CRIMINAL JUSTICE: DNA Evidence Retention (SB 731) (2011)

This session, because of the evenly divided House, it was easier to stop than to pass a bill. The ACLU nevertheless spearheaded the passage of SB 731, culminating a ten-year effort to bring added protection to the criminal justice system regarding the preservation and use of evidence containing biological material (DNA) to prove innocence.

In light of the increasing use of DNA technology for purposes of criminal investigation, prosecution and exoneration, SB 731 is an important step to provide necessary safeguards in the criminal justice system. It builds on the 2001 Oregon Post-Conviction Motion for DNA Testing Law, Oregon’s DNA Innocence law. That law allows a defendant to request testing of biological evidence from the original criminal investigation even years after conviction.

While the original 2001 DNA Innocence law expired after a few years, in subsequent legislative sessions the ACLU successfully worked to expand its scope and make it permanent in Oregon statutes. At the same time, we began asking what the policies and practices were around the state to retain this evidence over the years, especially after a defendant has exhausted post-conviction relief. Without proper retention of biological evidence, a defendant can never use the Oregon Innocence law.

Although we asked various stakeholders over the years how evidence was retained after a conviction, we were never able to get a clear answer. As a result, at the ACLU of Oregon’s behest, in 2009 legislation was introduced to set forth a process for retaining biological evidence. While we were only successful in passing a temporary fix in 2009, Sen. Floyd Prozanski (D-Eugene) agreed to convene a workgroup of all the stakeholders during the interim to return with a new bill in the 2011 session. The result of that work was the introduction of SB 731 this session.

SB 731 establishes uniform procedures for the retention of biological evidence for the most serious crimes (murders and rapes) for a specific amount of time, in most cases 60 years. The Oregon Attorney General, in consultation with the Department of State Police and property clerk custodians, must adopt rules governing the proper collection, retention, preservation and cataloging of biological evidence. By leaving those details to rulemaking it allows for the necessary flexibility to take into account the changes in retention practices, many of which are making it easier and less costly to preserve this evidence for decades.

SB 731, consistent with other laws across the country, does not require the custodian to preserve evidence that by its physical nature makes retention impractical. In those cases, the custodian must remove and preserve sufficient quantities to permit future DNA testing. Similar to other states, the Oregon law allows for the property custodian to request early destruction. SB 731 establishes important safeguards before this can happen. It requires the custodian to obtain permission from the local district attorney. The district attorney may deny the request in which case the evidence must be retained. If the district attorney wants to proceed with early destruction, notice must be given to the defendant, who then may object and seek judicial review.

As the lead proponent, the ACLU moved the bill forward through the legislative process. SB 731 was heard first in the Senate Judiciary Committee and then the House Judiciary Committee. In addition to our testimony, the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association also testified in support and signed our floor statement, which was given to every member prior to the vote. SB 731 passed both the Senate and House without any opposition. After ten years, we are pleased to have made these important changes to Oregon’s criminal justice system. The Governor signed SB 731 into law on June 7 and it became effective immediately.

WIN: PASSED INTO LAW
Senate: 29-0
House: 60-0
Scorecard Vote: Senate & House