Code of Virginia

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Code of Virginia
Title 19.2. Criminal Procedure
Chapter 16. Evidence and Witnesses

§ 19.2-270.4. When donation, destruction, or return of exhibits received in evidence authorized.

A. Except as provided in § 19.2-270.4:1 and unless objection with sufficient cause is made, the trial court in any criminal case may order the donation or destruction of any or all exhibits received in evidence during the course of the trial (i) in any misdemeanor case, at any time after the expiration of the time for filing an appeal from the final judgment of the court if no appeal is taken or if an appeal is taken, at any time after exhaustion of all appellate remedies and (ii) in any felony case, upon notice in the sentencing order or otherwise to the attorney for the Commonwealth, the defendant at his last known address, and attorney of record for the defendant in the case, after more than one year has expired from exhaustion of all appellate remedies, or, if no appeal is taken, after more than one year from the time for seeking appellate remedies has expired; and in the event the defendant is found not guilty by a court of law, the court may, upon entry of the final order, order the destruction, donation, or return of the exhibits; provided, however, if a petition for writ of habeas corpus is filed within such one-year period, then such order shall not be entered until exhaustion of such habeas corpus proceedings. Notwithstanding the foregoing, in all cases concluded prior to July 1, 2005, the notice requirement in this section shall not apply. The order of donation or destruction may require that photographs be made of all exhibits ordered to be donated or destroyed and that such photographs be appropriately labeled for future identification. In addition, the order shall state the nature of the exhibit subject to donation or destruction, identify the case in which such exhibit was received and from whom such exhibit was received, if known, and the manner by which the exhibit is to be destroyed or to whom donated. However, any money introduced into evidence, unless it is stolen from a third party, shall be subject to forfeiture by law-enforcement officials as otherwise provided by law, and if no forfeiture action is taken or if funds remain after any such forfeiture, the clerk shall escheat such funds as otherwise provided by law. No notice to the defendant shall be required in the case of exhibits the disposal or destruction of which is controlled by § 19.2-386.23 or 19.2-386.24, in any case in which such exhibits may be seized and forfeited to the Commonwealth under Chapter 22.1 (§ 19.2-386.1 et seq.) or Chapter 22.2 (§ 19.2-386.15 et seq.), or any other forfeiture provisions, or in any case where such exhibits are deemed contraband.

B. Except as provided in § 19.2-270.4:1, a circuit court for good cause shown, on notice to the attorney for the Commonwealth and any attorney for a defendant in the case, may order the return of any or all exhibits to the owners thereof, notwithstanding the pendency of any appeal or petition for a writ of habeas corpus. The order may be upon such conditions as the court deems appropriate for future identification and inclusion in the record of a case subject to retrial. In addition, the owner shall acknowledge in a sworn affidavit to be filed with the record of the case, that he has retaken possession of such exhibit or exhibits.

C. Any photographs taken pursuant to an order of donation or destruction or an order returning exhibits to the owners shall be retained with the record in the case and, if necessary, shall be admissible in any subsequent trial of the same cause, subject to all other rules of evidence.

D. Upon petition of any organization which is exempt from taxation under § 501(c) (3) of the Internal Revenue Code, the court in its sound discretion may order the donation of an exhibit to such charitable organization.

1984, c. 621; 1989, c. 481; 1994, c. 536; 2001, cc. 873, 874, 875; 2008, c. 805; 2010, cc. 352, 366, 454.

The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.