I. Background: Exhibits received into evidence during a court proceeding becomes the responsibility of the Clerk of the Circuit Court. This exclusive control also carries with it the responsibility of maintaining a chain of custody, storage and ultimately the disposition or destruction of evidence pursuant to the Florida Statutes and Rules of Judicial Administration. II. III. Recommendations: The Best Practices Committee appointed by the President of the Florida Court Clerks and Comptrollers recommends that Evidence Storage and Disposition/Destruction procedures be developed to ensure the most effective procedures will be implemented by the various Clerks of Court in compliance with the legal requirements set out in the Florida Statutes. The Best Practices Committee urges the 67 Clerks of the State of Florida to consider implementing the following best practices. Evidence Storage: Objectives: -Maintain the integrity of evidence; -Ensure its safe keeping; -Maintain a chain of custody; and -Ensure safety and security. a. Evidence rooms should contain a vault for an additional layer of security. b. Evidence rooms should be climate controlled and equipped with a fire suppression system. c. A numbering system for shelves, boxes and storage areas should be developed for easy access and identification. d. When evidence is received for storage, it should be maintained under the exclusive control of authorized employees. e. There should be dual verification of all items of evidence received for storage in order to maintain an accurate chain of custody. This should include verification of all evidence stickers or tags against the evidence sheet, along with verification of weights and counts with regard to drug and money evidence. f. All items of evidence should be entered into an evidence tracking system upon receipt reflecting identifying information along with the location in which the item will be stored. g. All evidence should be maintained in the original packaging and stored in a consistent manner taking safety, security, and ease of identification into consideration. BP Evidence Storage and Destruction (Rev. 12/23/14) Page 1 of 6
h. Special handling and storage procedures should be followed for sensitive items such as drugs, firearms, and currency. It is recommended that they be stored separately from general evidence and in a vault with enhanced security. Two staff members should be available to handle sensitive evidence. Organic drugs should be sealed in bags to reduce the chance of mold. If possible, drugs should be weighed with their packaging on State-certified scales when first received into evidence and then, again, when placed in storage. All firearms should be sealed in either a gun safe or handgun or rifle box. The make, model, and serial of the firearm should be noted. All currency should be sealed in clear plastic bags and counted when first received into evidence and then, again, when placed in storage. i. Photographs, videos or audio recordings depicting or recording the killing of a person are typically confidential pursuant to Fla. Stat. 406.136, but for a few exceptions set forth therein. However, a criminal or administrative proceeding is exempt from that section. A court, upon good cause shown, may nonetheless restrict or otherwise control the disclosure of a killing, crime scene, or similar photograph, video or audio recording. j. Biohazards should be stored on the lowest level shelving and separated from all other evidence. Biohazards should be maintained in boxes with stickers indicating such on the outside of the box. A procedure for the proper handling of biohazards should be in place to prevent the transmission of contaminants and ensure safety. k. Evidence in storage should be inventoried and/or audited based on the county s inventory/audit schedule. Monthly or bi-monthly reviews/inventories are also recommended. While each clerk is encouraged to develop their own specific inventory and audit procedures, inventories and audits, however conducted, should ensure that evidence is properly accounted for, identified, recorded, stored, handled, and disposed/destroyed in accordance with applicable statutes, rules and procedures. Inventories and audits also should help minimize mistakes and evaluate staff accuracy. It is recommended that inventories and audits be done by someone other than the deputy clerks who regularly process/handle the evidence. l. A procedure for the return of evidence should be in place. Title to unclaimed evidence seized pursuant to a lawful investigation vests permanently in the pertinent law enforcement agency 60 days after the conclusion of the proceeding, pursuant to Fla. Stat. 705.105(1). m. A record should be made and maintained for all evidence passing out of the clerk s custody and control. It is recommended that the record include: a detailed description of the evidence; the reason for the change in custody; the name and contact information for the party receiving the evidence; the name of the employee releasing the evidence; the date and time the evidence is released; and an acknowledgement by the receiver of his/her/its responsibility for the evidence. A BP Evidence Storage and Destruction (Rev. 12/23/14) Page 2 of 6
sample change of custody form is attached as Appendix A. 1 IV. Evidence Disposition/Destruction: Objectives: -Ensure evidence has met retention; -Ensure timely and lawful disposition/destruction of evidence; -Maintain a record of disposition/destruction; and -Ensure safety and security. a. Disposition/Destruction of Civil Evidence: 1. Civil evidence disposition/destruction is to be done in accordance with Fla. Stat. 28.213 and Fla. R. Jud. Admin. 2.430(f)(2). While rule 2.430(f)(2) permits the clerk to dispose of or destroy civil exhibits 90 days after a judgment has become final, section 28.213 provides that a clerk may dispose of items of physical evidence which have been held as exhibits in excess of three (3) years in cases in which no appeal, or collateral attack, is pending or can be made. 2. Once the evidence s eligibility for disposition or destruction has been determined, a notice of intent to dispose of or destroy exhibits/evidence should be prepared and provided to the parties and/or their attorneys of record. It should provide no less than 30 days notice of the clerk s intent. (A sample notice is attached as Appendix Item B.) Exhibits must be delivered to any party or attorney of record calling for them during the 30-day time period. If there are competing claims for the evidence, it is recommended that direction be sought from the court. 3. If no one calls for the evidence during the 30-day notice period, the evidence should be disposed of or destroyed accordingly when the notice period expires. b. Disposition/Destruction of Criminal Evidence: 1. Criminal evidence disposition/destruction is to be done in accordance with Fla. Stat. 28.213 and Fla. R. Jud. Admin. 2.430(f)(1). Pursuant to section 28.213 and rule 2.430(f)(1), a clerk may dispose of items of physical evidence which have been held as exhibits in excess of three (3) years in cases in which no appeal, or collateral attack, is pending or can be made. Any questions about the practical application of the statute and rule, and any questions about whether an appeal or collateral attack still is pending or can be made, should be asked of and answered by legal counsel and/or appropriate supervisory personnel. Also, if the evidence relates to a 1 Regarding this sample form and all others included in the attached appendix, clerks should feel free to develop and use their own particularized forms. BP Evidence Storage and Destruction (Rev. 12/23/14) Page 3 of 6
