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Rules for Preservation of Biological Evidence - Title 18 U.S. Code § 3600A

Posted by Dmitry Gorin | Sep 04, 2023

With advancements in forensic science, DNA testing of biological evidence has become an increasingly powerful tool in criminal investigations and trials. It can provide a definitive link between a suspect and a crime scene or victim or conclusively exclude someone from suspicion.

Rules for Preservation of Biological Evidence - Title 18 U.S. Code § 3600A
There are specific rules and regulations on how the government must preserve biological evidence.

However, this potential can only be realized if the evidence is preserved correctly. Improper handling, storage, or destruction of biological evidence can compromise its integrity and undermine its value in court.

To that end, Title 18 U.S. Code Section 3600A outlines the specific rules under which the U.S. government must preserve and protect the biological evidence it gathers during a criminal investigation.

18 U.S.C. 3600A says, “Notwithstanding any other provision of law, the Government shall preserve biological evidence that was secured in the investigation or prosecution of a Federal offense if a defendant is sentenced to imprisonment for such offense.

(b) For purposes of this section, the term “biological evidence” means;

(1) a sexual assault forensic examination kit; or

(2) semen, blood, saliva, hair, skin tissue, or other identified biological material.

(d) Nothing in this section shall preempt or supersede any statute, regulation, court order, or other provision of law that may require evidence, including biological evidence, to be preserved.

(g) Nothing in this section shall provide a basis for relief in any Federal habeas corpus proceeding.”

What is the Scope and Purpose of 18 U.S.C. 3600A?

The primary purpose of this law is to ensure that biological evidence — such as blood, hair, skin cells, or other bodily materials — is preserved accurately and effectively.

This is crucial because DNA evidence can be decisive in proving innocence or guilt in a criminal proceeding.

By preserving this evidence properly, the law ensures that defendants can present exculpatory evidence—i.e., evidence that may exonerate them—at any point during their trial or post-conviction proceedings.

A related federal law is 18 U.S. Code 3600 DNA testing, which says upon a written motion by someone sentenced to imprisonment or death after a conviction for a federal offense, the court that entered the judgment shall order DNA testing of specific evidence if the court finds that certain conditions apply.

What are the Rules for Preserving Biological Evidence?

Under Section 3600A, the federal government is legally obligated to preserve biological evidence collected in the investigation or prosecution of a crime if the defendant has been sentenced to prison.

This duty begins when a federal agency, such as the Federal Bureau of Investigation (FBI,) first acquires the evidence about a federal offense, and it continues until the defendant has exhausted all appeals and post-conviction remedies. For purposes of this law, biological evidence includes any/all of the following:

  • Sexual assault forensic examination kits;
  • Semen;
  • Blood;
  • Hair;
  • Saliva;
  • Skin tissue;
  • Any other identified biological material.

What Are the Exceptions to the Rule?

18 U.S.C. 3600A stipulates specific conditions under which the government is permitted to destroy or get rid of biological evidence. These include the following:

  • After the defendant has exhausted "all opportunities for direct review of the conviction." In such cases, the defendant must be given advance notice and have 180 days to file a motion to prevent the destruction of the evidence (Section 3600A(c)(1)).
  • If the evidence must be returned to its rightful owner or cannot practically be preserved due to its "size, bulk, or physical character." In such cases, the government must take reasonable measures to preserve some of the biological evidence for future testing (Section 3600A(c)(2)(A)).
  • If the biological evidence in question has already been tested according to legal regulations and clearly defines the defendant as a source of the evidence (Section 3600A(c)(3)).

What Are the Penalties for Destruction of Biological Evidence?

Notably, there are additional rules and regulations for preserving biological evidence under federal law.

Penalties for Destruction of Biological Evidence
It's a federal crime under law to intentionally destroy or tamper with biological evidence.

For example, 18 U.S.C. 3600A also makes it a crime for anyone to "knowingly and intentionally" destroy or tamper with biological evidence, whether to prevent DNA testing or to prevent the evidence from being introduced at trial (Section 3600A(f)).

For example, if the evidence would exonerate you as a defendant and a prosecution team member deliberately corrupt the evidence, they could be charged with a crime.

Likewise, if you tamper with your biological evidence to keep DNA testing from identifying you, you could be charged with a crime.

In either case, the penalty for unlawfully destroying biological evidence is:

  • Up to 5 years in federal prison, and
  • Fines up to $250,000.

What Are the Implications for Defendants?

For federal criminal defendants, these rules mean you have a right to access preserved evidence relevant to your case.

You also have the right to challenge the government's handling of the evidence and to request further DNA testing on the evidence even after you have been convicted. Some examples of why your attorney might request access to biological evidence post-conviction include:

  • Exoneration: DNA evidence can often conclusively prove a defendant's innocence. If such evidence was unavailable or not used during the original trial, accessing it post-conviction could lead to exoneration.
  • Ineffective Counsel: If a defendant believes their legal representation during the trial did not adequately consider or address biological evidence in their defense, they may wish to access this evidence to argue ineffective counsel in an appeal or post-conviction relief motion.
  • Newly Available Testing Methods: As forensic science advances, new DNA testing methods continue to emerge. Evidence that might not have been significant during trial could become crucial with these advancements.
  • Discrepancies or Errors in Initial Testing: If there is evidence of discrepancies in the initial testing or errors in handling the evidence, accessing the preserved DNA evidence could shed light on these issues and provide grounds for appeal or a new trial.

Finally, if your attorney can show the corruption of DNA evidence resulted in an unfair trial or conviction, this could be grounds for dismissing the charges or vacating the sentence. Contact our law firm for a case review and to discuss legal options. Eisner Gorin LLP has offices in Los Angeles, California.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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