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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 InmateRobin 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.
These guidelines cover the nature of physical evidence and precautions necessary for the preservation of such evidence.
Physical evidence is any object associated with a crime and which tends to prove or disprove a point regarding the crime, victim, or perpetrator. The chain of custody is an unbroken chronicle of proof relating to the possession and analysis of the evidence until its appearance in court. Evidence may be fixed or movable. The first step in the chain of events related to physical evidence is the crime scene search, while laboratory analysis is the second significant step. The investigator should place primary emphasis on protection of the crime scene and secondary emphasis on collection of evidence. Photography and sketches are the best way of protecting the crime scene. The five steps recommended by the Federal Bureau of Investigation for collecting and preserving evidence are (1) obtaining it legally; (2) describing the evidence in detailed notes; (3) identifying it accurately and positively; (4) packaging it properly for identification, storage, or shipment to the laboratory; and (5) establishing and maintaining the chain of custody. Specific precautions should be taken in handling weapons used in an attack, clothing, firearms, blood stains, seminal stains, fingernail scrapings, hairs, fibers, drugs, and poisons. The investigator's equipment should include fingerprint accessories, a vacuum sweeper with special filters, containers, tools, magnifiers, casting equipment, and ultraviolet light equipment. The success of the laboratory technician's analysis depends directly on the investigator for the quality of the physical evidence. Photographs and 13 reference notes are provided. An estimated 1,197,704 violent crimes occurred nationwide in 2015, according to the Federal Bureau of Investigation's Uniform Crime Reporting Program. Violent crimes are determined according to a Hierarchy Rule: murder, non-negligent manslaughter, rape, robbery, and aggravated assault. The collection, preservation, and forensic analysis of the evidence with most crimes are often critical in determining a person's guilt or a person's innocence. The forensic exam is beneficial to law enforcement and the medical setting to provide a comprehensive medical forensic examination with the collection of evidence knowing the patient's body is the crime scene. Evidence must be identified, collected, packaged, secured, and maintained correctly, then released to Law Enforcement following a strict chain of custody rules so that it can be analyzed appropriately and used later in legal proceedings. When collecting evidence, the examiner must wear gloves at all times and change them often utilizing the clean technique. Following proper collection, handling, and storage of evidence will reduce the possibility of cross-contamination or degradation of DNA.[1][2] Trace Evidence May consist of debris such as dirt, soil, sand, gravel, grass, leaves, twigs, adhesives and tape, fibers, glass, or bullet fragments. When trace evidence is identified, the following steps in the collection of the evidence is outlined below:
Biological Evidence May consist of blood, skin, hair, semen, saliva, and urine.
The same process for packaging, securing, and maintaining the evidence as outlined above is used for the collection of trace evidence.[4][5] Clothing Evidence Clothing that is worn by an individual at the time of the crime often contains physical or biological evidence that must be preserved. If the patient is wearing the clothes they had on during the assault, all items can be considered evidence. If the patient is not wearing the clothes they had on during the assault, clean clothing put on later by the patient, such as underpants in the case of a sexual assault, may still contain bodily fluids other than the patient's. The patient's clothing must be handled and examined carefully to avoid loss of evidence. Each piece of clothing must be dried thoroughly if wet or damp. Each piece must be identified, labeled with the patient's identifying information, date, time, and examiner's initials. All stains or tears to the clothing must be documented. When these steps have been completed, each piece of clothing must be placed in separate bags to avoid cross-contamination. The clothing placed in the individual bags must be identified, labeled with the patient's identifying information, the examiner's signature, initials, date, and time. Each bag is then placed in a larger bag, properly labeled with the patient's identifying information, the examiner's signature, initials, date, and time. When clothing is collected, it must be correctly identified, packaged, preserved, secured, and maintained until released to law enforcement with the proper chain of custody for further analysis at a forensic/crime laboratory.[6] Injury to the Body The forensic examiner will take a history from the patient to help guide in performing a detailed head-to-toe assessment to identify injury or findings to the patient's body. Injury or findings must be documented by taking photographs, measuring the injury utilizing measuring tools, and/or using age-specific body diagrams. The correct terminology must be used to describe injury and findings. For example, medical personnel confuses lacerations versus cuts. Lacerations are caused by blunt force trauma, and cuts are caused by sharp force trauma, usually by a sharp object. It is critical to correctly identify the injury and the mechanism of the injury:
Again to emphasize, when possible, the examiner may use a camera, measuring tools, and age-appropriate body diagrams to document the medical forensic examination. Keeping the Evidence Secure [7] Collection, preservation, and securing evidence are critical from the time it is collected. Completion of the chain of custody documentation is also critical. The chain of custody form must contain information about the evidence collected and must remain with the evidence until it is released to law enforcement. The patient's identifying information with the date, time, Law Enforcement involved with the case number must be included. Each person who has had contact or possession of a piece of evidence must be identified on the chain of custody form from the time it is collected and then released to Law Enforcement. If the chain of custody documentation is incomplete, inaccurate, or omitted, it will cause the evidence to be inadmissible in a court of law. Important Factors to Follow When Collecting Evidence [8] [9] Collect evidence correctly, preserve each specimen separately, use and change gloves often, avoid coughing or sneezing during the collection, use appropriate tools such as cotton-tipped applicators, sterile water, cardboard swab boxes, separate paper bags, and envelopes to prevent cross-contamination of samples collected. Allow swabs to dry thoroughly, dry with cool air only, no heat, package in a vented swab container boxes or paper. Do not use plastic. All these steps will preserve the integrity of the samples collected. To maintain accurate identification, each sample must be labeled with the patient's identifying information--patient's legal name, date of birth, medical record number, date, time, and the examiner's signature. The forensic examiner must be knowledgeable about the medical forensic examination and the different types of evidence of why, when, where, and how to collect, preserve, maintain and release the evidence. Many patients will present with a need for a medical forensic examination with the collection of evidence. Many professionals will be involved in the care of these patients; clinicians, nurses, advanced practice nurses, forensic nurse examiners, and other healthcare providers. The healthcare provider should have advanced training in the care and overall assessment of the patient. Ongoing education and training are important due to the ever-changing advances in treatment and technology and can be achieved by attending conferences, reviewing published research studies, and using current guidelines and recommendations. Each healthcare provider is an important member of the team to accomplish the best outcome for the patient and assist with future follow-up care and resources. Many patients will have law enforcement involved for investigative purposes and possible legal proceedings. The healthcare provider may be required to testify in a court of law at a later date, usually years later. A thorough examination must be performed, documentation completed, and the evidence collected at the time of the examination must be complete, accurate, and concise. |
When should evidence be collected and preserved
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