In any case where a person is sentenced to death, Virginia Code § 19.2-270.4:1 requires that the court entering the judgment order any human biological evidence or representative samples be transferred from the governmental entity having custody to the Department for storage and preservation. This evidence is stored by DFS until the judgment is executed. If the person’s sentence is reduced, the Department is permitted under the statute to transfer the evidence to the original investigating law enforcement agency for storage.
Any person convicted of a felony may also seek the storage, preservation, and retention of specifically identified human biological evidence or representative samples under this Code section. Typically, the Court orders that the Department store the evidence for a period of 15 years from the time of conviction. In order to provide clear guidance to the Department on when the evidence is to be returned to the investigating law enforcement agency, it is appropriate for the Court to provide some set period of years for the storage of the evidence if it varies from the 15 year time period in the statute.
Some considerations for long-term storage orders:
Does the order only contemplate the transfer of human biological evidence?
The statute contemplates only the preservation of human biological evidence. The Department does not have the storage capacity for all evidence in these cases.
Does the order permit the Department to take representative samples if the evidence “is of such a nature, size or quantity that storage, preservation or retention of all of the evidence is impractical?”
Virginia Code § 19.2-270.4:1(D) considers that some items of evidence (e.g., a car) may have human biological evidence but is too large for the Department to store. The Department should have the ability to have law enforcement submit representative samples in those instances (e.g., swabs from the door handle and steering wheel, the driver’s side airbag).
If the evidence is in the custody of the Circuit Court Clerk, does the order provide assistance to the Clerk from the investigating law enforcement agency?
Clerks typically appreciate assistance from law enforcement in the preservation, packaging and submission of evidence to the Department.
Does the order provide for the transfer of the evidence from the governmental entity having custody to DFS?
DFS does not pick up the evidence, and Clerks’ Offices are not equipped to transport evidence to the Department. The order should designate a law enforcement agency to properly package, transport, and submit the evidence to the Department.
What will DFS do with the evidence once the term of the order ends?
DFS will return the evidence to the investigating law enforcement agency once the term of the order ends.