Oregon Revised Statutes Chapter 138 § 138.692 — Motion

Motion for DNA testing; declaration; court order; costs. (1) After a person files a petition under ORS 138.690, the person may file a motion requesting the performance of DNA testing on evidence. The motion must be supported by: (a) A declaration by the person made under penalty of perjury that the person is innocent of the offense for which the person was convicted; and (b) A statement that: (A) Identifies the evidence to be tested with as much specificity as is reasonably practicable. The evidence must have been secured in connection with the prosecution, including the investigation, that resulted in the conviction of the person; (B) Includes the results of any previous DNA test of the evidence if a previous DNA test was conducted by either the prosecution or the defense; (C)(i) The identity of the individual who committed the crime or conduct was at issue in the underlying prosecution; or (ii) No crime occurred; and (D) Explains, in light of all the evidence, how there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution: (i) The person would not have been prosecuted or convicted of the offense; or (ii) There would have been a more favorable outcome to the underlying prosecution. (2) Concurrently with the filing of a motion under this section, the person shall serve the district attorney with: (a) A copy of any prior sworn testimony by the person concerning the underlying prosecution, including but not limited to affidavits, declarations, depositions and any testimony from the person in a prior post-conviction relief action challenging the conviction; or (b) A document affirming that there are no prior sworn statements. (3) A person may file a motion under this section notwithstanding the fact that the person pleaded guilty or no contest to the underlying conviction or, before or after conviction, made a confession or admission. (4) Upon being served as described in subsection (2) of this section, the state shall answer the motion requesting the performance of DNA testing and may refute the basis for the motion. (5) Upon the motion of a party or the court’s own motion, the court may allow the testimony of witnesses if the testimony will assist the court in making its determination to grant or deny the motion requesting the performance of DNA testing. The court may not allow testimony from the victim of the offense without the consent of the victim. (6) The court shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that: (a) Unless the parties stipulate otherwise, the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been altered in any material aspect; (b) The motion is made for the purpose of demonstrating the innocence of the person of the offense and not to delay the execution of the sentence or administration of justice; (c)(A) The identity of the individual who committed the crime or conduct was at issue in the underlying prosecution; or (B) If the person alleges that no crime occurred, the testing could not have been obtained during the criminal proceedings with the exercise of reasonable diligence; and (d) In light of all the evidence, there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution, the person would not have been prosecuted or convicted of the offense. (7) The court may order the DNA testing requested in a motion under subsection (1) of this section if the court finds that: (a) Unless the parties stipulate otherwise, the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been altered in any material aspect; (b) The motion is made for the purpose of demonstrating the innocence of the person of the offense and not to delay the execution of the sentence or administration of justice; (c)(A) The identity of the individual who committed the crime or conduct was at issue in the underlying prosecution; or (B) If the person alleges that no crime occurred, the testing could not have been obtained during the criminal proceedings with the exercise of reasonable diligence; and (d) In light of all the evidence, there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution, there would have been a more favorable outcome to the underlying prosecution. (8) In granting a motion under this section, the court may impose reasonable conditions designed to protect the interests of the state in the integrity of the evidence and the testing process. (9)(a) If a motion is granted under this section, the district attorney shall notify the victim if the name and address of the victim are known to the district attorney. (b) The district attorney may notify the victim of the results of DNA te