229.1 Custody of Evidence

Rule 14 of the General Rules of Practice for the Superior and District Courts (hereafter, “Rule 14”) sets out the clerk’s responsibility for trial evidence. Rule 14 has three main components: (1) it makes the clerk the official custodian of evidence; (2) it requires exhibits offered or admitted as evidence to be given to the clerk; and (3) it sets out a procedure for the return of evidence to the offering party at the conclusion of a case.

Once any item of evidence has been introduced, the clerk (not the court reporter) is the official custodian thereof and is responsible for its safekeeping and availability for use as needed at all adjourned sessions of the court and for appeal.

After being marked for identification, all exhibits offered or admitted in evidence in any cause shall be placed in the custody of the clerk, unless otherwise ordered by the court.

Whenever any models, diagrams, exhibits, or materials have been offered into evidence and received by the clerk, they shall be removed by the party offering them, except as otherwise directed by the court, within 30 days after final judgment in the trial court if no appeal is taken; if the case is appealed, within 60 days after certification of a final decision from the appellate division. At the time of removal a detailed receipt shall be given to the clerk and filed in the case file.

If the party offering an exhibit which has been placed in the custody of the clerk fails to remove such article as provided herein, the clerk shall write the attorney of record (or the party offering the evidence if he has no counsel) calling attention to the provisions of this rule. If the articles are not removed within 30 days after the mailing of such notice, they may be disposed of by the clerk.

See AOC-G-150 (Exhibit/Evidence Log, Receipt for Removal, Disposition).

Practice Pointer

Bringing evidence to court
Before the trial starts, the prosecutor should talk to the case officers and make sure there is absolutely no confusion about exactly who will be bringing all the evidence from storage to court, as well as where and how the evidence which has yet to be introduced will be stored during breaks and overnight recesses. Remember that the clerk does not become the custodian of the evidence until it is actually introduced at trial, so poor planning for transportation or storage may create a bothersome chain of custody issue.

Clerk as the Official Custodian

Once any item of evidence has been introduced (offered or admitted), the clerk of court is the official custodian of the evidence and is responsible for its safekeeping and availability for use at trial and until a case’s final resolution, meaning disposition at the trial division from which no appeal is taken, or final certification of an appeal from the appellate division.

Receipt of the Evidence

The particular procedure for marking exhibits will vary from district to district. Generally, exhibits can be marked by the court reporter, counsel for either side, or the courtroom clerk, unless the judge has a particular policy. After being marked for identification, all exhibits offered or admitted into evidence are to be placed in the custody of the clerk, unless otherwise ordered by the court. Be mindful of your local rules of practice, which may direct that items of evidence that are not admitted are returned to the offering party.

Clerk’s Documentation of Receipt of Biological Evidence

For biological evidence in criminal cases, G.S. 15A-268(a7) provides that, on a defendant’s written request, the “custodial agency” must prepare an inventory of biological evidence relevant to the defendant’s case that has been preserved pursuant to G.S. 15A-268. Use of AOC-G-150, which provides a pre-printed space for designating biological evidence, provides this inventory on request. See G.S. 15A-266.2(1e) (“custodial agency” means the governmental entity which is “in possession” of evidence collected as part of an investigation or prosecution, typically either the law enforcement agency or the clerk of court).

Clerk’s Storage of Exhibits Containing Biological Evidence

When a physical exhibit is offered at a criminal trial, the presiding judge must determine whether or not the exhibit constitutes “biological evidence,” and, if so, direct that the evidence be so designated in the court’s records. G.S. 15A-268(a3). Physical evidence that is “reasonably likely to contain any biological evidence” in a criminal proceeding must be “preserved in a manner reasonably calculated to prevent contamination or degradation of any biological evidence that might be present, subject to a continuous chain of custody, and securely retained with sufficient official documentation to locate the evidence.” G.S. 15A-268(a1).

