A guide to retaining evidence after criminal trials and how to destroy it once it’s no longer needed
Jana K. McCown
Prosecutors and evidence technicians often ask how long they have to keep evidence for various criminal trials. The next questions are usually, “How do I get rid of it, and whom do I have to ask for authorization?” This article (and a follow-up in an upcoming issue) will answer those questions and might prompt you to evaluate your office’s position on evidence destruction for your county. It is not as complicated as it looks—in spite of the language in the statutes—and you don’t have to keep evidence forever.
It is important to realize from the beginning that not every item in an evidence room is really “evidence.” Law enforcement agencies have a lot of discretion in deciding what to collect at a crime scene, and most operate under the “more is better” mode. After all, who wants to hear a prosecutor or defense attorney ask why they didn’t collect the weapon, drugs, clothing, junk on the ground, etc.? By picking up everything that might show anything, evidence rooms fill up with junk that isn’t helpful to anyone in the long run. Getting rid of it later practically takes an act of Congress because everyone is afraid to “destroy evidence.”
There are several reasons why we should not keep evidence when it is no longer needed, starting with the most obvious one: storage space. Aside from practical considerations, it is unreasonable and unrealistic to expect a law enforcement agency to hold onto everything in perpetuity. Ninety-nine percent of criminal cases are resolved without a trial, either by a plea, referral, dismissal, or no-bill; in 99 percent of all criminal investigations that result in charges, the evidence that was collected was never used in court. Add to that the evidence collected by law enforcement where charges are never filed, and it’s easy to see why evidence rooms fill up.
Unless the specific item has future evidentiary value, there is no reason to hold onto it once the case has been disposed. When law enforcement requests to dispose of evidence, whether that request is made to a magistrate directly or through the prosecutors’ office, if everyone understands why we hold onto certain categories of evidence, then the stigma attached to destruction can be removed. It’s important that every prosecutor’s office have a review process that can be explained and understood so that the public knows we are not hiding anything.
Very few statutory guidelines exist to tell us how long we should keep evidence and how we should destroy it. The best answer (or maybe the smart-aleck one) is to keep it until you don’t need it anymore, but how do you decide how long that is? Each individual office will have to decide for itself, but a few recommendations may be helpful. Knowing which law requires you to keep evidence will guide you in disposing of other evidence and non-evidentiary items when you don’t need them anymore.
Evidence containing biological material
The most well-known evidence retention law is the DNA statute in the Code of Criminal Procedure, Article 38.43. The statute never actually uses the term “DNA” but rather the phrase “evidence containing biological material,” but we all know what the legislature meant. This particular statute mandates the longest holding period for any type of evidence available—and rightly so. When technology allows evidence to be examined and linked with a specific person, then it is only right that this kind of evidence be maintained essentially until all uncertainty is gone.
To determine whether Article 38.43 requires evidence preservation for a specific time, ask the following questions.
• Has a defendant been convicted?
• Was the evidence in the State’s possession when the case was prosecuted?
• At the time of conviction, did prosecutors know the evidence contained biological material that, if tested, would more likely than not establish the perpetrator’s identity or exclude a person as the perpetrator?
If the answer to all three questions is yes, then you must preserve that evidence for a specific period of time (details about how much time appear later in the article) unless you follow the procedure in the statute to give notice and receive authorization to destroy it earlier. A “no” answer to any one of those questions may release you from a statutory mandate, but you should still evaluate the decision to destroy evidence containing biological material differently from any other kind of evidence.
In a capital murder case, biological material evidence must be preserved until the defendant is executed, dies, or is released on parole, whiever is earlier. In any other case involving a sentence of confinement or imprisonment, the biological material evidence must be preserved until the earliest of the dates on which the defendant dies, completes the sentence, or is released on parole or mandatory supervision. Evidence containing biological material may be hanging around an evidence room for a very, very long time.
In spite of these mandated retention periods, evidence may be destroyed earlier only if:
1) the prosecutor, clerk, or other officer in possession of the evidence notifies by mail the defendant, the defendant’s last attorney of record, and the convicting court of the decision to destroy the evidence, and
2) no written objection is received by the prosecutor, clerk, or the officer in possession of the evidence before the 91st day after the later of the following two dates:
• the date proof is received that the defendant received notice or
• the date the notice is mailed to the last attorney of record.
After the notice of intent to destroy is given and no objection is received within the statutory time frame, there is no requirement that any further authorization be given by the court. Prosecutors could simply inform the law enforcement agency that they can now dispose of the evidence. The better practice, however, is to obtain a court order authorizing the destruction so that an impartial judge has reviewed the process. To cover all the bases in a felony case, file a Notice of Intent to Destroy Evidence with the district clerk, send certified letters to the last attorney of record and the inmate in prison, then return to the court approximately 120 days later with an order for destruction. In the order for destruction, detail sending the notice letters to the defendant and the last attorney of record and have the court make a finding that there has been no objection received within the statutory time frame.
