Addressing the Lack of Statutory Remedy for Violations of Ohio Revised Code § 2933.82

by Joanna Swaiss, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

As DNA technology advances, preserving biological evidence has become increasingly important in the criminal justice system.¹ Proper preservation can help solve crimes and, more critically, exonerate individuals who were wrongfully convicted.² Recognizing this importance, the Ohio legislature enacted Ohio Revised Code (O.R.C.) § 2933.82, which requires “governmental evidence-retention entities” to preserve biological evidence for specified periods depending on the type of offense and status of the case.³

The 2015 amendments, however, added a subsection that significantly limits the statute’s practical effect.⁴ It provides that:

The failure of any law enforcement agency to comply with any time limit specified in this section shall not create…any basis or right to appeal, claim for or right to postconviction relief, or claim for or right to a new trial or any other claim or right to relief by any person.⁵

The statute also fails to impose penalties on law enforcement agencies or officials that violate its requirements.⁶ As a result, the statute creates a legal obligation without an enforcement mechanism or remedy. This lack of accountability renders O.R.C. § 2933.82 a dead-letter law—one that exists formally on the books, but has little to no practical effect.⁷

This article argues that the absence of meaningful enforcement mechanisms undermines the purpose of O.R.C. § 2933.82 and severely disadvantages wrongfully convicted individuals who stand to benefit from evidence preservation. Part II provides background, legislative history, and relevant case law. Part III analyzes the statute’s limitations and compares it to biological evidence retention statutes in other jurisdictions. Part IV proposes that O.R.C. § 2933.82 be amended to provide a basis for post-conviction relief in cases of intentional violations.

II. Background

A. The Role of DNA Evidence in Criminal Law

Over the past several decades, advances in forensic science—particularly DNA testing—have significantly transformed the criminal justice system.⁸ DNA evidence can identify individuals with a high degree of accuracy, and it has become one of the most powerful tools available to investigators and courts.⁹ As testing technology has improved, forensic laboratories have been able to analyze increasingly small or degraded biological samples, making DNA evidence available in cases where it previously could not have been used.¹⁰

The growth of forensic DNA testing has revealed the importance of preserving biological evidence collected during criminal investigations.¹¹ Evidence such as blood, urine, saliva, hair, and semen can often be retested years after a conviction using improved techniques that were unavailable at the time of trial.¹² Organizations like the Innocence Project have demonstrated why preservation matters.¹³ Many wrongful convictions have been overturned through post-conviction DNA testing precisely because biological evidence was retained long after the trial.¹⁴ In many of these cases, the availability of preserved biological evidence was essential to establishing innocence.¹⁵ These developments have led many states to enact statutes requiring government entities to preserve biological evidence so that it remains available for future testing.¹⁶

B. Ohio’s Biological Evidence Retention Statute

In response to the growing recognition of DNA’s role in both criminal investigations and wrongful-conviction litigation, the Ohio legislature enacted O.R.C. § 2933.82.¹⁷ The statute requires governmental evidence-retention entities to preserve biological evidence collected during criminal investigations for specified periods of time.¹⁸ The required retention period varies depending on the offense’s classification and the case’s status.¹⁹

The statute reflects the legislature’s recognition that biological evidence can be used not only to incriminate individuals, but also to exculpate them.²⁰ By requiring the preservation of such evidence, the law seeks to ensure that material capable of DNA testing remains available for future review, including in post-conviction proceedings.²¹ This requirement is particularly important in cases involving serious offenses, where individuals may remain incarcerated for years before improved testing methods become available.²²

C. Absence of a Statutory Remedy

Although O.R.C. § 2933.82 imposes clear obligations on governmental entities to preserve biological evidence, the statute provides no recourse for criminal defendants when those obligations are violated.²³ Subsection (E) explicitly states that a law enforcement agency’s failure to comply with the statute’s requirements does not create a basis for appeal, post-conviction relief, a new trial, or any other claim for relief.²⁴ In effect, the statute establishes a duty to preserve evidence while simultaneously stripping away legal consequences for failing to fulfill that duty. The available legislative history does not explain why the Ohio legislature omitted an enforcement mechanism from the statute. However, United States Supreme Court precedent may offer some insight into why such limitations on remedies exist.

