Preserving Evidence To Convict the Guilty and Protect the Innocent: Massachusetts’ Post-Conviction Access to Forensic and Scientific Analysis Act

By David M. Siegel and Gregory I. Massing

Legal Analysis

Kenneth Waters spent 18 years in Massachusetts state prison for a murder he did not commit.  His sister, Betty Anne Waters, put herself through college and law school for the sole purpose of exonerating her brother, a story popularized in the 2010 feature film “Conviction.”  The evidence necessary to show Waters’ innocence – Type O blood collected from the crime scene – was not located until 16 years after his conviction.[i]

The Post Conviction Access to Forensic and Scientific Analysis Act (hereinafter, “the Act”) went into effect on May 17, 2012.    The Act inserted a new chapter 278A into the Massachusetts General Laws, providing a comprehensive framework for criminal defendants who have been found guilty to gain access to evidence and forensic testing to support a claim of factual innocence.  In our article in the Summer 2012 edition of the BBJ, we outlined the new procedure for defendants to seek this access and for judges to evaluate these requests.  But what if the evidence needed to support the claim of innocence has been lost, misplaced, discarded, or destroyed?

The Act, for the first time in Massachusetts, mandates state-wide retention and preservation of evidence in criminal cases.  To carry out this mandate, the Act gave the Director of the State Police Crime Lab the authority to promulgate regulations for evidence retention.  This article outlines these provisions and explores the contours of possible regulation in this area.

I. New Statutory Framework for Evidence Preservation

As Kenneth Waters’s story demonstrates, one of the greatest roadblocks for defendants seeking to prove that they were wrongfully convicted is the difficulty in locating and obtaining access to the biological or physical materials necessary to demonstrate their innocence.  This phenomenon is not limited to Massachusetts.  For example, the CardozoLawSchool’s Innocence Project, the first in the nation, closed 233 cases without resolution between 2004 and 2008.  Of these, 22% were closed because evidence had been lost or destroyed.[ii]  Depending on the case, the materials might be evidence (held by the court) or items collected during an investigation but not used, left in police department evidence lockers or discarded once the case was closed.

The Commonwealth has a constitutional obligation to produce exculpatory evidence in criminal cases so that a defendant may inspect and test it.[iii]  However, police departments have only limited, specific statutory duties related to particular types of evidence collection.  See, e.g., G.L. c. 41, § 97B (requiring municipal police to preserve rape kits).  Court clerks have only a general duty to maintain papers filed with them.  G.L. c. 221, § 14.   Prior to passage of the Act, no single legal authority obligated state actors to preserve materials collected during a criminal investigation.

Massachusetts is not unique in this regard.  A 2007 study conducted for the U.S. Department of Justice of 2,250 law enforcement agencies across the country, including police departments, prosecutors’ offices, and government crime labs, found that fewer than half (46%) had a policy for preserving biological material secured in the investigation of an offense in which a defendant was convicted.  About half of these policies (51.4%) were established by state law, and most of the rest (42.7%) were set by the agency.[iv]    Of the 49 states that have passed legislation providing for post-conviction DNA testing, only slightly more than half included an evidence preservation requirement.[v]

Massachusetts is now one of those states.  The Act creates the first statewide statutory duty for governmental entities in possession of materials collected during an investigation that resulted in a criminal conviction to systematically retain those materials for the duration of a convicted defendant’s sentence, including any term of parole or probation.   [vi]  Specifically, the Act mandates, “Any governmental entity that is in possession of evidence or biological material that is collected for its potential evidentiary value during the investigation of a crime, the prosecution of which results in a conviction, shall retain such evidence or biological material . . . without regard to whether the evidence or biological material was introduced at trial.”  Id.

Two aspects of this brief but important provision bear emphasis.  First, the term “evidence” is used in its broadest meaning, not limited to exhibits that are formally admitted into evidence.  The statute expressly states that evidence or biological material collected for its “potential evidentiary value” in an investigation must be retained, regardless of whether or not it is introduced at trial.

Second, the term “governmental entity,” used to describe those agencies subject to the retention requirement, is defined elsewhere in the Act as “an official body of the commonwealth, or of a county, city or town within the commonwealth.”  Id. § 1.  Accordingly, state and municipal police departments that collect evidence for investigative purposes, as well as governmental forensic service units like the State Police and Boston Police crime laboratories, are now required by law to retain these materials.  By its plain terms, the Act also applies to courts, which clearly satisfy the definitional standard of “official bodies of the commonwealth.”  Thus, courts in possession of evidence or biological materials introduced at trial – or even merely marked for identification or used as a chalk – must retain and preserve these materials.

