(a) Agencies should have minimum standards to ensure that forensic evidence is properly preserved and retained for a defined period of time.
(b) Before discarding or destroying forensic evidence, when feasible, notice should be provided by the evidence custodian to the court, prosecution, victim(s), criminal defendant(s), and legal counsel, along with an opportunity to respond.
a. Preservation standards. Agencies should adopt standards regarding the preservation and retention of evidence. Case outcomes can be harmed by the loss of evidence that could have been instrumental in proving guilt or innocence. The standards for preserving and retaining evidence should apply at all stages of forensics work—from crime-scene evidence collection, to analysis, to retention after analysis is complete. Agencies should make their preservation and retention policies public so that legal actors understand how evidence is retained, and under what circumstances it will be discarded or destroyed. The standards should also specify procedures for documenting the chain of custody and for obtaining access to evidence, including through disclosures that are the subject of § 9.06.
b. Disposing of evidence. In addition to providing notice that evidence will be discarded or destroyed, the custodian of the evidence should provide parties and counsel the ability to petition to preserve the evidence, when it is feasible to do so. Written policy should set out the length of time that evidence ordinarily will be retained. If evidence cannot be tested without consuming it, and it must be tested promptly, then it would not be feasible or reasonable to provide such notice. If, however, there is sufficient time to do so, then notice should be provided. Providing notice according to some type of schedule, or providing common notice in a single list of cases in which evidence will otherwise be discarded, could make doing so more practicable.
1. Preservation of evidence. Scientific research organizations have developed best practices for the proper retention, preservation, cataloging, and retrieval of evidence applicable to criminal investigations. See, e.g., Tech. Working Grp. on Biological Evidence Pres., Biological Evidence Preservation: Considerations for Policymakers (2015), https://nvlpubs.nist.gov/nistpubs/ir/2015/NIST.IR.8048.pdf. There is a need for better oversight of police and laboratory evidence-preservation procedures. See Latta & William P. Kiley, Property and Evidence Control—The Hidden (and Ticking) Time Bomb, CALEA Update Mag., June 2007, http://www.calea.org/calea-update-magazine/issue-94/property-and-evidence-control-hidden-and-ticking-time-bomb. There have been widespread problems with poor evidence storage in police property rooms, clerks’ offices, and crime-laboratory storage facilities. Agencies have lost evidence, had evidence contaminated through negligent storage, and discarded or destroyed evidence in cases in which it could have helped to identify the culprit. In addition, agencies have conducted forensic analysis using poor methods that can contaminate, alter, or consume evidence in a way that prevents subsequent, more accurate analysis.
Serious criminal cases have been harmed by failure to preserve evidence. Retention of biological evidence can be particularly important in sexual-assault cases; law enforcement should be attentive to its utility in other types of criminal investigations as well. Joanne Archambault, Nat’l Ctr. for Victims of Crime, Model Policy Materials: Evidence Retention, Disposition, and/or Removal, 10-12 (2015); see also Cristina Martin, DNA Storage Banks: The Importance of Preserving DNA Evidence to Allow for Transparency and the Preservation of Justice, 91 Chi.-Kent L. Rev. 1173, 1176 (2016).
U.S. constitutional law prohibits bad-faith destruction of important evidence in criminal cases, but it does not set out best practices for the retention and preservation of evidence. In the past, such rules often were informal. Police warehouses or crime laboratories would dispose of evidence when they ran out of storage space or whenever a conviction was finalized. As a result, potentially crucial evidence could not be tested when there was a need to reopen a cold case, or during post-conviction proceedings. In Dist. Attorney’s Office for Third Jud. Dist. v. Osborne, 557 U.S. 52, 73 (2009), the U.S. Supreme Court recognized a limited procedural due process right to obtain evidence of innocence if provided for by state statute. But the Court concluded that formally extending substantive due process rights to the area of forensic-evidence preservation would take the “matter outside the arena of public debate and legislative action” and place it in the federal courts, where there is “no reason to suppose that [the courts’] answers to [the question of evidence preservation] would be any better than those of state courts and legislatures, and good reason to suspect the opposite.”
To permit better policy across a jurisdiction, the National Institute of Standards and Technology (NIST) recommends that jurisdictions create state commissions to establish and enforce evidence-preservation standards. Individual agencies should not have to develop such systems on their own. Those standards should include guidelines for annual audits and inventories of stored evidence, and tracking systems for stored evidence. Tech. Working Grp. on Biological Evidence Preservation, Biological Evidence Preservation: Considerations for Policy Makers 5-7 (2013). State lawmakers, agencies, and courts can and have adopted evidence-retention and evidence-preservation policies that go beyond constitutional standards. Id. Indeed, as of 2009, “forty-six States and the Federal Government have already enacted statutes dealing specifically with access to evidence for DNA testing.” Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009).
