Preservation of Evidence

Preservation of evidence statutes require government agencies to retain evidence that may contain biological material so the evidence can be tested for perpetrator DNA or the absence of a defendant’s DNA. Currently, over half of the states have such statutes.

How evidence preservation statutes can assist prison inmates in post-conviction proceedings:
  • The case was tried prior to the widespread development of forensic DNA testing.
  • The case was tried with an early form of DNA testing that included the defendant as well as other people in the pool of people who could have donated the DNA material.
  • Neither the prosecution nor the defense requested DNA testing even though advanced testing techniques that could identify the perpetrator with specificity were available.
  • The results of biological testing can be combined with newly discovered, non-biological evidence, such as a recantation, to bolster the defendant’s innocence claim.
  • California state law requires governmental agencies retain evidence under certain circumstances. Penal Code section 1417.9 mandates government agencies generally retain evidence from a criminal case as long as the convicted inmate is imprisoned. The evidence must be stored in a manner that allows for DNA testing. The government may notify the defendant, his attorney, the public defender and district attorney in the county of conviction, and the attorney general that it intends to destroy the evidence prior to the inmate’s release from incarceration. If the convicted person files a letter to preserve evidence (“letter of preservation”) or other statutory objection to destruction, the government must temporarily retain the evidence.
Shortcomings of California’s evidence preservation law:
  • If the inmate’s time to object to destruction lapses (for example, due to never receiving notice of intent to destroy or inability to file to proper paperwork temporarily preventing destruction), the evidence can be destroyed, forever preventing an inmate from pursuing a potential avenue of exoneration.
  • The law contains no sanctions in the event an agency prematurely destroys evidence, so there is no incentive to adhere to the statute.
  • The court is without remedy (for example, to order a new trial or to reverse an inmate’s conviction) should the government destroy evidence without adhering to the statute.
  • No provisions require the preservation of evidence in unsolved cases. If crimes occur similar to the one of which the inmate was convicted, there is nothing to assure that evidence will remain available for testing to see if the same person committed both crimes.
  • Evidence can be destroyed prior to civil litigation in connection with a wrongful conviction or while the inmate is on parole, probation, or subject to sex offender registration, limiting the time period a convicted person has to seek testing to prove his innocence.
The importance of evidence preservation: the Arthur Whitfield case

Arthur Whitfield of Virginia was convicted of a 1981 sexual assault and accepted a plea bargain for another rape that happened the same night as the first. The victims described the perpetrator as clean-shaven, though Whitfield wore a beard. Both victims identified Whitfield as their assailant, one testifying she had ample opportunity to view her attacker. Whitfield presented an alibi defense at trial. Following conviction and plea bargain, he was sentenced to a total term of 63 years in prison.

In 2003, Whitfield filed a motion for post-conviction DNA testing. It appeared the evidence from the crime had been destroyed. Later that year, however, the state crime lab disclosed they had found relevant evidence inside a criminalist’s serology notebook – a storage location that defied lab protocol. The following year, Whitfield finally obtained DNA testing in his case. The testing implicated a third party as the perpetrator, a man already serving a life sentence for sexual assault. Whitfield was freed after 22 years of wrongful imprisonment.