The retention requirement is not absolute.  For example, the Act recognizes that evidence seized for investigative purposes or introduced at trial may belong to third parties and may be subject to motions for the return of property.  Thus, evidence or biological material “need not be preserved if it is to be returned to a third party.”  Id. § 16(a).  Likewise, the legislature was cognizant that some materials seized in the course of an investigation – automobiles, for instance – cannot easily be stored indefinitely.  Accordingly, governmental entities are excused from retaining objects “of such a size, bulk or physical character as to render retention impracticable.”  Id.

The Act is not specific as to the manner in which evidentiary materials in general, or biological materials in particular, must be maintained, except to say that they must be kept “in a manner that is reasonably designed to preserve the evidence and biological material and to prevent its destruction or deterioration.”  Id.   Rather, the Act delegates to the director of the State Police Crime Lab, in consultation with the Forensic Sciences Advisory Board, the authority to promulgate regulations governing the materials’ retention and preservation.  Id. § 16(b).

That Board, established under G.L. c. 6, § 184A, is charged with advising the Secretary of Public Safety and Security “on all aspects of the administration and delivery of criminal forensic sciences in the commonwealth.”  Id.  The Board is comprised of the undersecretary of public safety for forensic sciences, who serves as chair, the attorney general, the colonel of the state police, the president of the Massachusetts Chiefs of Police Association, the president of the Massachusetts Urban Chiefs Association, the president of the Massachusetts District Attorney’s Association, a district attorney designated by the Massachusetts District Attorney’s Association, and the commissioner of the department of public health or their designees.  Id.  The composition of the Board is heavily weighted toward prosecutorial and police interests, and does not include any scientists.

In conjunction with its recommendation that the legislature pass the Act, the 2009 report of the Boston Bar Association Task Force to Prevent Wrongful Convictions, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, recommended that the Board should be expanded by adding three laboratory scientists and three members of the bar, representing a broader range of criminal justice and scientific stakeholders.  Id. at 48, 50-53 & App. B. Senator Cynthia Creem filed a bill to implement this recommendation, Mass. Senate Bill No. 1204, in January 2011, but the bill has not moved beyond being referred to committee.  While the Board’s meetings are open to the public, and recent Board chairs have invited a broad range of stakeholders to attend, regular participation in the Board’s work by scientific professionals requires formal expansion of its membership.  The proposed legislation would place the Board’s consultative role with respect to the retention and preservation regulations on a firmer scientific basis.

Lastly, the Act provides criminal and civil immunity for governmental officials and employees acting in good faith to meet its requirements, including, but not limited to, the evidence retention provisions.  G.L. c. 278A, § 17(a), (c).  Officials who engage in “willful or wanton misconduct or gross negligence” that results in the destruction of evidence, however, may be subject to proceedings for contempt.  Id. § 17(b).

II. Regulations To Implement Evidence Preservation

As mentioned above, the Act delegates the responsibility for regulating the retention and preservation of evidence and biological material, “in a manner that is reasonably designed to preserve the evidence and biological material and to prevent its destruction or deterioration,” to the director of the State Police Crime Lab.   Id. § 16.   The Act gives the director wide berth regarding the content of the regulations, requiring only that the director include “standards for maintaining the integrity of the materials over time” and chain-of-custody procedures:  “the designation of officials at each governmental entity with custodial responsibility and requirements for contemporaneously recorded documentation of individuals having and obtaining custody of any evidence or biological material.”  Id.

Carrying out this broad mandate presents some obvious challenges.  While spelling out best practices for retention and preservation of evidence – for example, the proper packaging of materials, and temperature and humidity levels at which they should optimally be kept – is a relatively straightforward proposition, putting these practices into effect is another matter.  Nothing in the Act ensures that police departments, especially in smaller municipalities, will possess the storage space – and, if necessary, refrigerator units – to adhere to best practices.  Likewise, regulations can easily require police departments to assign evidence custodians and to maintain careful logs of what materials are being stored, the case or cases they are associated with, when materials are removed, and by whom.  Less obvious is whether police departments have the available personnel, records managements systems, and information officers to update and maintain these systems.  Academic research recommendations aptly note, “[I]t is imperative that once state statutes are established, there must be adequate agency funding to allow crime laboratories and law enforcement to quickly and efficiently address their policies and procedures to support the statutes.”[vii]

Concerns regarding storage space and funding are especially acute in light of the Act’s requirement that government entities preserve not only “biological material,” but also any “evidence” collected in an investigation.  The original versions of the bills filed in the Senate and the House in January 2011, consistent with the BBA Task Force’s recommendation, required only the retention of “biological evidence.”  See Mass. Senate Bill No. 753, proposed G.L. c. 278A, § 16(a) (filed Jan. 21, 2011); Mass. House Bill No. 2165 (filed Jan. 20, 2011); Getting It Right, App. A.   Limiting the retention requirement to “biological evidence” is consistent with the requirements of the federal Innocence Protection Act.  See 18 U.S.C. §3600A.

