Preservation Of Evidence

Preserving DNA evidence preserves the ability to prove innocence.

Preserved evidence can help solve closed cases – and exonerate the innocent. Preserving biological evidence from crime scenes is critically important because DNA can provide the best evidence of innocence – or guilt – upon review of a case.

None of the nation’s more than 350 DNA exonerations would have been possible had the biological evidence not been available to test. Had the evidence been destroyed, tainted, contaminated, mislabeled, or otherwise corrupted, the innocence of these individuals would never have come to light.

Do all states require the preservation of crime scene evidence?

More than half of the states have passed legislation that compels the automatic preservation of evidence upon conviction of a defendant. However, most of these laws are limited in a variety of ways. Many state statutes restrict both the timeframes for required retention and the crime categories for which evidence must be preserved. Other statutes only require the retention of evidence upon the effective date of their passage, legally allowing states to destroy old evidence attached to either innocence claims or old, unsolved cases. Still other states only mandate the preservation of evidence upon petition for re-testing of evidence. As a result, large quantities of evidence are destroyed in the window of time between conviction and petition, to make way for incoming evidence in the face of storage space concerns.

Has any federal guidance been provided to states and localities to properly preserve biological evidence?

Responding to a call for guidance to standardize biological evidence retention, the Department of Justice funded the creation of a federal Technical Working Group (TWG) on Biological Evidence Preservation, which was administered by the National Institute of Standards and Technology (NIST). The TWG produced two reports providing long-awaited guidance to evidence custodians and policymakers:

The Biological Evidence Preservation Handbook: Best Practices for Evidence Handlers

Biological Evidence Preservation: Considerations for Policy Makers

Key Facts:

• Requirements around the preservation of evidence are usually embedded in DNA testing access statutes, but sometimes take the form of standalone statutes.

• In 2004, Congress passed the Justice for All Act (H.R. 5107), which provides financial incentives for states to preserve evidence – and withholds those same monies for states that do not adequately preserve evidence.

Not all states that require the preservation of evidence succeed in fulfilling their mission.

Even when a state is amenable to testing post-conviction biological evidence and provides access to individuals who have petitioned to have the DNA evidence associated with their case tested, the Innocence Project has uncovered examples of cases where that evidence has not been preserved. Oftentimes, this is because evidence is destroyed during the window of time between conviction and the filing of a post-conviction petition for testing or re-testing of the biological evidence.

What are some common shortcomings in existing statutes?

• Some legislation limits the preservation of evidence to only certain crimes.

• Nearly every state with legislation calling for the preservation of evidence allows for its premature disposal.

• By failing to provide a legal remedy when evidence is lost or destroyed, most states deny the innocent any legal recourse.

What should be contained in a statute requiring the preservation of evidence?

Elements of a meaningful preservation law, either as an amendment to a post-conviction DNA testing access statute, or as a separate bill, must include:

• The preservation of all items of physical evidence relating to felony crimes, regardless of whether an individual files a petition for post-conviction DNA testing.

• The retention of crime scene evidence that is associated with unsolved cases.

• The retention of all items of physical evidence secured in connection with a felony for the period of time that any person remains incarcerated, on probation or parole, involved in civil litigation in connection with the case, or subject to registration as a sex offender.

• Provisions enabling courts to determine the appropriate remedy when evidence is improperly destroyed.

Ideally, legislation requiring the preservation of evidence will include the following provisions:

• If biological evidence is destroyed, the court may vacate the conviction, grant a new trial, and instruct the new jury that the physical evidence in the case, which could have been subjected to DNA testing, was destroyed in violation of the law.

• The court will also instruct the jury that if it finds that the evidence was intentionally destroyed, it may presume that the results of the DNA testing would have been exculpatory.

Case in Point: Robin Lovitt – Virginia Death Row Inmate

Robin Lovitt, convicted of the capital murder and robbery of a pool hall employee in Arlington, Virginia, was sentenced to death in early 2000. When Mr. Lovitt sought to appeal the decision, it came to light that the evidence associated with his case had been destroyed. Despite being reminded that Virginia law required the preservation of evidence from the case, a court clerk nonetheless discarded the murder weapon, a blood-stained pair of scissors. The DNA testing available at the time of the trial could only conclusively tie the blood on the weapon to the victim and not to anyone else. By the time Mr. Lovitt sought an appeal, more sophisticated and modern DNA testing was available, but the evidence – which could have proven guilt or innocence, and/or informed the appropriateness of the death penalty – was not. The Supreme Court declined to address this issue, and Robin Lovitt was ultimately scheduled to become the 1,000th person executed since capital punishment resumed in 1977.

The wrongful destruction of the evidence that could have conclusively proven innocence or guilt denied a conclusive answer. Recognizing the ambiguity caused by the destruction of evidence, Virginia Governor Mark Warner commuted Lovitt’s sentence to life in prison.

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