Searching for Evidence

Once a case has been determined to meet the criteria of a category 1 or category 2 case, defense counsel must begin a search for any biological evidence that may be available on which to conduct the DNA testing. Finding the evidence is the most difficult part of the process. Uniform protocols for the preservation of evidence in each jurisdiction do not exist. Each State, local, or county jurisdiction varies in its methods of collecting, storing, and preserving evidence. These methods may not conform to existing statutes and regulations. Many times all parties believe that the evidence has been destroyed, when in fact it has not. It may be necessary to search for evidence that has not previously been tested or introduced in court.

A major barrier to conducting DNA testing is that, quite frequently, the evidence has been destroyed or cannot easily be found. Destruction generally occurs as a routine matter and is not done with malicious intent. Once preservation statutes have been passed in each State, it will make the process of finding the evidence both more efficient and more likely to occur. However, at this time, since most jurisdictions do not have uniform procedures for storing evidence, it is necessary to follow certain steps. Note that these steps will differ from State to State and case to case.

The searcher for the evidence must determine the most likely places for the evidence to be found. Places and persons to consider and contact are:

• Police department evidence or property rooms. Evidence is often found here if the evidence was never tested or it was sent to the State crime laboratory, which then returned it.
• Prosecutor's office. Evidence is often found here when it has been introduced at trial.
• State and local crime laboratories will often retain slides or other pieces of evidence after conducting testing. Laboratories will usually return to the police department the clothing and vaginal swabs that are introduced as exhibits at trial.
• Hospitals, clinics, or doctors' offices where sexual assault kits are prepared.
• Defense investigators.
• Courthouse property/evidence rooms.
• Offices of defense counsel in jurisdictions that require parties to preserve exhibits produced at trial.
• Independent crime laboratories.
• Clerks of court.
• Court reporters.

The searcher should not give up until he has seen substantiation that the evidence has been destroyed. Even then, previously untested items may still be available, e.g., slides or clothing that were introduced for identification purposes.

Even if the evidence appears to have been destroyed, the laboratory may still have slides or previously isolated DNA, which, given advances in the sensitivity of DNA testing, frequently contain enough biological material to conduct successful testing.

The searcher may choose to go to court and move for the court to order custodial agencies to search for the evidence. This type of motion may be necessary if legitimate efforts are not being made to locate the evidence.

Preservation Letters

It is extremely important that any evidence collected in connection with the case be preserved. Once counsel has determined that the case will be pursued, a blanket preservation letter should be sent asking the custodial authorities to preserve the evidence. Once potential or specific locations of the evidence have been identified, preservation letters should be sent to the custodial agencies. The letter should indicate the date on which the evidence was located, the person who indicated that it had been located, and the specific items of evidence that were located. Further, the letter should request that the evidence not be destroyed for an indefinite period of time because it will possibly form the basis of a postconviction relief petition, and that if destruction is nonetheless contemplated, notice should be provided to counsel so that injunctive relief can be sought.

If the evidence has been destroyed, this must be confirmed in writing by the appropriate authority. In addition to the written assertion that the evidence was destroyed, there should be some additional documentation confirming destruction. For example, either a court order mandating the destruction or a log book entry would suffice.

Go to the Next Section: Consultation With Prosecutor

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