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EVAWI > Resources > Best Practices > FAQs > Evidence Retention
Q What do we do with the evidence/kit from a victim who is not (yet) participating in the investigation?
Q How long should we store evidence/kits when the victim is not (yet) participating in the investigation? What do other jurisdictions do?
A What do we do with the evidence/kit from a victim who is not (yet) participating in the investigation?

Many communities have established protocols for storing evidence from a medical forensic exam with a victim who has not yet decided to participate in the criminal justice process. In general, our recommendation for best practice is to store such evidence in a law enforcement facility. There are a variety of reasons for this, which we describe in detail in two articles described on the EVAWI website: one in Police Chief magazine and another in the Journal of Forensic Nursing. However, some communities have also established protocols for storing evidence in the exam facility (or other health care facility) for some limited period of time. Given the many complexities involved, any community protocol should be clearly spelled out in a written document created by the multidisciplinary professionals involved in responding to sexual assault.

To support work in this area, EVAWI created model policy materials for law enforcement agencies on Evidence Retention and Disposition and/or Removal. The materials include sample language to use when developing an agency policy, as well as instructional commentary and template materials. It can therefore be used as an educational tool as well as a resource to assist in the development of policies, protocols, and training materials.

These issues are also addressed in detail in the OnLine Training Institute module entitled, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

A How long should we store evidence/kits when the victim is not (yet) participating in the investigation? What do other jurisdictions do?

VAWA legislation does not require that evidence be held for any specific period of time in these situations, so the duration varies across jurisdictions and there is no single place where this information is tracked or archived. However, it would defeat the purpose of the forensic compliance provisions if the evidence was not held long enough to give victims time to make a decision regarding criminal justice participation. It is therefore best practice to store evidence for as long as possible, up to the statute of limitations or even indefinitely. A common sense recommendation that we often make to law enforcement agencies is to store the evidence for at least two years if possible. The following list provides examples of communities who have developed protocols to establish new standards for evidence retention.

  • The Cambria County Sexual Assault Protocol offers a comprehensive, well-designed procedure for anonymous reporting and evidence storage and retention.
  • The New Jersey Standards for Providing Services to Victims of Sexual Assault published a new Directive in July 2014, revised the standards in evidence retention for cases where the victim has not yet decided to report to law enforcement from 90 days to 5 years.

Some jurisdictions are pushing the bounds of evidence storage even longer, for the statute of limitations and beyond. This is particularly true in jurisdictions that have extended or eliminated the statute of limitations for sexual assault, either as a matter of law or by using the practice of issuing a “John Doe” warrant with a DNA profile rather than a name to identify the suspect. Of course, it is best if the period of time for evidence storage is stated in a way that is clear and consistent for victims. Otherwise, there can be concerns related to consistency, selectivity, and a lack of fairness.

For more detailed information on this topic, please see the model policy materials for law enforcement agencies on Evidence Retention and Disposition and/or Removal.

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