• Delaware is one of the few states without a formal law mandating the preservation of evidence like blood, semen or hair.
• Senate Bill 214 would require evidence to be kept as long as a crime is unsolved or a person remains in custody.
• Two other related bills would modernize post-conviction DNA testing laws and allow challenges to convictions based on discredited forensic science.

Television crime dramas have trained audiences to believe DNA evidence is always collected, stored and available to be tested years later. In Delaware, that assumption is often wrong. A new legislative package would overhaul how the state preserves biological evidence, a change advocates say could determine whether wrongly convicted people ever get a real chance to prove it.

According to data from the University of Michigan Law School, Delaware has recorded just five known exonerations. That figure stands in sharp contrast to nearly 4,000 exonerations nationwide since 1989. Lawmakers and advocates say the disparity is evidence of a criminal justice system that makes it difficult to prove innocence after a conviction becomes final.

Efforts to address that concern center on Senate Bill 214, introduced by Sen. Kyra Hoffner. The bill would, for the first time, require the state to preserve biological evidence connected to criminal cases. The proposal is supported by Innocence Project Delaware, which has received nearly 200 requests for post-conviction assistance since opening in 2020 from people who say they were wrongly convicted.

Dan Signs, a staff attorney with Innocence Project Delaware, said Delaware is one of a small handful of states without a formal statute that sets clear standards for how long biological evidence must be preserved. As a result, there is no uniform system for maintaining blood, semen, hair or other material that could later be tested using DNA technology unavailable at the time of trial.

By failing to keep pace with national standards, Delaware leaves people with credible innocence claims unable to access evidence that could vindicate them.

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What’s in Senate Bill 214?

If passed, SB 214 would mandate the preservation of all biological evidence in the state’s custody that is connected to a criminal investigation or prosecution. Evidence would have to be retained for as long as a crime remains unsolved or for as long as a convicted person remains in custody, regardless of whether the conviction resulted from a trial or a guilty plea.

The bill also spells out the when biological evidence may be destroyed. Under limited and clearly defined circumstances, destruction would be allowed only if all five of the following conditions are met:

• More than five years have passed since the conviction became final and all appeals are exhausted.
• The evidence is not tied to a Class A through Class E felony.
• No other state or federal law requires the evidence to be preserved.
• The state sends certified written notice of its intent to destroy the evidence to specified parties, including anyone still incarcerated because of that conviction.
• No person who has received such notice files a motion for DNA testing or a written request to retain the evidence within 180 days.