Criminal Law/Storage of old case files
QUESTION: Jeffrey --
Hello there! I understand this is a general question and will vary depending on the part of the country. (If you know NYC specifically, great, but if not, OK.)
What happens to case files and evidence boxes in a criminal case *after* the trial and appeals are over? Are they disposed of after X number of years? Are they archived in a common warehouse?
If someone related to the case -- a child of a victim, for example, but who is now grown -- wanted to look at the case file again and/or see the evidence, are they allowed to? How would they go about doing this?
Thank you! I've done some internet searching but I'm not finding enough information for my needs.
I will do my best to answer your questions:
1. The rules are different for each jurisdiction. Generally, the guidelines for file retention are set forth in local guidelines. As a rule of thumb most ethics opinions establish the following (or close to) rules: With the consent of the client, a closed file may be destroyed at any time. Absent the client’s consent to disposal of a file, a closed file must be retained for a minimum of six (6) years after the conclusion of the representation. Six years is the recommended minimum with special attention given to the following circumstances: Estate matters – Retain original wills and other original documents with legal significance indefinitely. Incompetents – Retain files at least six years after the removal of incompetency. Minors – Retain files at least six years after the minor acquires status as a legal adult. Criminal matters – With consideration for the applicable statute of limitations for post-conviction motions and appeals. Continuing payments – Consider the applicable statute of limitations. Any special circumstance in which destruction of the file could potentially prejudice the client’s rights. In short, there is There is no general duty to preserve client files permanently (ABA Informal Opinion 1384), and once the applicable retention period has passed (or the client has
given consent), the file may be destroyed.
2. File management systems will be comprised of electronic or physical files or a combination of both. The current philosophy is to convert as many non legal documents to electronic format. Generally, the law firm’s document retention policy should address where closed paper files will be stored in the
office, how they will be secured to protect confidentiality, how long files will remain onsite, and when they will be transferred to offsite storage. When physical files are transferred offsite, a record
with a detailed description of the contents of each box should be created to allow for easier retrieval.
Offsite storage of paper documents can be extraordinarily expensive and will be an ongoing expense
for many years. Typically, there are two strategies for offsite paper documents: 1). Firms retrieve paper files that have been sent offsite and scan and destroy the files in accordance with their electronic data destruction policy. This can significantly reduce the expense of offsite storage. 2). Firms find that the cost of retrieving, scanning and destroying paper files is too great and
continue to store files until the destruction dates. Then, the storage facility will destroy the existing files, and offsite storage is no longer necessary. Regardless, the firm should set forth in it's SOP how it stores files and for how long.
3. Most State Rules of Professional Conduct require that, upon termination of representation, a lawyer must “take steps to the extent reasonably practicable to protect a client’s interest, such as . . . surrendering papers and property to which the client is entitled. . (or words indicating the same).” In addition, the lawyer may never retain papers to secure a fee. Generally, anything in the file that would be helpful to successor counsel should be turned over. This includes papers and other things delivered to the discharged lawyer by the client such as original instruments, correspondence, and canceled
checks. Copies of all correspondence received and generated by the withdrawing or discharged lawyer should be released as well as legal instruments, pleadings, and briefs submitted by either side or prepared and ready for submission. The lawyer’s personal notes and incomplete work product need not be
released. To comply with this obligation, a law firm’s file retention policy should address client file requests. Generally, the client’s file should be organized so that documentation or notes that belong
to the firm can be easily removed in the event that the file must be turned over immediately. A copy of the client file should be made prior to turning it over to the client. This copy is for the firm’s records. It may be needed later to defend against a grievance or malpractice claim. It could also be helpful in responding to follow-up questions or handling similar matters in the future. Original documents and unique items (photos and personal property) should be returned to the client. A receipt acknowledging that the file was returned to the client or transferred to a new attorney should be signed by the client and retained by the firm. We suggest using a form entitled “Acknowledgement of Receipt of File” and “Authorization for Transfer of Client File” or something similar.
4. If a child of the victim wished to see the case files a request would have to be submitted to the prosecuting agency or the defense attorney's office (to include the public defender). If the child of the victim was refused a motion can be filed with the court which, if successful, could compel the agency or firm to allow review of the files. The office or firm could have kept physical evidence and most likely the police department who investigated the case will likely have kept some or all of the physical evidence. This is not a guarantee though as again, these SOP's are regionally specific. A letter requesting permission to review the case file and any evidence would be the first step in assessing what needs to be done.
I hope this answer was helpful.
---------- FOLLOW-UP ----------
QUESTION: Thank you! This was extensive and helpful but I think I need to clarify. I was trying to get the angle from inside the prosecutor's office: What access would the child of someone who had been killed, say, in a robbery have to getting hold of the prosecutor's file on the case -- and what about the evidence box the police/prosecutors might have? How hard it is to get, and in general is it disposed of after a period of time?
Thank you again!
Sorry for delay. For access to the prosecutor's office you would have to petition them. The first communication can be by a mere letter asking to do so and stating the reasons why. The case file would have a record of the evidence that was collected and a record of chain of custody stating where the evidence is stored and what disposition it is in. For example, if the evidence was destroyed it would be marked on the chain of custody record. All or most of the physical evidence will likely be stored at the police department who investigated the case. Some cases, particularly if there was a disposition such as a successful arrest and prosecution might destroy the evidence after the statute of limitations for appeals has expired. It depends very heavily upon the jurisdiction. If your request for case review to include evidence is legitimate and the prosecutor's office will not allow it then you could file a motion with the court compelling the prosecutor or DA's office to do so. That could require the assistance of an attorney to help you out with. Again, I would start the process just by requesting the action with a simple letter. I hope this information helps.