When can you be comfortable with seeking the early destruction of evidence containing biological material? When the evidence has been fully tested and the DNA belongs to the defendant who was convicted! The statute was designed to address post-conviction testing to insure the integrity of convictions. When the defendant who has been convicted is confirmed as the source of the biological material, the purpose for retention is no longer as critical. It is also much easier to give notice of intent to destroy the evidence when there is a DNA match as soon as all appeals are completed. Why wait years down the road when the prosecutor’s knowledge about the case has faded and somebody new has to read the entire file and decide to destroy? When the evidence containing biological material came from an identifiable source, especially if the source was the defendant or victim, my recommendation is to follow the steps for early destruction as soon as you feel comfortable after the case is disposed, especially if the disposition involved a guilty plea. If there was a trial, however, additional retention guidelines apply.
It is important in the evaluation of whether to retain evidence that the prosecutors and evidence technicians be aware of future improvements in technology. So-called touch DNA, the possibility that a person may deposit skin cells on an item by touching it, is such an area. If items, such as a piece of clothing, have been swabbed, for instance, it may be acceptable to preserve the swabs and not the clothing itself. Remember, the threshold question is whether at the time of conviction, prosecutors knew the evidence contained biological material that, if tested, would more likely than not establish the perpetrator’s identity or exclude a person as the perpetrator. This does not mean that nothing should ever be destroyed because of the possibility that someone touched it. Evidence collection is a skill that combines the educated guess about where evidence may be found with the knowledge of how to preserve that evidence for testing.
The best answer is to attempt collection of all possible DNA evidence at the very beginning. It may be an oversimplification, but the longer an item is held somewhere, the greater the potential for deterioration or loss of evidence containing biological material in any form.
Evidence actually introduced as an exhibit
When some item has been marked as an exhibit and introduced in court during a trial or other hearing, Article 2.21 of the Texas Code of Criminal Procedure controls the post-trial disposition of that exhibit. At the conclusion of a criminal proceeding, Article 2.21 designates the clerk to receive all exhibits from the court reporter. The clerk shall then release any firearms or contraband (drugs) to either the sheriff or the law enforcement agency from which the evidence came.1
All other “eligible exhibits”2 must be held for one year after the conviction becomes final in a misdemeanor or a felony case with a sentence of five years or less. If the case was a non-capital felony with a sentence of more than five years, the clerk must keep it for at least two years from the date the conviction becomes final.
Remarkably, the statute does not specify a time for capital felonies when the evidence does not contain biological material. Given the shorter time periods until execution today, I recommend following the guidelines in the DNA preservation statute when a death sentence is imposed and retain the evidence in the clerk’s office until the defendant dies, is executed, or is released on parole. In the event of a capital life sentence,3 wait a reasonable amount of time and apply to the court for authorization to destroy the evidence. Ten years should be ample time for all appeals to be completed and any writs filed.
The DNA preservation statute trumps Article 2.21, which means that even the district clerks’ must either comply with the procedures for early destruction of evidence in Article 38.43 or keep any evidence containing biological material for the longer time periods specified in that statute. Consequently, it is important that prosecutors’ offices and clerks’ offices work together on these issues. In a county with a population of 1.7 million people or more, the clerk is not required to notify anyone before disposing of eligible exhibits.4 It is important, therefore, for the trial prosecutor to somehow identify for the clerk which exhibits should be preserved for a longer period of time because they contain biological material. Such identification should be done immediately following the trial or hearing, again, because it is fresh in everybody’s mind. The clerk in a county with a population of fewer than 1.7 million people is required to provide written notice to the prosecutor and defendant before disposing of an eligible exhibit.5 One alternative for the clerk, which would allow him to dispose of evidence containing biological material at approximately the same time as the rest of the evidence, would be to notify the defendant (as well as the prosecutor and defense attorney) and extend the time for receiving a request or objection related to the destruction to 90 days instead of the required 30 days for ordinary evidence. If no objection is received, then all exhibits, biological and otherwise, may be disposed of by the clerk. Again, no further authorization by the court is required; however, a simple application and order for destruction may better protect everyone involved.
Notice what a short time the legislature authorized for the destruction of evidence that was actually used as evidence in court. Why should a law enforcement agency be required to hold onto evidence that never made it to the courtroom longer than the evidence that did? It all comes down to the discretionary decisions made by prosecutors and law enforcement agencies about their individual comfort level related to when evidence is no longer needed.6
Evidence that can be destroyed before trial
Certain kinds of evidence would be dangerous to keep in an evidence room, so the legislature has recognized that their early destruction is appropriate when safety is an issue. For example, explosive weapons7 and chemical dispensing devices8 may be photographed and destroyed without ever putting the item in the evidence room if prosecutors follow the procedures set out in Article 18.181 of the Code of Criminal Procedure. Fortunately, we don’t have too many bombs in Georgetown, but if we did, the nearest bomb squad would be contacted to handle the destruction.
