The rules for preservation of biological evidence are totally haphazard across the country. There should be a general requirement to preserve biological evidence and an opportunity for law enforcement, upon notice to an inmate, to move for destruction of the evidence in an orderly way. A general preservation rule is preferable to one that requires an inmate to file a motion for DNA testing to trigger the state s obligation to preserve evidence. That latter approach might encourage the wholesale and precipitous destruction of biological evidence. In Harris County Texas, shortly after Kevin Byrd, cleared by DNA testing, was pardoned by the governor, the clerk ordered the destruction of fifty rape kits.
Preservation is neither burdensome nor unduly expensive.
In Virginia, where the law would permit destruction of samples soon after conviction, local courthouses routinely save samples for decades in a comparatively traceable fashion. The suggestion that expensive freezer equipment would have to be built with high energy costs is mistaken. As long as the evidence is stored in a dark dry room, air conditioned in the summer, the evidence will remain robust for years. This would not only preserve the rights of inmates to produce proof of their innocence through DNA testing, but help law enforcement re-test old cases to catch the real perpetrators. In the vast majority of post-conviction DNA exonerations some form of DNA testing was, in theory, available to the defendant at the time of trial.