Most exhibits containing dried biological evidence (e.g., clothing with dried blood stains) should not be stored in an airtight, plastic container such as a sealed plastic bag because condensation in the container may compromise the parties’ ability to perform tests on the evidence. If the offering party offers such evidence in an airtight, plastic container, the courtroom clerk should ask the court to instruct that the collecting agency provide a container that complies with the current guidelines of the State Bureau of Investigation (SBI) for the Exhibit’s preservation. See G.S. 15A-268(a2) (Crime Laboratory is required to publish minimum recommended guidelines for storing biological evidence, which are to be distributed to all law enforcement agencies and court clerks).

Clerk’s Storage of Evidence After Trial During Appellate Process

If the appeal period passes without notice of appeal, the clerk should follow the disposition procedure set out in Rule 14 of the General Rules of Practice for the Superior and District Courts. See Section C below for more information.

When notice of appeal is given, the clerk must maintain the evidence until after certification of a final decision from the appellate division. After such certification, the clerk should follow the disposition procedures of Rule 14. However, as noted below, disposal is not mandatory; for example, a clerk may want to maintain the evidence for a longer time period for capital cases when it is likely there will be further court proceedings. If an exhibit is transmitted to the appellate division as part of the record on appeal, it generally will be retained by the appellate division and not returned to the clerk, so the clerk will not be responsible for its final disposition or long-term retention.

If the clerk has insufficient space to store an item, or if any other problem arises regarding storing an item of evidence, the clerk may ask the judge for an order regarding its storage. The clerk should notify the parties of the clerk’s intention to seek such an order. If the clerk is already aware at the end of the trial that storing the item will pose a problem, the judge may order that the item be returned to a law enforcement agency or, depending on the item, returned to the offering party.

Return/Disposal of Evidence After Trial

Under Rule 14, the clerk is only the custodian of exhibits (evidence) until the proceeding reaches its final resolution.

For cases that are not appealed, the parties are to remove their exhibits within 30 days after final judgment in the trial court.
If an appeal is taken, the parties are to remove their exhibits within 60 days after certification of a final decision of the appellate division.
If a party fails to remove any of its exhibits within the times described above, the clerk initiates the procedures for disposition of the exhibits under Rule 14 or the applicable statutes for special categories of evidence. See AOC-G-151 (Notice Of Intent To Dispose Of Exhibits/Evidence).
If the offering party does not remove exhibits within the appropriate time period discussed above, the rule authorizes the clerk to dispose of evidence without obtaining an order from the court after proper notice. In practice, many clerks do not dispose of criminal evidence without an order signed by a judge. An available form to do so is AOC-G-152 (Order for Disposition of Physical Evidence (Other Than Deadly Weapons and Alcoholic Beverages)).
Disposal is not mandatory. If the clerk has a special reason to retain evidence indefinitely, the clerk may do so (for example, in capital cases, or where the clerk anticipates the defendant will file of a motion for appropriate relief). See, e.g., G.S. 15A-269 (“Request for post-conviction DNA testing”).
Rule 14 is a trial court rule, adopted pursuant to G.S. 7A-34. Therefore, if the rule is in conflict with another statute (for example, when a statute sets forth more rigorous requirements for disposal of evidence such as firearms or drugs, as discussed in the next entry, Custody of Evidence: Disposition/Return After Trial), the statute prevails over the rule to the extent that the two are in conflict. See G.S. 7A-34; State v. Bennett,308 N.C. 530 (1983) (“the Supreme Court can prescribe rules of practice and procedure for the trial courts that are supplementary to the acts of the General Assembly as long as the rules are not inconsistent with such acts”).

Recovering Costs for Animal Cruelty and Related Offenses

Animals are sometimes seized as evidence (or to remove them from an abusive environment), and if so they must be fed and cared for while the investigation and trial are ongoing. In some cases, G.S. 19A-70 allows animal shelters to recover “reasonable costs” related to food, shelter, and medical care of animals that are the subject to certain criminal prosecutions and civil cases. G.S. 19A-70 applies only if an animal shelter takes custody of an animal after: (1) the person is arrested for animal cruelty, abandoning an animal, animal fighting, or certain other cruelty-related crimes (see Article 47, G.S. Chapter 14); or (2) the person is the defendant in a civil animal cruelty action (see Article 1, G.S. Chapter 19A) brought by (a) a local government, (b) a county-approved animal cruelty investigator, (c) a local government official, or (d) an organization operating a local government shelter under contract.