Utah Code 77-11c-403. Remedies for failure to preserve biological evidence

77-11c-403. Remedies for failure to preserve biological evidence.

(1)

Terms Used In Utah Code 77-11c-403

Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
Biological evidence: includes :

(i)

material that is catalogued separately, including:

(A)	on a slide or swab; or

(B)	inside a test tube, if the evidentiary sample that previously was inside the test tube has been consumed by testing;

(ii)	material that is present on other evidence, including clothing, a ligature, bedding, a drinking cup, a cigarette, or a weapon, from which a DNA profile may be obtained;

(iii)

the contents of a sexual assault examination kit; and

(iv)

for a violent felony offense, material described in this Subsection (6) that is in the custody of an evidence collecting or retaining entity on May 4, 2022. See Utah Code 77-11c-101

Conviction: A judgement of guilt against a criminal defendant.

Court: means a municipal, county, or state court. See Utah Code 77-11c-101

Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.

Dismissal: The dropping of a case by the judge without further consideration or hearing. ^Source:

Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.

Evidence: means property, contraband, or an item or substance that:

(a)	is seized or collected as part of an investigation or prosecution of an offense; and

(b)

may reasonably be used to incriminate or exculpate an individual for an offense. See Utah Code 77-11c-101

Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.

(a)

Except as provided in Subsections (1)(b) and (2), if a court finds that biological evidence that reasonably could have been found to be exculpatory in a defendant‘s criminal case was not preserved in accordance with this chapter, the court may impose sanctions and remedies at the court’s discretion, including:

(i)	the grant of a new trial;

(ii)	an instruction to the jury that evidence was not preserved as required by law;

(iii)

the reduction of the sentence;

(iv)	the dismissal of the criminal charge;

(v)	the vacation of the conviction; or

(vi)	the entry of a finding that because the evidence was not preserved in accordance with this chapter, a presumption exists that the evidence would have been exculpatory to the defendant.

(b)

The provisions in Subsection (1)(a) apply only if:

(i)	a defendant’s appeal has not concluded;

(ii)	a defendant’s time for appeal has not expired; or

(iii)

a defendant has received a new trial in accordance with Subsection (2)(b).

(2)

(a)

A defendant shall seek relief under Title 78B, Chapter 9, Postconviction Remedies Act, if:

(i)	the defendant alleges that the biological evidence that is the basis for the defendant’s claim was not preserved in accordance with this chapter; and

(ii)

(A)	the defendant’s appeal has concluded; or

(B)	the time for the defendant’s appeal has expired.

(b)	If a defendant obtains relief under Title 78B, Chapter 9, Postconviction Remedies Act, the provisions in Subsection (1) apply to the defendant’s new trial.

Renumbered and Amended by Chapter 448, 2023 General Session

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