Evidence Retention Laws

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1 A State-by-State Comparison Current as of 8/21/2013 As DNA and forensic testing becomes more prominent, laws and policies detailing standards for preserving this evidence are increasingly important. This chart summarizes the evidence retention laws of the 50 states and the District of Columbia. The chart shows the crimes covered under the evidence retention statute and the length of time that preservation is required. The chart also notes if there are exceptions allowing for earlier destruction upon petition and notice to defendant, attorneys, and other interested parties (sometimes, though not always, including the victim). The chart also notes if there are penalties for unlawful destruction of the evidence. 16 states do not have any form of evidence retention law. Prepared by: Brittany Ericksen, Staff Attorney Ilse Knecht, Project Manager, Deputy Director Public Policy All copyright laws apply to the proper use and crediting of these materials. This chart is supported by Grant No TA-AX-K048 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in these materials are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

2 Alabama Alaska Alaska Stat Arizona Ariz. Rev. Stat. Ann Arkansas Ark. Code Ann California 2 Ca. Penal Code Murder, manslaughter, criminally negligent homicide, sexual assault (1 st degree), sexual abuse of a minor (1 st degree) The period of time that the crime remains unsolved or 50 years, whichever ends first. Felony sex offense or homicide The period of time that a person who was convicted of a felony sexual offense or homicide remains incarcerated for that offense or until the completion of the person's supervised release. For a cold case: 55 years or until a person is convicted of the crime and remains incarcerated or under supervised release for that offense. Sex offense or violence offense For a violent offense: permanent retention. For a sex offense: 25 years following any conviction for a sex offense. For any conviction for any other felony for which the defendant's genetic profile may be taken by a law enforcement agency and submitted for comparison to the state DNA data base for unsolved offenses: 7 years. All criminal cases The period of time that any person remains incarcerated in connection with that case. 1 Many state statutes also provide that the evidence need not be preserved if it is to be returned to a third party, such as the victim, or if it is of such a size, bulk, or physical character as to render retention impracticable. 2 See also Sexual Assault Victims DNA Bill of Rights. Ca. Penal Code 680 (3). Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases. If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case prior to the expiration of the statute of limitations as set forth in Section 803, a victim of a violation of Section 261, 261.5, 262, 286, 288a, or 289 shall be given written notification by the law enforcement agency of that intention. 2

3 Colorado Colo. Rev. Stat The investigation of a felony that does not result in or has not resulted in charges being filed, or filed charges of a felony or sex offense A felony or sex offense that does not result in or has not resulted in charges being filed: for the length of the statute of limitations for the felony crime that was investigated. Felony or sex offense resulting in a conviction: for the life of the defendant who is convicted. 3 Connecticut Conn. Gen. Stat jj Delaware District of Columbia D.C. Code Florida Fla. Stat Georgia Ga. Code Ann Capital murder, murder with special circumstance, the conviction of a person of a crime after trial, or upon order of the court for good cause shown A crime of violence, resulting in a conviction or adjudication as a delinquent For the term of incarceration. 5 years or as long as any person incarcerated in connection with that case or investigation remains in custody, whichever is longer. Felony For a death penalty case: 60 days after execution of the sentence. For all other cases: a governmental entity may dispose of the physical evidence if the term of the sentence imposed in the case has expired and no other provision of law or rule requires that the physical evidence be preserved or retained. Criminal case For death penalty cases: until the sentence in the case has been carried out. For felony cases: the period of time that the crime remains unsolved or until the sentence in the case is completed, whichever occurs last This only applies to lesser felonies (i.e., not class 1 felonies or sex offenses). 4 After a period of 5 years. 5 If willful or malicious. 3

4 Hawaii Haw. Rev. Stat. 844D-126 Idaho Illinois 725 Ill. Comp. Stat. 5/116-4 Indiana Iowa Iowa Code Kansas Kentucky Ky. Rev. Stat. Ann A case in which there has been a judgment of conviction Homicide, sexual offenses, attempts, and any felony for which a genetic profile may be added to the database Until the later occurring of either: The exhaustion of all appeals of the case to which the evidence is related. The completion of any sentence, including any term of probation or parole, imposed on the defendant in the case to which the evidence relates. For death penalty cases: permanent retention. For any conviction for an offense or an attempt of homicide or sexual assault: through the completion of the sentence, including the period of mandatory supervised release for the offense, or January 1, 2006, whichever is later. For any other felony for which the defendant's genetic profile may be taken by a law enforcement agency and submitted for comparison in a forensic DNA database for unsolved offenses: 7 years. Criminal actions 3 years beyond the limitations for the commencement of criminal actions. Capital crimes, all class A, B, C felonies, and certain D felonies (sexual offenses) The period of time that any person remains incarcerated in connection with that case. 4

