What comes to mind when you think about physical evidence that is also biological evidence? It might be a bloodstained shirt or the contents of a sexual assault examination kit. What about a bedspread or a laundry basket? How about a door or a phone booth? These are all items I have seen in evidence rooms across North Carolina in my work with the North Carolina Conference of Clerks of Superior Court on receiving, storing, and disposing of evidence. It is possible that each of these items meets the statutory definition of biological evidence. G.S. 15A-268 establishes that definition and provides explicit requirements around the preservation and disposal of biological evidence, including a specific inquiry into biological evidentiary value that courts must engage in each time physical evidence is offered or admitted into evidence in a criminal proceeding.
Biological Evidence Defined
G.S. 15A-268(a) defines biological evidence as
[T]he contents of a sexual assault examination kit or any item that contains blood, semen, hair, saliva, skin tissue, fingerprints, or other identifiable human biological material that may reasonably be used to incriminate or exculpate any person in the criminal investigation, whether that material is catalogued separately on a slide or swab, in a test tube, or some other similar method, or is present on clothing, ligatures, bedding, other household materials, drinking cups, cigarettes, or any other item of evidence.
Under this definition, any item which contains identifiable human biological material that may reasonably be used to incriminate or exculpate the defendant is considered biological evidence. It is possible that the bedspread, laundry basket, door, and phone booth might all meet these requirements.
Duty of the Court to Inquire about Biological Evidence
G.S. 15A-268(a3) mandates that courts engage in an inquiry regarding the biological evidentiary value of all physical evidence offered or admitted during a criminal trial. The statute provides
[w]hen physical evidence is offered or admitted into evidence in a criminal proceeding of the General Court of Justice, the presiding judge shall inquire of the State and defendant as to the identity of the collecting agency of the evidence and whether the evidence in question is reasonably likely to contain biological evidence and if that biological evidence is relevant to establishing the identity of the perpetrator in the case. If either party asserts that the evidence in question may have biological evidentiary value, and the court so finds, the court shall instruct that the evidence be so designated in the court’s records and that the evidence be preserved pursuant to the requirements of this section [G.S. 15A-268(a1)].
This inquiry is important because the court’s finding that the evidence may have biological evidentiary value triggers the duty of the clerk to preserve the evidence in accordance with the special preservation requirements for biological evidence. G.S. 15A-268(a4). Those special requirements include preservation “in a manner reasonably calculated to prevent contamination or degradation of any biological evidence that might be present, subject to a continuous chain of custody, and securely retained with sufficient official documentation to locate the evidence.” G.S. 15A-268(a1). The court’s finding that the evidence may have biological evidentiary value also triggers a requirement that the clerk return the evidence to the collecting agency (usually law enforcement) once the clerk’s role as custodian is concluded. G.S. 15A-268(a4).
What if the Court Does not Inquire as to Biological Evidentiary Value?
The introduction of physical evidence without the required inquiry into biological evidentiary value places clerks, defendants, and prosecutors in a precarious position. G.S. 15A-268(a1)—the statute that establishes special requirements for the preservation of biological evidence—begins with the phrase “[n]otwithstanding any other provision of law…” This provision goes on to require a custodial agency to follow the special preservation requirements for biological evidence for “any physical evidence, regardless of the date of collection, that is reasonably likely to contain any biological evidence collected in the course of a criminal investigation or prosecution.” According to Rule 14 of the General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure, the clerk becomes the custodian of all exhibits offered or admitted into evidence unless the court orders an alternate custodian. As such, read alone, it would seem that clerks are bound to follow the special preservation requirements for any physical evidence in their custody that is reasonably likely to contain biological evidence after that evidence is offered or admitted in a criminal matter.
However, as discussed previously, a different subsection of the same statute, G.S. 15A-268(a3), provides that clerks must preserve evidence according to the special preservation requirements for biological evidence contained in G.S. 15A-268(a1) following a finding by the court that the evidence may have biological evidentiary value. It is not clear how G.S. 15A-268(a1) and G.S. 15A-268(a3) function together and whether the clerk has a statutory obligation for preservation as biological evidence in the absence of a finding by the court pursuant to the inquiry required by G.S. 15A-268(a3). This leaves the clerk in the precarious position of uncertainty about the statutory requirements around evidence preservation.
Defendants and prosecutors also benefit from the court addressing the question of whether or not physical evidence may have biological evidentiary value. Uncertainty regarding the need to preserve evidence as biological risks preservation of evidence in a manner that is prone to contamination. In addition, the defendant has the right to request an inventory of biological evidence relevant to the defendant’s case that is in the clerk’s custody. G.S. 15A-268(a7). The defendant’s and the prosecutor’s ability to access an accurate inventory and to adequately litigate any appellate issues related to innocence could be substantially impacted by failure to categorize evidence as biological and any contamination or degradation of evidence. Therefore, while the statute places the obligation of inquiry into biological evidentiary value on the court, defense counsel and prosecutors may want to be mindful of the need for the court to address the question any time a piece of physical evidence is introduced in a criminal matter.
How Should Biological Evidence be Preserved?
The North Carolina Conference of Clerks of Superior Court Handing Evidence Work Group collaborated with the North Carolina State Crime Laboratory to develop clear guidance on how biological evidence should be stored in order to prevent contamination and degradation. As a result, the State Crime Laboratory released an attachment to its guide on the preservation of biological evidence in August of 2020. That attachment provides guidance on packaging and storing both biological and non-biological evidence. While most evidence can be stored in a climate-controlled room, the attachment details the kinds of evidence that need to be stored in a refrigerator or a non-frost free freezer. The attachment also explains the kind of packaging needed to preserve different types of evidence.
I also developed a quick guide to the preservation, storage, and disposal of biological evidence for clerks. You can access that guide here. You’ll find a summary of the State Crime Laboratory guidance in the guide as well as information on the special preservation periods and disposal requirements that apply to biological evidence.
Why Does This Matter?
It may feel like a lot to have the court question the biological evidentiary value of every piece of physical evidence offered or admitted in a criminal matter. However, that is what our statute requires. In addition, advancing science around the use of DNA evidence has played a critical role in the exoneration of people who have been wrongly convicted. For example, Joseph Sledge was incarcerated for over 36 years for a murder that subsequent DNA analysis of hair samples proved he did not commit. Mr. Sledge’s wrongful conviction resulted in his substantial loss of liberty, failure to convict the actual killer, and millions of dollars in settlements with the State of North Carolina, the Bladen County sheriff’s office, the State Bureau of Investigation, and the Columbus County clerk of court. Proper preservation of biological evidence can help prevent and reverse this kind of wrongful conviction. Regular judicial inquiry into biological evidentiary value as required by G.S. 15A-268(a3) is an important first step in the proper preservation process.