HOUSE - No. 5030  

EXECUTIVE DEPARTMENT STATEHOUSE. BOSTON 02133

July 29, 2004.  

To the Honorable Senate and House of Representatives:

Pursuant to Article LVI of the Constitution of the Commonwealth, as amended by Article XC, Section 3 of the Amendments to the Constitution of the Commonwealth, I am returning to you for amendment House Bill 4255, "An Act Relative to Compensation for Certain Erroneous Felony Convictions,"  

This bill adds a new chapter, Chapter 258D, to the General Laws. This chapter creates a cause of action for those who have been convicted of a felony of which they are innocent. I fully support the concept underlying this bill, and I offer these amendments to clarify and improve certain ambiguous portions of the bill so that it will accomplish its intended goals when it is reenacted and presented for my signature.  

I therefore propose the following amendments:  

By inserting in section (1) (B) (i), following the number "127" the following:-  

when the governor expressly states in writing his belief in the claimant's Innocence  

By striking out, in section (1) (B) (ii) (a), the phrase:  

and either he was found not guilty at the new trial or  

  By striking out, in section (1) (B) (ii) (b), ''consistent with" and

inserting in place thereof the phrase:-  

  which tend to establish  

  By striking out section (1)(C)(ii) and inserting in place thereof the

following:-  

  was charged by indictment or complaint with the commission, and was convicted, of an offense classified as a felony;  

  By striking out. in section (1) (C) (v) following the semicolon, the word

   and  

  By striking out section(1) (C) (vi) , and inserting in place thereof the

following:-  

  is factually innocent of the crime or crimes charged in the indictment or complaint, including any lesser included offense of the crime so charged and any other crime directly related to the facts underlying the charged offense or offenses; and  

  By adding, after section (1)(C)(vi) the following new subsection:-  

  (vii) did not by his own conduct cause or bring about his conviction.  

  By striking out, after section 1 (C) (vi), the second sentence, in the second paragraph, and inserting in place thereof the following sentences:-  

  In the interests of doing substantial justice, with regard to the weight and admissibility of evidence submitted by the claimant or the commonwealth, the court presiding at a jury-waived trial shall exercise its discretion by giving due consideration to any difficulties of proof caused by the passage of time, the death or unavailability of witnesses, or other factors not caused by the claimant, or those acting on the claimant's or the commonwealth's behalf.  At a jury trial, the court shall consider these same factors as part of the exercise of its discretion when it admits evidence, and the court shall instruct the jury that it may consider the same factors when it weighs the evidence presented at trial.  

  By striking out, in the last sentence of section 1, the words “Fourth or Fifth Amendment" and inserting in place thereof-  

  Fourth, Fifth, or Sixth Amendments 

  By adding to section 4, after the third sentence, the following sentences:- 

  Any such victim, shall be allowed, but may not be compelled, to testify or furnish other evidence.  If the victim elects not to testify, his prior recorded testimony, given under oath, at a relevant proceeding, shall be admissible regardless of whether the victim is then available to testify.  

  By striking from section 5 the second sentence, and inserting in place thereof the following sentences:-  

  In making that determination, the fact-finder's primary consideration shall be, but need not be limited to, the lawful income the claimant would have earned but for his incarceration. The court, in its discretion, may admit expert testimony on this factor. The fact-finder may also consider as part of the damage determination, but need not be limited to, the particular circum- stances of the claimant's trial and other proceedings, the length and conditions under which the claimant was incarcerated, and any other factors deemed appropriate under the circumstances to fairly and reasonable compensate the claimant.  

Respectfully submitted,

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