5 Louisiana La. Rev. Stat. Ann. 15:621 Maine Me. Rev. Stat. tit. 15, 2138 Maryland Md. Code. Ann Massachusetts Mass. Gen. laws. Ch. 278A, 16 Michigan Mich. Comp. Laws Minnesota Minn. Stat Mississippi Miss. Code Ann Missouri Mo. Rev. Stat Homicide, rape, armed robbery, and attempts Felonies resulting in conviction and sentencing Murder (1 st and 2 nd degree), rape (1 st and 2 nd degree), sexual offenses (1 st and 2 nd degree) No time limit, but this applies only in cases where an offender has been convicted at trial or has entered an Alford plea and the offender is in the custody of the Department of Public Safety and Corrections. The period of time that any person is incarcerated in connection with that case. The time of the sentence, including any consecutive sentence imposed in connection with the offense. Criminal offense The period of time that a person remains in the custody of the commonwealth or under parole or probation supervision in connection with that crime, without regard to whether the evidence or biological material was introduced at trial. Felony The period of time that any person is incarcerated in connection with that case. Crimes resulting in conviction Until the expiration of the sentence. A crime Evidence secured in relation to an investigation or prosecution of a crime for the period of time that the crime remains unsolved or for the period of time that the person convicted of that crime remains in custody. Felony No length of time specified: Any evidence leading to a conviction of a felony described in subsection 1 of section which has been or can be tested for DNA shall be preserved by the investigating law enforcement agency Only in cases of willful or wanton misconduct or gross negligence. 7 Only in cases of willful or wanton misconduct or gross negligence. 5

6 Montana Mont. Code Ann Nebraska Neb. Rev. Stat Nevada Nev. Rev. Stat New Hampshire N.H. Rev. Stat. Ann. 651-D:3 New Jersey New Mexico N.M. Stat. Ann. 31-1A-2 New York Felony A minimum of 3 years after the conviction in the case becomes final or for any period beyond 3 years that is required by a court order issued within 3 years after the conviction in the case becomes final. Criminal case For such period of time as any person remains incarcerated in connection with that case. 8 Felony (category A or B) Until the expiration of any sentence imposed on the defendant. Criminal or delinquency investigation or prosecution 5 years from the date of conviction or adjudication, or as long as any person connected with that case or investigation remains in custody, whichever is longer. 9 Felony For not less than the period of time that a person remains subject to incarceration or supervision in connection with the investigation or prosecution Neb. Rev. Stat (4). The Department of Health and Human Services shall preserve biological material obtained for the purpose of determining the concentration of alcohol in a person's blood for two years unless a request is made for the retention of such material beyond such period in connection with a pending legal action. 9 When post-conviction DNA testing is being considered by the court, the state shall, upon request, reactivate victim services for the victim of the crime being reinvestigated during the reinvestigation of the case, during the pendency of the proceedings, and, as determined by the court after consultation with the victim and/or victim advocate, following final adjudication of the case. 10 After a period of 5 years. 6

7 North Carolina N.C. Gen. Stat. 15A-268 North Dakota Capital offenses, felonies (class A E) For conviction resulting in a sentence of death: until execution. For conviction resulting in a sentence of life without parole: until the death of the convicted person. For conviction of any homicide, sex offense, assault, kidnapping, burglary, robbery, arson, or burning, for which a class B1-E felony punishment is imposed: during the period of incarceration and mandatory supervised release, except in cases where the person convicted entered and was convicted on a plea of guilty, in which case the evidence shall be preserved for the earlier of 3 years from the date of conviction or until released. For a criminal investigation of any homicide or rape, in which no charges are filed: the period of time that the crime remains unsolved. 7

8 Ohio Ohio Rev. Code Ann Oklahoma Okla. Stat. tit. 22, 1372 Aggravated murder, murder, voluntary manslaughter, involuntary manslaughter (1 st or 2 nd degree), vehicular manslaughter (1 st or 2 nd degree), rape, attempted rape, sexual battery, gross sexual imposition of a person under 13 Violent felony offense Aggravated murder and murder: for the period of time that the offense or act remains unsolved. Manslaughter, involuntary manslaughter, or vehicular homicide that is a felony of the 1 st or 2 nd degree, rape, attempted rape sexual battery, or gross sexual imposition of a person under 13: for a period of 30 years if the offense or act remains unsolved. If any person is convicted of or pleads guilty to the offense, or is adjudicated a delinquent child for committing the delinquent act, for the earlier of the following: (i) the expiration of the latest of the following periods of time that apply to the person: the period of time that the person is incarcerated, is in a department of youth services institution or other juvenile facility, is under a community control sanction for that offense, is under any order of disposition for that act, is on probation or parole for that offense, is under judicial release or supervised release for that act, is under post-release control for that offense, is involved in civil litigation in connection with that offense or act, or is subject to registration and other duties imposed for that offense or act under the sex offender registry or (ii) 30 years. If after the period of 30 years the person remains incarcerated, then the governmental evidence-retention entity shall secure the biological evidence until the person is released from incarceration or dies. For such period of time as any individual convicted of that crime remains incarcerated. 8