In the course of enactment, however, the material required to be retained was broadened to include any “evidence or biological material.”[viii]  This change may have been due to the legislature’s belief that evidence other than biological material, such as a murder weapon that was never dusted for fingerprints, or an article of clothing potentially carrying microscopic fluids or fibers not previously susceptible to DNA testing, might yield proof of a defendant’s innocence – a belief that is consistent with research recommendations.[ix]

Mandating the retention of only biological materials would have been less onerous for state and local law enforcement agencies, whereas the need to retain all evidence might create financial burdens for police departments in terms of logistics and procuring suitable storage space.  The regulations might help alleviate these problems by providing for the sharing of retention responsibilities among forensic laboratories and police departments – so long as responsibility is clearly delineated and strong tracking and security systems are in place.  In addition, based on the Act’s exemption for the retention of large items that are impracticable to store, the regulations might include recommendations and methods for storing samples or cuttings of materials that will preserve their potential evidentiary value.[x]

Adhering to best practices for evidence collection, as well as retention, is a critical component of effective evidence preservation, as the evidence retained is only as good as that collected.  The statewide regulations must ensure that all evidence and biological material subject to the Act – that is, “collected for its potential evidentiary value” – is carefully identified and promptly logged in, preferably in a centralized record-keeping system. The director of the State Police Crime Lab should examine ways to leverage and strengthen existing Laboratory Information Management Systems (LIMS) and police records management systems to facilitate and expedite this process.  Law enforcement training on evidence collection should, at a minimum, include the new requirements for evidence retention created by the Act and any regulations.   (For additional recommendations regarding law enforcement training and practices for evidence collection, see Getting It Right at 53-54.)

III. Conclusion

By creating an obligation for the Commonwealth to retain and preserve material from criminal investigations, Massachusetts’s Post-Conviction Access to Forensic and Scientific Analysis Act provides a tool to help solve future cases, as well as to rectify – and shorten the duration of – miscarriages of justice.  This tool is likely to become more powerful as techniques of forensic and scientific analysis improve.  Through the intelligent and strategic use of the regulatory authority granted under the Act, the director of the State Police Crime Lab, in conjunction with the Forensic Sciences Advisory Board, can ensure that the law enforcement agencies of the Commonwealth responsibly discharge this duty.

David M. Siegel is a Professor of Law at New England Law | Boston specializing in Criminal Law, Criminal Procedure and Evidence.

Gregory I. Massing is Executive Director of the RappaportCenter for Law and Public Service at SuffolkUniversityLawSchool. He was General Counsel of the Massachusetts Executive Office of Public Safety from 2007 through 2011.

(The authors were members of the Boston Bar Association’s 2008-2009 Task Force to Prevent Wrongful Convictions. The opinions expressed here are those of the authors and do not represent those of the Task Force, its members or the BBA.) 


[i] This account of the Waters case is based on the Innocence Project’s profile, www.innocenceproject.org/Content/Kenny_Waters.php.

[ii] Kevin J. Strom, Matthew J. Hickman & Jeri D. Ropero-Miller, Evidence Retention Policies in U.S. Law Enforcement Agencies: Implications for Unsolved Cases and Postconviction DNA Testing, 27 J. Contemp. Crim. Justice 133, 134 (2011) (hereinafter “Evidence Retention Policies”).

[iii] See Commonwealth v. Neal, 392 Mass. 1, 11-12 (1984) (state has duty to produce exculpatory evidence for defendant to inspect and test); Commonwealth v. Woodward, 427 Mass. 659, 679 (1998) (duty extends to those “who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office”).

[iv] See Kevin J. Strom, Jeri Ropero-Miller, Shelton Jones, Nathan Sikes, Mark Pope & Nicole Horstmann, The 2007 Survey of Law Enforcement Forensic Evidence Processing 3-9 to 3-10 (Oct. 2009).

[v] Evidence Retention Policies at 142.

[vi] The Act thus ensures that the Commonwealth complies with federal requirements for incentive grants for post-conviction DNA testing, training of criminal justice personnel, and elimination of testing backlogs.  Section 413 of the federal Innocence Protection Act of 2004, P.L. No. 108-405 requires that eligible grant receiving entities (including law enforcement agencies) demonstrate that, for all jurisdictions within their state, retention and preservation of biological materials is done “in a manner comparable to” federal preservation provisions, inserted by section 411 and codified at 18 U.S.C. §3600A.

[vii]  Evidence Retention Policies at 144.

[viii] Compare Senate Bill No. 753, the bill as originally filed, with Senate Bill No. 1987, the substitute bill reported out of the Senate Ways and Means Committee.  See Senate Journal July 27, 2011.

[ix] Evidence Retention Policies at 142 (noting potential value of “all forensic evidence including latent prints, trace evidence, and firearms and toolmarks, not just DNA,” for unsolved and postconviction cases).

[x] For additional recommendations regarding how to “maximize the potential to use forensic evidence in the future while minimizing the cost of retention,” see Evidence Retention Policies at 144-45.



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