Of the states that have preservation-of-evidence statutes, most provide some type of preservation for either specific felony offenses or for all felony offenses broadly. Among enumerated crimes, the two most common categories include (1) violent felony offenses like capital murder, murder, aggravated murder, and manslaughter and (2) sexual offenses like rape, sodomy, and sexual assault. Nine states preserve evidence for all criminal cases: California, Ca. Penal Code § 1417.9(a) (West 2016); Iowa, Iowa Code § 81.10(10) (2016); Massachusetts, Mass. Gen. Laws ch. 278A, § 16(a) (2016); Minnesota, Minn. Stat. § 590.10(1) (2016); Mississippi, Miss. Code Ann. § 99-49-1(3)(a) (2016); Nebraska, Neb. Rev. Stat. § 29-4125(1) (2016); New Hampshire, N.H. Rev. Stat. Ann. § 651-D:3(I) (2016); Rhode Island, R.I. Gen. Laws § 10-9.1-11(a) (2016); and Wisconsin, Wis. Stat. § 968.205(2) (2016). Some states also specify the status of the case, namely, whether it is in the investigative process, if the individual has been incarcerated, if the individual is on probation or on supervised release, whether the sentence is completed, or whether the individual dies. In North Carolina, biological evidence obtained in criminal investigations of homicide or rape is preserved so long as the crime remains unsolved. N.C. Gen. Stat. § 15A-268(a6)(4) (2016). In Colorado, biological evidence in felony cases will be preserved for the life of the convicted defendant. Colo. Rev. Stat. § 18-1-1102(1) (2016). In Texas, biological evidence is retained until the defendant completes any term of supervision. Tex. Code Crim. Proc. Ann. art. 38.43(c)(2)(C) (2016). The federal government requires preservation of biological evidence if a defendant is incarcerated for a federal offense. 18 U.S.C. § 3600A(a) (2012). The federal preservation statute does not provide guidelines for retention when a case remains unsolved or the statute of limitations has run.
2. Notice. Even when states do have statutes regarding preservation of evidence, there often is not a notice requirement before evidence is destroyed, and there often are not remedies for a failure to provide notice. Fewer than half of the states (and the District of Columbia) have requirements that provide notice or an ability to petition prior to disposition. Sixteen states require notice be provided to the defendant or incarcerated individual, and that individual has the right to petition the court to preserve the evidence: Alaska, Alaska Stat. § 12.36.200(d) (2016); Arkansas, Ark. Code Ann. §§ 12-12-104(c)–(d) (2016); Connecticut, Conn. Gen. Stat. § 54-102jj(c) (2016); Illinois, 725 Ill. Comp. Stat. 5/116-4(c)-(d) (2016); Maryland, Md. Code Ann. Crim. Proc. § 8-201(k) (West 2016); Mississippi, Miss. Code Ann. § 99-49-1(6) (2016); Montana, Mont. Code Ann. § 46-21-111(1)(b) (2016); Nebraska, Neb. Rev. Stat. § 29-4125(2) (2016); New Hampshire, N.H. Rev. Stat. Ann. § 651-D:3(II) (2016); North Carolina, N.C. Gen. Stat. § 15A-268(b) (2016); Oklahoma, Okla. Stat. tit 22, § 1372(C) (2016); Oregon, Or. Rev. Stat. § 133.709 (2016); Rhode Island, R.I. Gen. Laws § 10-9.1-11(b) (2016); South Carolina, S.C. Code Ann. § 17-29-340 (2016); Texas, Tex. Code Crim. Proc. Ann. art. 38.43(d) (2016); and Wisconsin, Wis. Stat. § 165.81(c) (2016) & Wis. Stat. § 968.20(3) (2016). Twenty-eight states either do not have a statute for biological-evidence preservation or do not provide any requirement of notice or ability to petition the court for preservation (No Statute: Alabama, Delaware, Idaho, Indiana, Kansas, New Jersey, New York, North Dakota, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, Wyoming) (No Notice or Petition Requirement: Florida, Georgia, Hawaii, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Missouri, Nevada, New Mexico). Five states and the District of Columbia require notice be provided to the defendant or incarcerated individual prior to disposition, but do not have a right to petition to maintain it: Arizona, Ariz. Rev. Stat. Ann. §§ 13-4221(D)–(E) (2016); California, Cal. Penal Code § 1417.9(b)(1) (West 2016); Colorado, Colo. Rev. Stat. § 18-1-414(2)(a) (West 2016); District of Columbia, D.C. Code § 22-4134(b) (2016); Minnesota, Minn. Stat. § 590.10(1) (2016); and Ohio, Ohio Rev. Code Ann. § 2933.82(B)(6) (West 2016). Virginia requires notice but only for felonies, not misdemeanors. Va. Code Ann. § 19.2-270.4(A) (2016). The federal government has three possible avenues for disposition of biological evidence, only one of which requires that notice be given to the defendant and that the defendant have a right to petition to maintain the evidence. 18 U.S.C. § 3600A(c) (2012).
The Technical Working Group on Biological Evidence Preservation also recommends notice to “all relevant parties to respond to early disposition” and allows for a response that the evidence should be retained. Tech. Working Grp. on Biological Evidence Preservation, Nat’l Inst. of Standards and Tech. & Nat’l Inst. of Justice, Biological Evidence Preservation: Considerations for Policy Makers 14 (2013). As noted, it may sometimes not be feasible to notify parties if there is a pressing need to consume evidence in order to test it promptly. However, discarding or destroying evidence should not occur without notice. Doing so can be made feasible by issuing a common notice for sets of cases, according to predetermined schedules.