capital offense (life/death sentence), the evidence must be retained for the life of the defendant. 2. Once the evidence s eligibility for disposition or destruction has been determined, a notice of intent to dispose of or destroy exhibits/evidence should be prepared and provided the state attorney s office, seizing agency, defense counsel, and, to the extent applicable, victim(s). It should provide no less than 30 days notice of the clerk s intent. (A sample notice is attached as Appendix Item B.) 3. When approval is received from the noticed agencies and/or the notice period has expired without objection the Clerk can proceed to dispose of the evidence, no petition or order is required. Some clerks offices, as added protection may file a petition to dispose of, destroy or transfer the exhibits/evidence, and a proposed order authorizing the disposal/destruction/transfer of the exhibits/evidence, for submission to either the administrative judge or presiding judge in the case. (A sample petition/order to dispose of unclaimed exhibits/evidence is attached as Appendix Item C; a sample petition/order to destroy contraband/drug evidence is attached as Appendix Item D; and a sample petition to transfer evidence (for firearms/weapons/obscene materials) is attached as Appendix Item E.) 4. If a petition is filed, then the clerk must wait for entry of an order authorizing the disposal, destruction, or transfer of exhibits/evidence, and either the clerk or the judge will need to furnish copies of the order to the state attorney s office, the law enforcement agency that seized the evidence, and the defendant or defense counsel. 5. Once either the approval is received or an order is entered, there should be dual verification of all items of evidence pulled for disposition or destruction against the list previously approved by the judge. 6. DNA (deoxyribonucleic acid) evidence should be retained and destroyed along the guidelines set forth by Fla. Stat. 925.11. 7. For criminal convictions involving firearms, weapons, obscene materials, etc., the sheriff s department should be contacted to arrange for the transfer of such items into its custody, in accordance with Fla. Stat. 790.08(2). If the sheriff s department is unable to send someone to pick-up the evidence, arrangements should be made to have a deputy sheriff escort clerk staff to the sheriff s department to arrange for a transfer of the evidence to that facility. A representative of the sheriff s department and two (2) clerk staff members should sign a transfer form. 8. Weapons, electric weapons or devices, or arms must be returned to any person acquitted of offenses involving the use of such weapons, electric weapons or devices, or arms within 60 days from and after the acquittal or dismissal of charges, pursuant to Fla. Stat. 790.08(3). If such a defendant fails to call for or BP Evidence Storage and Destruction (Rev. 12/23/14) Page 4 of 6
receive the weapons, electric weapons or devices, or arms within 60 days after acquittal or dismissal of the charges, they must be delivered to the sheriff to be held by the sheriff. 9. Before any firearm is returned to an individual, a motion should be filed seeking court approval to return the firearm to the individual and an order should be entered authorizing the return. It also is recommended that the Florida Comprehensive Case Information System (CCIS) be checked to see if there is anything of record that would preclude the transfer of the firearm back to the individual under the Gun Control Act (18 U.S.C. 922(d)). 10. The local refuse company and sheriff s department should be contacted and arrangements made for transporting and incinerating narcotics and medication. A member of the clerk s management staff, along with local law enforcement, should escort two (2) clerk staff members to the local refuse company to witness incineration. A certificate of compliance should be signed by all present, including the incinerator s facility supervisor. 11. Car batteries, batteries, noxious/flammable materials, etc.: The local fire department or appropriate agency should be contacted to arrange for transfer of such materials to the fire department. A representative of the fire department or appropriate agency and two (2) clerk staff members should sign a transfer form. 12. Arrangements for the disposal of items marked with biohazard stickers will be made with the local fire department for destruction with their biohazard materials. If this option is not available, a third party vendor who specializes in biohazard disposal should be contacted. There may be a fee associated with this service. 13. Items admitted into evidence for cases in violation of gambling laws pursuant to Chapter 849 of the Florida Statutes are to be destroyed pursuant to Fla. Stat. 28.213, with the exception of machines, apparatuses, or devices. See 849.37(4) requiring the sheriff to hold such property seized pending its disposal by the court. A court order shall be issued directing the sheriff to destroy the machines, apparatuses, or devices (with the exception of the money inside those items). The sheriff shall destroy them in the presence of the clerk. The clerk may assign a deputy clerk to witness the destruction. c. Sale of Evidence Past Retention: Pursuant to Fla. Stat. 28.213, the clerk retains the right to sell evidence possessing monetary value after appropriate retention periods have elapsed. In the event of a public sale, revenue from said sale shall be deposited into the clerk s general revenue fund. (A sample petition to sell unclaimed evidence is attached as Appendix Item F.) BP Evidence Storage and Destruction (Rev. 12/23/14) Page 5 of 6
APPENDIX A. Evidence Change of Custody Form B. Notice of Intent to Dispose of or Destroy Exhibits/Evidence C. Petition to Dispose of Unclaimed Evidence D. Petition to Dispose of Evidence (Contraband/Drugs) E. Petition to Transfer Evidence (Firearms/Weapons/Obscene Materials) F. Petition to Sell Unclaimed Evidence (Auction) BP Evidence Storage and Destruction (Rev. 12/23/14) Page 6 of 6