TITLE 17
CRIMINAL PROCEDURE
ARTICLE 3
DISPOSITION OF PROPERTY SEIZED
17-5-55. Designation of custodian for introduced evidence; evidence log; storage, maintenance, and disposal of evidence.
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In all criminal cases, the court shall designate either the clerk of court, the court reporter, or any other officer of the court to be the custodian of any property that is introduced into evidence during the pendency of the case. Property introduced into evidence shall be identified or tagged with an exhibit number. After verdict and judgment has been entered in any criminal case, the person who has custody of the physical evidence introduced in the case shall inventory the evidence and create an evidence log within 30 days of the entry of the judgment. Within 30 days following the creation of the evidence log, physical evidence shall be returned to the rightful owner of the property unless the physical evidence itself is necessary for the appeal of the case, for a new trial, or for purposes of complying with this Code section or Code Section 17-5-56. The evidence log shall contain the case number, style of the case, description of the item, exhibit number, the name of the person creating the evidence log, and the location where the physical evidence is stored. After the evidence log is completed, the judge shall designate the clerk of court, the prosecuting attorney, or the law enforcement agency involved in prosecuting the case to obtain and store the evidence, and a notation shall appear in the evidence log indicating the transfer of evidence. If evidence is transferred to any other party, the evidence log shall be annotated to show the identity of the person or entity receiving the evidence, the date of the transfer, and the location of the evidence. The signature of any person or entity to which physical evidence is transferred shall be captured through electronic means that will be linked to the evidence log or the use of a property transfer form that will be filed with the evidence log. When physical evidence, other than audio or video recordings, is transferred to any person or entity, a photograph or other visual image of the evidence shall be made and placed in the case file.
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Physical evidence classified as dangerous or contraband by state or federal law, including, but not limited to, items described by state or federal law as controlled substances, dangerous drugs, explosives, weapons, ammunition, biomedical waste, hazardous substances, or hazardous waste shall be properly secured in a manner authorized by state or federal law. This evidence may be transferred to a government agency authorized to store or dispose of the material.
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Documents, photographs, and similar evidence shall be maintained and disposed of in accordance with records retention schedules adopted in accordance with Article 5 of Chapter 18 of Title 50, known as the "Georgia Records Act." Other physical evidence that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime, shall be maintained in accordance with Code Section 17-5-56. A party to an extraordinary motion for new trial or a habeas corpus action in which DNA testing is sought that was filed prior to the expiration of the time prescribed for the preservation of evidence by this Code section may apply to the court in which the defendant was convicted for an order directing that the evidence be preserved beyond the time period prescribed by this Code section and until judgment in the action shall become final.
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Except as is otherwise provided in subsections (b) and (c) of this Code section or by law, following the expiration of the period of time set forth in subsections (b) and (c) of this Code section, physical evidence may be disposed of in accordance with the provisions of Article 5 of Chapter 12 of Title 44, known as the "Disposition of Unclaimed Property Act," or, in the case of property of historical or instructional value, as provided in Code Section 17-5-53.
(Code 1981, §17-5-55, enacted by Ga. L. 2003, p. 247, § 3; Ga. L. 2004, p. 575, § 2.)
Code Commission notes.
- Pursuant to Code Section 28-9-5, in 2003, in subsection (c), a comma was deleted following "Code section" in the third sentence; and, in subsection (d), "Title 44" was substituted for "Title 50" and a comma was added following "Property Act".
Law reviews.
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For note on the 2003 enactment of this Code section, see 20 Ga. St. U.L. Rev. 119 (2003).
JUDICIAL DECISIONS
Failure to comply with
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17-5-55. - No compliance with O.C.G.A.
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17-5-55 was indicated because neither the original nor a copy of a videotaped forensic interview of a child molestation victim was included in the record on appeal from the trial court, and the record did not reflect that the trial court designated a custodian of the evidence or that any evidence log was maintained; when it appears that photographs or audio or video recordings might be needed on appeal by a party, such party should move the trial court to allow duplicates to be admitted into the record in addition to the originals and be retained by the clerk of the court for inclusion in any appellate record, and the trial court should include in the court's order, instructions that the clerk of court include such copies in the appellate record transmitted to the appellate court, when the appealing party either requests their inclusion or requests that nothing be omitted from the record on appeal because such a practice would ensure the completeness of the appellate record without delay. Lynn v. State, 300 Ga. App. 170, 684 S.E.2d 325 (2009).
Cited in
State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015).
