The government has a duty to preserve certain types of evidence it collects during criminal

investigations and prosecutions. This duty exists in order to protect a defendants rights to
due process and a fair trial under the Sixth and 14th Amendments to the U.S. Constitution.
The duty relates to the requirement that the government disclose evidence it will use against
the defendant at trial, as well as any evidence that is favorable to the defendant. The duty to
preserve evidence begins once any state agency or actor has gathered and taken
possession of evidence as part of a criminal investigation.

Law enforcement doesnt need to preserve all evidence it collects. The duty to preserve
extends only to evidence that might be expected to play a significant role in the suspects
defense: material and exculpatory evidence. Material evidence is important evidence
thats directly relevant to an issue in the defendants case. Exculpatory evidence is evidence
favorable to the defendant in that it clears or tends to clear him of guilt.

Who Has to Preserve Evidence?

While the police typically collect most evidence used in a criminal case, they arent the only
government actors who have to preserve evidence. The duty also extends to:

Local, county, and state investigative agencies. These include not just detectives
and investigators, but also administrative, clerical, and forensic staff.

Prosecutors. The attorneys prosecuting the case have an obvious duty to preserve
evidence, as do people acting under prosecutorial authority (for example,
investigators or experts retained by the prosecutors office).

The Attorney General. In most states and in most cases, the duty to preserve
evidence remains even after a defendant has been convicted. Therefore, the duty
applies to a states Attorney Generals office (which typically handles appeals and
post-conviction matters).

Private people exempted

The duty to preserve evidence doesnt extend to private people or agencies unless they
have a formal relationship with a law enforcement agency. Thus, if a private DNA lab is hired
by the prosecutor to examine blood samples collected from a crime scene, that lab must
protect and preserve the evidence and the results of any testing it conducts on the
evidence.

Preservation of Evidence
In the event that drugs, weapons or articles are found and it is reasonable to suspect that those items may have been used in the
commission of a crime, including an escape, attempted escape, or security breach ,every effort must be made to protect the
evidence until an investigation by qualified personnel can be initiated.

On the discovery of any of the above, the officer making the find must comply, if possible, with the following-

a. do not touch the item;

b. advise the general manager/duty manager, relevant manager, security/intelligence officer, correctional supervisor or duty
officer, and
c. carry out any instructions provided.

If it is necessary to move or investigate the item, an officer must wear latex gloves to move the item. Place the item (except for
sharps) in a plastic bag or envelope and seal the bag or envelope. Any item that possesses features that would make storage in a
plastic bag or envelope undesirable or unsafe (eg. syringes) must be placed into a sharps container and labelled accordingly.

The bag, envelope or container must be clearly marked prior to placing the item within with-

a. the nature of contents;

b. the precise location that it was found in;
c. names of any person in the area;
d. names of any person witnessing the find; and
e. date and time of the find.
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8. Continuity of Possession
To establish proof of continuity of possession, officers handling evidence/exhibits or passing evidence from one to another, must
comply with the following-

a. All evidence must be clearly labelled and marked showing-

i. day, date and time;

ii. location;
iii. officer first handling evidence and signed;
iv. receiving officer handling and signed for; and
v. each subsequent receiving person must sign for the item.

b. The officer receiving the evidence must sign the handing over officer's official notebook, as having received the evidence
and must record the following-

i. contents as marked;
ii. day, date and time of receipt; and
iii. sign and print officer's name, rank and employment.

b. The same record must be made in the receiving officer's official notebook. It is imperative that the evidence must be
recorded in the evidence register and the person holding the evidence for a long period of time must secure the evidence
 in a restricted access area, in a secure cabinet or evidence safe. The safe must be such that it cannot be interfered with
by a third party and to which the person holding the evidence only has access. The continuity and secure storage of
evidence must be able to be proved in court.
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9. Handling of Specific Evidence
The task of identifying, recording, collecting and interpreting physical evidence from a crime scene must be performed by the
appropriate police personnel. Latex gloves must be worn at all times when handling exhibits to avoid contamination.

Only under exceptional circumstances, where preservation of a crime scene cannot be maintained, a supervisor must authorise the
collection of evidence that may be lost, contaminated or destroyed. All physical evidence must be photographed (several times) on
colour negative film stock or video recorded in situ prior to being collected, include a scale/ruler beside the evidence of interest.

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9.1 Drugs
An officer should minimise all handling of illicit substances and retain the original packaging.

On the discovery of-

a. liquids;
b. medicines;
c. powders;
d. pills;
e. solids; or
f. LSD, microdots or sheets of gelatine

the officer making the find must package the whole item (including the original packaging) into a clip seal plastic bag or a sealable
plastic container.

Any clothing found should be placed in a clean plastic bag or clean envelope. Any synthetic drug recipes should be placed in a
plastic document holder or envelope.

On the discovery of marijuana (cannabis sativa) the officer making the find must-

a. if it is growing, collect the whole plant including the roots and any seeds or seedlings and place it in a paper bag or paper
container (including original packaging); or
b. if the material is dry, place it in a clip seal plastic bag.