Defendant was charged with 2 counts of predatory criminal sexual assault of a child. Indictment alleged sexual penetration. Court erred in denying Defendant's motion for forensic testing of blood and tapings from 2 pairs of underwear each of which was admitted as evidence at trial and had thus presumably remained within possession and control of State. Chain of custody requirement of Section 116-3 does not apply to evidence prior to it being taken into custody. State introduced it as evidence at trial and used it to procure a conviction, and State cannot now argue that evidence is too tainted to be considered. As no physical evidence against Defendant was ever produced at trial, requested testing has potential to produce new evidence materially relevant to Defendant's assertion of actual innocence, even if results may not completely exonerate Defendant. (O'BRIEN and HOLDRIDGE, concurring.)
Illinois Appellate Court
Criminal Court
Evidence