D. Arizona v. Youngblood

In 1985, Larry Youngblood (Youngblood) was convicted of child molestation, sexual assault, and kidnapping.²⁵ Nine days after the crime, the victim identified Youngblood as the assailant from a photographic lineup.²⁶ However, the police failed to preserve semen samples collected from the victim’s body and clothing—evidence that could have potentially excluded and exonerated Youngblood.²⁷ The State did not rely on the samples in its case, and Youngblood’s primary defense was that the victim mistakenly identified him.²⁸ The Arizona Court of Appeals reversed the conviction, holding that the loss of evidence denied Youngblood due process.²⁹ The U.S. Supreme Court granted certiorari to determine whether the State’s failure to preserve potentially exculpatory evidence violated the Fourteenth Amendment’s Due Process Clause.³⁰

The Court held that while the Due Process Clause requires the preservation of evidence that might be useful to the defense, a criminal defendant must demonstrate that the police acted in bad faith for that failure to rise to the level of a constitutional violation.³¹ Negligent loss of evidence, without more, does not constitute a due process violation.³² The Court’s rationale for this standard rested on (1) the uncertainty of evidence that is only potentially exculpatory and (2) limiting the burden on police to preserve all evidence.³³ Requiring a showing of bad faith “limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it.”³⁴ The Court further noted that intentional destruction cases are those “in which the police themselves[,] by their conduct[,] indicate that the evidence could form a basis for exonerating the defendant.”³⁵

Applying this rationale to Youngblood’s case, the Court found that although the police were negligent in failing to preserve the semen samples and clothing, there was no indication of bad faith.³⁶ Therefore, the Court concluded that Youngblood could not prevail on constitutional grounds and reversed the Arizona Court of Appeals’ decision that overturned his conviction.³⁷ In 2000, at the request of Youngblood’s attorneys, police tested the degraded evidence using newer, more sophisticated technology.³⁸ The results exonerated Youngblood, and he was released from prison.³⁹ This landmark case, which clarified criminal defendants’ constitutional rights regarding evidence preservation, could inform statutory remedies.

III. Discussion

The absence of meaningful enforcement provisions raises serious concerns about the statute’s effectiveness. Without penalties or remedies for noncompliance, agencies that fail to preserve biological evidence face no consequences. At the same time, individuals seeking to challenge their convictions through newly available DNA testing may be unable to do so if the relevant evidence has been destroyed. The lack of a statutory remedy, therefore, risks undermining the statute’s central purpose—ensuring that biological evidence remains available for future testing that could confirm guilt or establish innocence. This section will discuss how O.R.C. § 2933.82 is currently a dead-letter law, compare it to other biological evidence retention statutes, and argue that it should provide an avenue for post-conviction relief.

A. The Dead Letter Law Problem

The term “dead letter law” describes statutes that are formally in effect but are rarely enforced, or lack meaningful consequences for violations.⁴⁰ This includes statutes that impose obligations without providing enforceable remedies or penalties for noncompliance.⁴¹ In such cases, the law exists on paper but fails to regulate effectively.⁴² When a statute lacks an enforcement mechanism, the practical incentive for compliance is significantly weakened.

This concern applies directly to O.R.C. § 2933.82. Although the statute imposes a duty on governmental evidence-retention entities to preserve biological evidence for specified periods, subsection (E) significantly limits the legal consequences of noncompliance.⁴³ The absence of a meaningful remedy affects the incentives facing law enforcement agencies responsible for storing biological evidence. Because the statute imposes a duty without attaching any consequences for violating it, agencies have little practical incentive to adhere to its requirements. While many agencies may still follow the law as a matter of professional practice or departmental policy, the absence of enforceable consequences reduces the statute’s capacity to ensure consistent compliance.⁴⁴

This enforcement gap has important implications for the statute’s underlying goals. Biological evidence preservation laws exist to ensure that material capable of DNA testing remains available for future investigation, including post-conviction review.⁴⁵ If evidence is destroyed or improperly retained, individuals seeking to challenge their convictions may lose access to the very evidence that could establish their innocence.⁴⁶ By eliminating remedies for violations, subsection (E) risks undermining the statute’s central objective—preserving biological evidence so that advances in forensic science can be used to either confirm guilt or reveal wrongful convictions. As a result, the statute functions less as a binding mandate and more as a directive, one whose effectiveness depends largely on voluntary compliance by law enforcement agencies.

