Criminal rules panel proposes DNA testing rule.

Convicted inmates where identity is an issue should be able to get a DNA test to prove their innocence, but only for a specified time, according to the Criminal Procedures Rules Committee.

That panel adopted a proposed rule, and voted to send it to the Supreme Court as an emergency amendment that would give inmates a two-year period to seek a DNA test if it could prove their innocence. The committee met January 19 at the Bar's Midyear Meeting.

DNA testing has been a high profile issue lately following news stories that a DNA test exonerated a death row inmate 14 years after his conviction, and a few months after he died in prison of cancer.

Some legislative leaders and Gov. Jeb Bush have recently said they support a state law allowing DNA testing.

Committee members reviewed a proposed rule and debated how expansive it should be. Some members said providing unlimited testing for an indefinite period would prove expensive, and wasteful. Others said they were concerned that testing might be denied to people because they didn't know that there' was DNA evidence in their case

Committee members also debated a provision requiring that identity be an issue in the case before a DNA test could be sought. Some members noted there have been cases where, innocent people took a plea bargain to get a lesser sentence because they expected to be convicted, and it might be argued that a guilty plea removed any identity claim.

That led to an amendment in the proposed rule that the motion for a DNA statements must include "a statement that identification of the defendant is a genuine disputed issue in the case." The earlier draft required that identification "was an issue in the case."

After more debate, the committee approved adopting time limits on DNA appeals. Those who have already been convicted will have two years from the date of the rule's approval to seek a review. In new cases, inmates convicted will have two years from the date of their conviction and sentencing.

Some committee members argued there should be no time limit on seeking the test, but others said all inmates will know of the testing option and the courts will be flooded with petitions. "At some Point, there has to be finality," said Abe Laeser, an assistant state attorney from Miami-Dade County. "We're going to burden the counties and we're going to burden the court system, but at least there's a limited period of time."

The committee voted 35-4 to approve the revised rule, and then 38-1 to submit it to the Supreme Court as an emergency amendment.

The rule requires those seeking the DNA tests to file a motion listing the facts including which evidence contains the DNA and where the evidence is, a statement that the evidence has not been tested for DNA or that such an earlier test was inclusive or more recent testing technology is more definitive, a statement that the inmate is innocent, and a claim the identity of the defendant is disputed. A copy of the motion must also be served on the prosecutor.

The reviewing judge, if he or she determines the motion is sufficient, can order the prosecutor to respond. Among other factors, the judge must determine there is a reasonable probability the defendant would have been acquitted if DNA evidence had been admitted at trial.

The proposed rule does not address who pays for the testing except that the court may tax the cost to the defendant if the defendant is not indigent.

An official notice with the text of the rule and inviting comments is set out below.