[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR28.23]

[Page 459-460]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
                    CHAPTER I--DEPARTMENT OF JUSTICE
 
PART 28_DNA IDENTIFICATION SYSTEM--Table of Contents
 
              Subpart C_Preservation of Biological Evidence
 
Sec. 28.23  Evidence subject to the preservation requirement.

    (a) Biological evidence generally. The evidence preservation 
requirement of section 3600A applies to ``biological evidence,'' which 
is defined in section 3600A(b). The covered evidence is sexual assault 
forensic examination kits under section 3600A(b)(1) and semen, blood, 
saliva, hair, skin tissue, or other identified biological material under 
section 3600A(b)(2).
    (b) Biological evidence under section 3600A(b)(2). Biological 
evidence within the scope of section 3600A(b)(2) is identified 
biological material that may derive from a perpetrator of the offense, 
and hence might be capable of shedding light on the question of a 
defendant's guilt or innocence through DNA testing to determine whether 
the defendant is the source of the material. In greater detail, evidence 
within the scope of section 3600A(b)(2) encompasses the following:
    (1) Identified biological material. Beyond sexual assault forensic 
examination kits, which are specially referenced in section 3600A(b)(1), 
section 3600A requires preservation only of evidence that is detected 
and identified as semen, blood, saliva, hair, skin tissue, or some other 
type of biological material. Section 3600A's preservation requirement 
does not apply to an item of evidence merely because it is known on 
theoretical grounds that physical things that have been in proximity to 
human beings almost invariably contain unidentified and imperceptible 
amounts of their organic matter.
    (2) Material that may derive from a perpetrator of the crime. 
Biological evidence within the scope of section 3600A(b)(2) must 
constitute ``biological material.'' In the context of section 3600A, 
this term does not encompass all

[[Page 460]]

possible types of organic matter, but rather refers to organic matter 
that may derive from the body of a perpetrator of the crime, and hence 
might be capable of shedding light on a defendant's guilt or innocence 
by including or excluding the defendant as the source of its DNA.

    Example 1. In a murder case in which the victim struggled with the 
killer, scrapings of skin tissue or blood taken from under the victim's 
fingernails would constitute biological material in the sense of section 
3600A(b)(2), and would be subject to section 3600A's requirement to 
preserve biological evidence, assuming satisfaction of the statute's 
other conditions. Such material, which apparently derives from the 
perpetrator of the crime, could potentially shed light on guilt or 
innocence through DNA testing under 18 U.S.C. 3600 to determine whether 
a defendant was the source of this material.
    Example 2. Biological material in the sense of section 3600A(b)(2) 
would not include the body of a murder victim who was shot from a 
distance, the carcasses of cattle in a meat truck secured in an 
investigation of the truck's hijacking, a quantity of marijuana seized 
in a drug trafficking investigation, or articles made from wood or from 
wool or cotton fiber. While such items of evidence constitute organic 
matter in a broader sense, they are not biological material within the 
scope of section 3600A(b)(2), because they do not derive from the body 
of a perpetrator of the crime, and hence could not shed light on a 
defendant's guilt or innocence through DNA testing under 18 U.S.C. 3600 
to determine whether the defendant is the source of the evidence.