B. Comparable Laws

Recognizing the need for a remedy when government actors fail to retain biological evidence in compliance with the law, Maryland’s comparable statute provides that:

(i) [i]f the State is unable to produce…[biological] evidence…the court shall hold a hearing to determine whether the failure to produce evidence was the result of intentional and willful destruction. (ii) If the court determines at a hearing…that the failure to produce evidence was the result of intentional and willful destruction, the court shall: 1. order a postconviction hearing to be conducted…and 2. at the postconviction hearing[,] infer that the results of the postconviction DNA testing would have been favorable to the petitioner.⁴⁷

In contrast, the federal biological evidence preservation statute does not permit such a violation to serve as the basis for a habeas corpus proceeding. Habeas corpus is a legal procedure that allows detained individuals to challenge the lawfulness of their imprisonment.⁴⁸ The federal statute does, however, provide the following:

(e) Regulations…the Attorney General shall promulgate regulations to implement and enforce this section, including appropriate disciplinary sanctions to ensure that employees comply with such regulations.

(f) Criminal Penalty.— Whoever knowingly and intentionally destroys, alters, or tampers with biological evidence that is required to be preserved under this section with the intent to prevent that evidence from being subjected to DNA testing or prevent the production or use of that evidence in an official proceeding, shall be fined under this title, imprisoned for not more than 5 years, or both.⁴⁹

Although the federal statute precludes habeas corpus relief, it still encourages compliance through disciplinary sanctions and criminal penalties for intentional violations.⁵⁰ The Federal Register indicates that Congress favored this enforcement model over post-conviction relief, though it offers little explanation for that choice.⁵¹ By comparison, O.R.C. § 2933.82 provides neither avenue, leaving the statute with no meaningful enforcement mechanism at all.

C. Solution

Ohio should amend O.R.C. § 2933.82 to explicitly provide a basis for post-conviction relief when biological evidence is intentionally destroyed. This reform aligns with the statute’s core purpose: ensuring that evidence capable of confirming guilt or innocence remains available for future testing. While the federal statute prioritizes enforcement through disciplinary and criminal penalties, Ohio could take a different approach, one that more closely mirrors Maryland’s statute by offering a direct legal remedy for affected individuals.⁵²

This distinction matters because disciplinary and criminal sanctions against law enforcement do nothing to address the harm suffered by the defendant. A wrongfully convicted individual facing continued incarceration and a stigmatizing criminal record without avenues for post-conviction relief is not made whole because an officer was disciplined or prosecuted.⁵³ Post-conviction relief, by contrast, directly addresses that harm by giving courts the authority to correct wrongful convictions. While a model statute could include both an avenue for post-conviction relief and penalties for law enforcement, a conservative legislature may be less likely to push back on a law-enforcement-friendly proposal.⁵⁴

Beyond addressing individual harm, post-conviction relief in cases of intentional destruction would create stronger compliance incentives for law enforcement agencies. When violations could result in retrials, vacated convictions, or other judicial remedies, agencies have a concrete reason to implement policies and procedures that prevent evidence mishandling.

IV. Conclusion

Given the high stakes involved—namely, the life and liberty of criminal defendants—a statutory remedy is essential to the interests of justice and due process.⁵⁵ Without enforceable consequences or any ability to challenge the destruction of evidence, O.R.C. § 2933.82 currently functions as a dead letter law—offering protection in theory, but not in practice. By providing post-conviction relief for intentional violations, Ohio would not only safeguard the rights of criminal defendants, but also reinforce public confidence in the integrity of its criminal justice system. Preserving biological evidence is more than just a procedural obligation; it is a matter of fairness, accuracy, and accountability. Ensuring that violations carry meaningful consequences upholds both the letter and the spirit of the law—protecting individuals from wrongful convictions and advancing the pursuit of justice in every case.