9 Oregon Or. Rev. Stat Pennsylvania Rhode Island R.I. Gen. Laws Aggravated murder, murder, manslaughter (1 st degree), manslaughter (2 nd degree), aggravated vehicular homicide, rape (1 st degree), sodomy (1 st degree), or unlawful sexual penetration (1 st degree) A crime For aggravated murder, murder, rape (1 st degree), sodomy (1 st degree), or unlawful sexual penetration (1 st degree): 60 years from the date each person is convicted of the offense or until each person convicted of the offense has died, whichever is earlier. For aggravated vehicular homicide or manslaughter (1 st or 2 nd degree): until each person convicted of the offense has served the person's sentence. If no person is convicted of the covered offense or the law enforcement agency investigating the covered offense closes the case for a reason other than the conviction of a person: until the expiration of the statute of limitations. During the term of the defendant's incarceration resulting from his or her conviction after trial Only if destruction was malicious. The court may not order the reversal of a conviction under this subsection on the sole grounds that the biological evidence is no longer available. 9

10 South Carolina S.C. Code Ann , et. seq. South Dakota Tennessee Murder; killing by poison; killing by stabbing or thrusting; voluntary manslaughter; homicide by child abuse; aiding and abetting a homicide by child abuse; lynching (1 st degree); killing in a duel; spousal sexual battery; criminal sexual conduct (1 st degree); criminal sexual conduct (2 nd degree); criminal sexual conduct (3 rd degree); criminal sexual conduct with a minor; arson (1 st degree) resulting in death; burglary (1 st degree) which the person is sentenced to ten years or more; armed robbery for which the person is sentenced to ten years or more; damaging or destroying a building, vehicle, or property by means of an explosive incendiary resulting in death; abuse or neglect of a vulnerable adult resulting in death; sexual misconduct with an inmate, patient, or offender; unlawful removing or damaging of an airport facility or equipment resulting in death; interference with traffic-control devices or railroad signs or signals resulting in death; driving a motor vehicle under the influence of alcohol or drugs resulting in death; obstruction of railroad resulting in death; or accessory before the fact to any of the above offenses Until the person is released from incarceration, dies while incarcerated, or is executed for an enumerated offense. However, if the person is convicted or adjudicated on a guilty or nolo contendere plea for an enumerated offense, the physical evidence and biological material must be preserved for 7 years from the date of sentencing, or until the person is released from incarceration, dies while incarcerated, or is executed for an enumerated offense, whichever comes first. 10

11 Texas Tex. Code Crim. Pro. Ann. Art Felony offense or conduct constituting a felony offense If there is an unapprehended actor associated with the offense: for not less than 40 years or until the applicable statute of limitations has expired. For a case in which a defendant has been convicted, placed on deferred adjudication community supervision, or adjudicated as having engaged in delinquent conduct and there are no additional unapprehended actors associated with the offense: o until the inmate is executed, dies, or is released on parole, if the defendant is convicted of a capital felony; o until the defendant dies, completes the defendant's sentence, or is released on parole or mandatory supervision, if the defendant is sentenced to a term of confinement or imprisonment in the Texas Department of Criminal Justice; o until the defendant completes the defendant's term of community supervision, including deferred adjudication community supervision, if the defendant is placed on community supervision; o until the defendant dies, completes the defendant's sentence, or is released on parole, mandatory supervision, or juvenile probation, if the defendant is committed to the Texas Youth Commission; or o until the defendant completes the defendant's term of juvenile probation, including a term of community supervision upon transfer of supervision 11 to a criminal court, if the defendant is placed on juvenile probation.

12 Utah Vermont Virginia Va. Ann. Code :1 Washington West Virginia Wisconsin Wis. Stat , , , Wyoming Felony For non-capital felonies: up to 15 years from the time of conviction, unless the court determines, in its discretion, that the evidence should be retained for a longer period of time. For capital offenses: until the judgment is executed. A crime Until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date. 12

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