 2022
MD Code, Criminal Procedure, § 17-103
§ 17-103. Defense or postconviction counsel’s request for DNA testing and FGGS investigation
Currentness
In general
(a) A defendant in a criminal case charged with a crime of violence under § 14-101 of the Criminal Law Article or a defendant convicted of a crime of violence under § 14-101 of the Criminal Law Article and seeking postconviction DNA testing is entitled to seek judicial authorization for an FGGS by filing an affidavit with a trial court or postconviction court certifying that:
(1) the forensic sample to be subjected to the FGGS is biological material reasonably believed to have been deposited by a putative perpetrator and collected from:
(i) a crime scene;
(ii) a person, an item, or a location connected to the criminal event; or
(iii) the unidentified human remains of a suspected homicide victim;
(2) an STR DNA profile has already been developed from the forensic sample, was entered into the State DNA database system and the national DNA database system, and failed to identify a known individual;
(3) biological samples subjected to FGG DNA analysis, whether the forensic sample or third party reference samples, will not be used to determine the sample donor's genetic predisposition for disease or any other medical condition or psychological trait;
(4) an FGGS shall only be conducted using a direct-to-consumer or publicly available open-data personal genomics database that:
(i) provides explicit notice to its service users and the public that law enforcement may use its service sites to investigate crimes or to identify human remains; and
(ii) seeks acknowledgment and express consent from its service users regarding the substance of the notice described in item (i) of this item;
(5) the laboratory conducting SNP or other sequencing-based testing, and the genetic genealogist participating in the FGGS, are licensed by the Office of Health Care Quality in accordance with § 17-104 of this title; and
(6)(i) informed consent in writing shall be obtained from any third party whose DNA sample is sought for the purpose of assisting an FGGS and all requirements described in § 17-102(f)(1) through (3) of this title are satisfied; and
(ii) if the third party does not consent to providing a reference sample for an FGGS investigation, neither defense nor postconviction counsel, nor anyone acting on their behalf, may covertly collect a reference sample from the third party.
Covert collection of DNA sample from putative perpetrator or third party
(b)(1) If defense or postconviction counsel determines that one or more persons are putative perpetrators of the crime under investigation and it is necessary to collect a covert DNA sample from the putative perpetrator or a third party:
(i) the authorizing court shall be notified prior to the covert collection of the putative perpetrator's or the third party's reference sample;
(ii) subject to paragraph (2) of this subsection, for a covert collection of a DNA sample of a third party, investigative authorities shall provide an affidavit to the court demonstrating that seeking informed consent from a third party creates substantial risk that a putative perpetrator will flee, that essential evidence will be destroyed, or that other imminent or irreversible harm to the investigation will occur;
(iii) counsel shall make a proffer to the court explaining how counsel plans to conduct the covert collection in a manner that avoids unduly intrusive surveillance of individuals or invasions to their privacy and follows the laws of the State;
(iv) for a covert collection of a DNA sample of a putative perpetrator, any putative perpetrator DNA sample that is collected covertly may only be subjected to an STR test to see if it matches an STR DNA profile obtained from a forensic sample;
(v) any covertly collected DNA sample, including SNPs and other genetic profiles or related information, that does not match the STR DNA profile obtained from a forensic sample shall be destroyed and may not be uploaded to any DNA database, including local, state, or federal DNA databases within CODIS, or any DNA database not authorized by local, state, or federal statute; and
(vi) 1. defense or postconviction counsel conducting the covert collection shall report back to the authorizing court every 30 days about the progress of the covert collection and shall make a proffer about future plans in accordance with item (iii) of this paragraph; and
2. without good cause shown, covert collection efforts to obtain a sample shall cease after 6 months.
(2) The fear that a third party will refuse informed consent may not constitute a basis for seeking covert collection of a DNA sample from the third party.
(3) Any individual acting under court supervision in accordance with this subsection shall be treated as an agent of the State for purposes of enforcing State and federal constitutional protections.
State notified of defense or postconviction counsel’s application to conduct FGGS investigation
(c)(1) The State shall be notified that an application for judicial authorization to conduct an FGGS has been made by defense or postconviction counsel and a copy of the application shall be served on the State at the time the application is filed unless the applicant is also requesting permission from the court to redact certain portions of the application.
(2) Once a court has ruled on the motion for redactions, a copy of the application shall be served on the State within 5 days of receipt of the court order.
(3) The authorizing court shall ensure that the State is informed of the progress of the FGGS unless defense counsel or postconviction counsel can show good cause as to why that information may not be disclosed.
Application of § 17-102(h) through (k)
(d) The provisions of § 17-102(h) through (k) of this title apply to any FGGS conducted by defense or postconviction counsel.
Court order for FGGS investigation
(e) A court considering an application for an FGGS from a criminal defendant shall issue the order on a showing that testing has the scientific potential to produce exculpatory or mitigating evidence and the defendant has complied with all other requirements of this section.
Contents of court order
(f) A court order issued in accordance with subsection (e) of this section shall incorporate all certifications made in subsections (a) through (c) of this section and may describe the specific items of evidence to be tested, designate the specific laboratory facility to be used for the DNA testing, and designate the conditions under which consumptive testing can occur.

Credits

Added by Acts 2021, c. 681, § 1, eff. Oct. 1, 2021; Acts 2021, c. 682, § 1, eff. Oct. 1, 2021. Amended by Acts 2022, c. 135, § 1, eff. April 12, 2022; Acts 2022, c. 501, § 1, eff. Oct. 1, 2022.
MD Code, Criminal Procedure, § 17-103, MD CRIM PROC § 17-103
Current with legislation effective through June 1, 2023, from the 2023 Regular Session of the General Assembly. Some statute sections may be more current, see credits for details.
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