OAR 137-140-0010: Policy and Purpose

(1) The integrity and significance of biological evidence in the detection, apprehension, and prosecution of criminal offenders, as well as the exoneration of persons wrongfully convicted of criminal offenses, is essential. The integrity, admissibility, and use in criminal cases is therefore contingent on the proper collection, preservation, retention, and cataloging of trace biological evidence. In addition, current DNA technology allows for very small amounts of biological evidence to be analyzed and tested for DNA and DNA profiling and inadvertent contamination of biological evidence is therefore possible if custodians who collect, retain, preserve, and catalogue biological evidence do not take safety and contamination prevention precautions. Accordingly, care must be taken to prevent contamination and loss of biological evidence. (2) Effective June 29, 2009, the Oregon legislature enacted Oregon Laws 2009, chapter 489 (Senate Bill 310) that required custodians to preserve biological evidence that is collected as part of a criminal investigation into a covered offense or that was in the possession of the custodian prior to any person being convicted of a covered offense that could reasonably be used to incriminate or exculpate any person for a covered offense. The legislature further required custodians to preserve biological evidence in amounts and manners sufficient to develop a DNA profile from such biological evidence. (3) Effective June 7, 2011, the Oregon legislature amended Senate Bill 310 (2009) by Oregon Laws 2011, chapter 275 (Senate Bill 731) and enacted retention periods, processes and procedures that custodians are required to follow for the preservation and disposition of biological evidence. Additionally, the legislature required the Oregon Attorney General to adopt administrative rules that establishes the standards for the proper collection, retention, preservation and cataloging of biological evidence applicable to criminal investigations into, and criminal prosecution for, covered offenses. The Oregon Attorney General is further required to adopt by administrative rule a standard form for use by custodians when providing written notice to district attorneys for early disposition of biological evidence for covered offenses. (4) It is the policy of the Oregon Attorney General that the best scientific methods should be used in the collection, retention, preservation, and cataloguing of trace biological evidence. However, when selecting detection, collection, preservation, retention, and cataloguing methods and biological evidence processing sequences, custodians should consider the circumstances of each case, the ambient conditions under which the evidence is detected, the discriminatory power of the different detection and collection techniques, and the need to preserve or collect other types of evidence. Custodian personnel responsible for the detection and collection of biological evidence should be aware that various types of evidence might be present during the processing of a crime scene and that evidence other than trace biological evidence may be more significant to a particular case and therefore should be given higher priority. Custodians should contact the Oregon State Police Forensic Services Division with any questions regarding best scientific practices for the collection, retention, preservation, and cataloguing of specific items of trace biological evidence not listed in these administrative rules. (5) These administrative rules provide best practice scientific guidelines, procedures and techniques for the collection, retention, preservation, and cataloguing of trace biological evidence from crimes scenes, individuals, and items to be submitted to the Oregon State Police Forensic Services Division for testing, analysis, or DNA profiling for covered offenses. Therefore, a custodian’s failure to follow a particular guideline or administrative rule should not be construed as rendering subject biological evidence inadmissible in any judicial or administrative proceeding. Instead, in the event of a custodian’s failure to follow a particular guideline or administrative rule, it remains within the judgment of a court of competent jurisdiction to determine the relevance, admissibility and weight to be given for any biological evidence.