Cover Photo by Warren Umoh on Unsplash

Joanna Swaiss

References

1
See generally Innocence Project, DNA Exonerations in the United States (1989 – 2020), https://innocenceproject.org/dna-exonerations-in-the-united-states [https://perma.cc/N4VK-PXCZ] (last visited Mar. 7, 2026) (discussing the impact of DNA testing in the criminal justice system).
2
See generally id. (discussing the importance of DNA evidence in overturning wrongful convictions); see also generally Office of the Att’y Gen., Advancing Justice Through DNA Technology: Using DNA to Solve Crimes, U.S. Dep’t of Just., https://www.justice.gov/archives/ag/advancing-justice-through-dna-technology-using-dna-solve-crimes [https://perma.cc/K5S9-67RJ] (last updated Mar. 7, 2017) (explaining the importance of DNA evidence in solving crimes).
3
Ohio Rev. Code Ann. § 2933.82 (West 2023).
4
See id. § 2933.82 (West 2015).
5
Id. § 2933.82(e) (West 2023).
6
See id.
7
See Merriam-Webster Dictionary, Dead Letter, https://www.merriam-webster.com/dictionary/dead%20letter [https://perma.cc/SG28-XZ7U] (last visited Mar. 7, 2026) (defining “dead letter”).
8
See generally Office of the Att’y Gen., supra note 2.
9
See Tony Borg, The Role of DNA Analysis in Forensic Science, Alliant Univ., https://www.alliant.edu/blog/role-of-dna-analysis-in-forensic-science [https://perma.cc/T636-QD88] (last visited Mar. 7, 2026) (“DNA analysis has a high level of accuracy, or around 99%.”); see also generally Nathan James, Cong. Rsch. Serv., R41800, The Use of DNA by the Criminal Justice System and the Federal Role: Background, Current Law, and Grants (Apr. 18, 2022) (discussing use of DNA as a “powerful tool” for law enforcement).
10
See Nat’l Inst. of Just., 194197, Using DNA to Solve Cold Cases 5 (2002) (“[t]hroughout the Nation, criminal justice professionals are discovering that advancements in DNA technology are breathing new life into old, cold, or unsolved criminal cases. Evidence that was previously unsuitable for DNA testing because a biological sample was too small or degraded may now yield a DNA profile.”).
11
See Cristina Martin, Nonprofit Oversight Under Siege: DNA Storage Banks: The Importance of Preserving DNA Evidence to Allow for Transparency and the Preservation of Justice, 91 Chi.-Kent L. Rev. 1173, 1175 (2016) (“[p]reservation of evidence is critical, because DNA technology is rapidly advancing…”).
12
See id. at 1176 (listing examples of biological material), 1186 (“[r]etention of DNA samples is not only desirable to retest specimens in the future if better technology is developed, but it creates accountability within the forensic science community as well.”).
13
See Danielle Selby, DNA and Wrongful Conviction: Five Facts You Should Know, Innocence Project (Apr. 25, 2023), https://innocenceproject.org/news/dna-and-wrongful-conviction-five-facts-you-should-know [https://perma.cc/3Q3F-J3QH] (“[a]ccording to the National Registry of Exonerations, 614 wrongly convicted people have been exonerated based on DNA tests that demonstrated their innocence since 1989.”).
14
See id.
15
See id. (“the ability to perform DNA testing on evidence relies on evidence being preserved (requirements for how long evidence must be preserved varies) and findable in law enforcement facilities.”).
16
See Marjon Stephens, Preserving Innocence: Biological Evidence Preservation and Systematic Reform, 120 W. Va. L. Rev. Online 88 (May 4, 2018) https://wvlawreview.wvu.edu/west-virginia-law-review-online/2018/05/04/preserving-innocence-biological-evidence-preservation-and-systematic-reform [https://perma.cc/25R9-6TV5] (“[c]urrently, 43 states and the District of Columbia require the preservation of biological evidence.”).
