Petition requesting genetic marker testing of evidence by person sentenced to death: Authorized; procedure; when granted; remedy not exclusive.
1. A person convicted of a crime and under sentence of death who meets the requirements of this section may file a postconviction petition requesting a genetic marker analysis of evidence within the possession or custody of the State which may contain genetic marker information relating to the investigation or prosecution that resulted in the judgment of conviction and sentence of death. The petition must include, without limitation, the date scheduled for the execution, if it has been scheduled.
2. Such a petition must be filed with the clerk of the district court for the county in which the petitioner was convicted on a form prescribed by the Department of Corrections. A copy of the petition must be served by registered mail upon:
(a) The Attorney General; and
(b) The district attorney in the county in which the petitioner was convicted.
3. If a petition is filed pursuant to this section, the court shall determine which person or agency has possession or custody of the evidence and shall immediately issue an order requiring, during the pendency of the proceeding, each person or agency in possession or custody of the evidence to:
(a) Preserve all evidence within the possession or custody of the person or agency that may be subjected to genetic marker analysis pursuant to this section;
(b) Within 30 days, prepare an inventory of all evidence within the possession or custody of the person or agency that may be subjected to genetic marker analysis pursuant to this section; and
(c) Within 30 days, submit a copy of the inventory to the petitioner, the prosecuting attorney and the court.
4. Within 30 days after the inventory of all evidence is prepared pursuant to subsection 3, the prosecuting attorney may file a written response to the petition with the court.
5. The court shall hold a hearing on a petition filed pursuant to this section.
6. The court shall order a genetic marker analysis if the court finds that:
(a) A reasonable possibility exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through a genetic marker analysis of the evidence identified in the petition;
(b) The evidence to be analyzed exists; and
(c) The evidence was not previously subjected to:
(1) A genetic marker analysis involving the petitioner; or
(2) The method of analysis requested in the petition, and the method of additional analysis may resolve an issue not resolved by a previous analysis.
7. If the court orders a genetic marker analysis pursuant to subsection 6, the court shall:
(a) Order the analysis to be conducted promptly under reasonable conditions designed to protect the interest of the State in the integrity of the evidence and the analysis process.
(b) Select a forensic laboratory to conduct or oversee the analysis. The forensic laboratory selected by the court must:
(1) Be operated by this state or one of its political subdivisions, when possible; and
(2) Satisfy the standards for quality assurance that are established for forensic laboratories by the Federal Bureau of Investigation.
(c) Order the forensic laboratory selected pursuant to paragraph (b) to perform a genetic marker analysis of evidence. The analysis to be performed and evidence to be analyzed must:
(1) Be specified in the order; and
(2) Include such analysis, testing and comparison of genetic marker information contained in the evidence and the genetic marker information of the petitioner as the court determines appropriate under the circumstances.
(d) Order the production of any reports that are prepared by a forensic laboratory in connection with the analysis and any data and notes upon which the report is based.
(e) Order the preservation of evidence used in a genetic marker analysis performed pursuant to this section for purposes of a subsequent proceeding or analysis, if any.
8. If the results of a genetic marker analysis performed pursuant to this section are favorable to the petitioner:
(a) The petitioner may bring a motion for a new trial based on the ground of newly discovered evidence pursuant to NRS 176.515; and
(b) The restriction on the time for filing the motion set forth in subsection 3 of NRS 176.515 is not applicable.
9. The court shall dismiss a petition filed pursuant to this section if:
(a) The requirements for ordering a genetic marker analysis pursuant to this section are not satisfied; or
(b) The results of a genetic marker analysis performed pursuant to this section are not favorable to the petitioner.
10. For the purposes of a genetic marker analysis pursuant to this section, a person under sentence of death who files a petition pursuant to this section shall be deemed to consent to the:
(a) Submission of a biological specimen by him to determine his genetic marker information; and
(b) Release and use of genetic marker information concerning the petitioner.
11. The expense of an analysis ordered pursuant to this section is a charge against the Department of Corrections and must be paid upon approval by the Board of State Prison Commissioners as other claims against the State are paid.
12. The remedy provided by this section is in addition to, is not a substitute for and is not exclusive of any other remedy, right of action or proceeding available to a person convicted of a crime and under sentence of death.
Last modified: February 25, 2006