Excess quantities of controlled substance property or plants may also be forfeited and destroyed before the disposition of a case as long as representative samples are taken and preserved for discovery.9 While safety is not the primary consideration, the storage of very large amounts of narcotics is unnecessary in many cases. At least five random and representative samples must be taken from the total amount and a sufficient quantity preserved to provide for discovery by the parties. The statute also requires taking photographs that reasonably show the total amount of the property or plants, and the gross weight or liquid measure of the property or plants must be determined, either by actually weighing or measuring or by estimating the weight or measurement after making dimensional measurements of the total amount seized. If the property is liquid in a single container, only one representative sample is required.
Although the statute allows for this destruction without a court order or the consent of the prosecutor’s office, the Williamson County District Attorney’s Office has asked that our agencies follow this procedure for excess quantities of controlled substances or marijuana:
• A request for destruction of the excess quantities should be submitted to our office with a flag that the case is still pending.
• The prosecutor handling the case will be consulted and, if destruction is appropriate, a motion and order will be submitted to the judge so that the defense may have an opportunity to raise any objections.
• If the court authorizes the destruction, the process of taking the random and representative samples will be scheduled. At the discretion of the prosecutor and the law enforcement agency, the defense may be given the opportunity to be present.
• The destruction of the excess quantity should be handled according to all applicable statutes and department rules.
The primary reason we ask law enforcement to take these steps is so that the prosecutor who may be trying the case can be involved in the decision to destroy. While it may not be practical to bring 700 pounds of marijuana into the courtroom, five 10-pound samples will still be more impressive than five two-ounce samples. In a county with larger numbers of big drug seizures, one could certainly discuss the standards with law enforcement for amounts to keep generally instead of on a case-by-case basis. Again, court intervention is not required, but it may help resolve potential issues that could otherwise be used by the defense at trial.
For hazardous materials (i.e., meth lab byproducts or similar chemicals), I suggest this procedure:10
• Before seizing and destroying hazardous wastes, take photographs that reasonably show the total amount of the materials seized and the manner in which they were physically arranged or positioned before seizure.
• At least two witnesses should view the items and determine that it is unsafe to store the items in the evidence room. These witnesses should be able to testify about why keeping these items is unsafe.
• At least two witnesses to the destruction of the items should be available at trial to testify.
• If it is safe to do so, any physical evidence capable of being properly packaged and stored safely should be preserved for use at a trial.
The early destruction of “hazardous waste, residuals, contaminated glassware, associated equipment, or byproducts for illicit chemical laboratories or similar operations that create a health or environmental hazard or are not capable of being safely stored” is also governed by §481.160. Again, Williamson County asks for a little more than the statute requires to attempt to minimize the issues at trial, but we do not interfere with law enforcement’s determination that hazardous materials are unsafe to put in the evidence room.
Evidence that can be returned to the rightful owner before trial
Chapter 47 of the Code of Criminal Procedure governs the disposition of stolen property and authorizes the return of stolen property to the true owner. Think of all the shoplifted property or stolen cars that would be in evidence rooms and on impound lots if we were required to hold onto that stolen property until the case was disposed11—nor does the law prevent us from burying a deceased victim, allowing an injured victim to seek medical attention, or returning items that have no evidentiary value. Fortunately, Article 47.01 requires that the officer hold the property only if ownership is contested or disputed.
A little common sense and an examination of the statutes reveals that evidence is required to be held only as long as it is useful. With a little thought, you can determine when it is important or required for law enforcement, prosecutors, and clerk’s office to hold evidence. Stop being afraid of cleaning out evidence rooms! ✤
Editor’s note: Copies of the Williamson County DNA destruction notice letters and a motion for destruction can be found as attachments below. The next article in this series will discuss the disposition of evidence at the completion of a case by court order.
1 For counties with a population of less than 500,000, the sheriff holds firearms or contraband for safekeeping after it has been introduced as an exhibit in court. For counties with a population of 500,000 or more, the exhibit is returned to the law enforcement agency that collected, seized, or took possession of the firearm or contraband or produced the firearm or contraband at the proceeding.
2 An “eligible exhibit” is an exhibit filed with the clerk that is not a firearm or contraband, has not been ordered by the court to be returned to its owner, and is not an exhibit in any other pending action (co-defendant cases). Tex. Code Crim. Pro. art. 2.21.
3 Life with or without parole, whichever was imposed by law at the time of conviction.
4 Tex. Code of Crim. Pro. Art. 2.21(f).
5 Tex. Code Crim. Pro. Art. 2.21(g).
6 Perhaps the packrat in your office should not be the person making these decisions.
7 An explosive weapon is defined as “any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosive weapon”. Tex. Penal Code §46.01(2).
8 A chemical dispensing device is a “device, other than a small chemical dispenser sold commercially for personal protection, that is designed, made, or adapted for the purpose of dispensing a substance capable of causing an adverse psychological or physiological effect on a human being.” Tex. Penal Code §46.01(14).
9 Tex. Health & Safety Code §481.160.
10 Step 1 is required by Tex. Health & Safety Code §481.160(e). Steps 2, 3, and 4 are recommendations for law enforcement in Williamson County.
11 Not to mention cattle or other livestock.