17
Ohio Rev. Code Ann. § 2933.82.
18
See id.
19
See id.
20
See id. (discussing biological material that “reasonably may be used to incriminate or exculpate any person…”).
21
See id. (“A governmental evidence-retention entity that possesses biological evidence shall retain the biological evidence in the amount and manner sufficient to develop a DNA record from the biological material contained in or included on the evidence.”).
22
See DNA Evidence and Texas’ Criminal Justice System, Tex. House Rsch. Org. 4-5 (Nov. 10, 2000), https://hro.house.texas.gov/focus/DNA.pdf [https://perma.cc/7MKG-4URS] (discussing post-conviction DNA testing when necessary technology was not available at the time of the defendant’s trial).
23
Ohio Rev. Code Ann. § 2933.82(e).
24
Id.
25
See Ariz. v. Youngblood, 488 U.S. 51, 52 (1988) (listing convictions); see also Innocence Project, Larry Youngblood, https://innocenceproject.org/cases/larry-youngblood [https://perma.cc/H3NL-6LGM] (last visited Mar. 13, 2026) (indicating year of Youngblood’s convictions).
26
See Youngblood, 488 U.S. at 53.
27
See id. at 52.
28
See id.
29
See id. at 54.
30
See id. at 52. (“Certiorari simply defined is a ‘writ’ by which a higher court…reviews some lower court’s decision…”). Legal info. Inst., Certiorari, https://www.law.cornell.edu/wex/certiorari [https://perma.cc/5ZAG-PH6Z] (last visited Mar. 21, 2026) (defining “certiorari”).
31
See Youngblood, 488 U.S. at 58.
32
See id. at 57-58.
33
See id.
34
Id. at 58.
35
Id.
36
See id.
37
See id. at 58 (“there was no violation of the Due Process Clause.”), 59 (reversal).
38
See Innocence Project, supra note 25.
39
See id.
40
See Merriam, supra note 7 (defining “dead letter”).
41
See id. (defining “dead letter”).
42
See Dead Letter, USLegal https://legal-resources.uslegalforms.com/d/dead-letter [https://perma.cc/3DHJ-PRV4] (last visited Mar. 10, 2026) (“although the law exists, it…cannot be applied in practice.”).
43
See Ohio Rev. Code Ann. § 2933.82(e).
44
See, e.g., Youngblood 488 at 57-58 (discussing limitations on remedies to the state’s failure to preserve evidence, absent a showing of bad faith).
45
See Stephens, supra note 16.
46
See id. (“[t]he Innocence Project of the Benjamin Cardozo School of Law reported that 75% of its cases were closed because of lost or destroyed evidence.”).
47
Md. Code Ann., Crim. Proc. § 8-201(j)(3) (West 2024).
48
See 18 U.S.C. § 3600A(g) (2016).
49
Id. § 3600A(e)-(f).
50
See id. § 3600A(e)-(g).
51
See Preservation of Biological Evidence Under 18 U.S.C. 3600A, 70 Fed. Reg. 21,957 (Apr. 28, 2005) (to be codified at 28 C.F.R. pt. 28).
52
See 18 U.S.C. § 3600A(e)-(g); see also Md. Code Ann., Crim. Proc. § 8-201(j)(3).
53
See generally Cameron Kimble & Ames Grawer, Collateral Consequences and the Enduring Nature of Punishment, Brennan Ctr. (June 21, 2021), https://www.brennancenter.org/our-work/analysis-opinion/collateral-consequences-and-enduring-nature-punishment [https://perma.cc/3QH2-ZSNZ] (discussing incarceration and collateral consequences of a conviction).
54
See April J. Anderson et al., Cong. Rsch. Serv., R43904, Public Trust and Law Enforcement—A Discussion for Policymakers (2020) (“[c]onservatives are more likely than liberals and moderates to have confidence in the police.”); see also Trau, Morgan, How the 2024 Election impacts balance of power in Ohio Statehouse, Ohio Cap. J. (Nov. 6, 2024) https://ohiocapitaljournal.com/2024/11/06/how-the-2024-election-impacts-balance-of-power-in-ohio-statehouse [https://perma.cc/KW9X-CR5Z] (discussing a Republican supermajority in the Ohio legislature).
55
See U.S. Const. amend. V (discussing potential deprivation of life and liberty in a criminal case).