When Should We Destroy the Evidence?

By Emily Ruth.

After the dust settles in a criminal case, what happens to the evidence and illustrative materials each side relied on to make their case? In Arizona, the clerk of the court retains every piece of evidence, whether admitted or not, and each demonstrative aid. Once the case is no longer “subject to modification,” the clerk must dispose of the associated evidence. From 2022 to 2025, Arizona Rule of Criminal Procedure 28.1 included a detailed framework for determining when a case is no longer “subject to modification” based on its procedural posture. Under that version, a case was no longer “subject to modification” after one of six scenarios:

1. 1. Immediately after an acquittal;
   2. Sixty days after entry of judgment and sentence (unless the defendant appealed);
   3. Ninety days after an affirmation of conviction or denial of a post-trial motion (unless the defendant appealed to the United States Supreme Court);
   4. Twenty-five days after the United States Supreme Court denied review or affirmed the conviction;
   5. One year after the defendant exhausted all state remedies; or 
   6. One year after the defendant exhausted all federal remedies if the defendant filed a habeas corpus petition.¹

Applying this framework required the clerk to remain abreast of movement in the defendant’s case as appeals reset the clock and different final phases of appeal triggered different timeframes for destruction.

In August 2025, an emergency amendment eliminated that detailed framework. Now, a case ceases to be “subject to modification” one year after a defendant exhausts all state court remedies unless they file a habeas corpus petition within that time. On its face, the amended timeline promotes efficient administration because it applies consistently to all defendants’ situations. Unfortunately, the timeline’s simplicity is also its greatest weakness. 

The Rule Is Not an Administrative Panacea

Rule 28.1 was amended in response to the Advisory Committee on Evidence Retention’s Report and Recommendation. Early last year, the Committee presented their workgroups’ findings, which addressed ambiguities and opportunities for improvement in evidence retention in the Administrative Office of the Courts.² The Committee noted that “the provisions [of Rule 28.1] as written would not allow for automation. . . [and] there was not a clear understanding of what exhausting all state and federal remedies means.” Thus, the Committee’s proposed amendment, which was formally proposed by David K. Byers in July 2025, laid out a clear definition of when state and federal remedies were exhausted.

Although the proposed amendment clearly defined exhaustion of all state and federal remedies, it did so too hastily; the Committee mistook a feature for a bug. In reality, determining when state and federal remedies are exhausted was not clear to the Committee or the clerk because it is difficult, if not impossible, to know when those remedies are actually exhausted. Federal and state law both allow defendants to file collateral appeals based on changed factual and legal circumstances, regardless of the case’s timeline. Thus, the simple, automatable timeline of the amended rule is unmoored from reality and embedded with conflicting deadlines. 

Combined with the rule’s mandatory language, those conflicting deadlines create legal ambiguity the clerk is not prepared to resolve. The clerk, acting in good faith, may destroy records one year after the final disposition of a defendant’s direct appeal but before the same defendant files their first petition for post-conviction relief. Although that destruction complies with one definition of “no longer subject to modification,” it defies another. With automation, those ambiguities become more difficult to timely discover and correct.

On top of it all, defendants have the right to rely on a system designed to retain evidence to pursue collateral appeals. Defendants’ rights, conflicting deadlines, and the rule’s mandatory language put the clerk between a rock and a hard place; it can either defy the rules of the court or defy the common law, but either way, the clerk risks legal consequences. Ultimately, this change prioritizes convenience and automation, subjects the clerk to ambiguous legal liability, and inhibits defendants’ access to evidence.

The Rule Language Prejudices Defendants Pursuing Collateral Appeals

Although the brightline rule applies neatly to the direct appeals process, which allows defendants twenty days to appeal their conviction to the next highest court, it poses problems for defendants on collateral appeal. In Arizona, petitions for post-conviction relief operate on a much more fluid deadline. Only one of the eight bases for post-conviction relief requires defendants to file on a hard deadline; the other seven allow defendants to file “within a reasonable time after they discover their claims.” 

Under Rule 28.1’s current language, the clerk could destroy evidence related to a defendant’s case well before the defendant has an opportunity to discover a claim under the final seven bases for relief. As post-conviction DNA testing exemplifies, technological changes may exonerate a defendant years after conviction. But only if the clerk still has evidence to test. 

The rule’s language presents similar problems for defendants seeking writs of habeas corpus; federal law allows defendants to file habeas petitions more than one year after final adjudication on direct appeal. While a final adjudication triggers a one year filing period, three other circumstances restart the clock: removal of state-created impediments, a retroactive ruling from the United States Supreme Court pertinent to a defendant’s claim, and discovery of new evidence that could not have been found earlier with due diligence. As written, the rule could interfere with defendants’ right to bring a habeas corpus petition under those three circumstances.

Ideally, the clerk would preserve evidence throughout a defendant’s incarceration because discovering new evidence—or re-evaluating old evidence, particularly with DNA testing—and retroactive changes in the law can create colorable claims for defendants well after their direct appeals and initial post-conviction petitions.

Proposed Protections and Ongoing Conversations

Shortly after the emergency amendment took permanent effect, Attorney Katia Méhu filed a proposed rule change to revert the rule’s language to its previous detailed framework. She recognized an imminent risk for defendants whose cases had not been subject to modification in or before August 2024 under the new brightline rule. Ms. Méhu requested expedited review to prevent prejudicial destruction of the evidence associated with those defendants’ cases. Her proposed reversion would buy time for ongoing conversations about clearer guidelines, efficient administration, and automation without unreasonably limiting defendants’ access. Through continued conversation, the Court, clerk, and Committee can explore creative solutions to appropriately balance the interests of every party involved.

Currently, the public comment period for Ms. Méhu’s proposal extends through June 1, 2026. To participate in the conversation surrounding this and other proposed rule changes, visit rulesforum.azcourts.gov/.

1. Habeas corpus is Latin for “you should have the body.” The writ of habeas corpus is one of the most fundamental safeguards to democratic society because it offers relief to someone unlawfully imprisoned. When the writ is granted, whoever imprisoned the petitioner must bring them before the court and justify the person’s imprisonment. ↩

2.
The Advisory Committee on Evidence Retention was established in January 2024 to address the changing nature of evidence from primarily physical to a mix of physical and digital, and to evaluate whether any evidence disposal could be automated. One of the Committee’s directives is to create “clear and concise direction . . . for applying retention and disposition schedules.”
↩