Because SANEs have expertise in evidence collection from a person, many SANEs and SANE programs are assisting law enforcement in the collection of evidence from suspects. There are many considerations that a program should evaluate when determining their participation in this practice.
Challenges to this type of expansion—
Legal considerations: Unlike other forms of program expansion, the collection of evidence from a crime scene and from a suspect in a sexual assault case is a law enforcement investigative function. Following rules of evidence and preserving the suspect's constitutional rights against unlawful search and seizure are major considerations when collecting evidence. Evidence must be obtained legally and hold up in court under close scrutiny. SANEs who collect this type of evidence do so under the direction of law enforcement. They are acting as an agent of law enforcement and should communicate with law enforcement to ensure that all legal standards are met. While a SANE may be acting as an agent of law enforcement, he or she is still obligated to comply with all aspects of their Nurse Practice Act.
Under most circumstances, evidence from a suspect can be obtained legally through consent. Law enforcement can collect if probable cause exists, a judge has issued a court order or search warrant, or if evidence has been abandoned. Some states allow the collection of forensic evidence from a suspect under the exigency exception without any order. The SANE should communicate with their law enforcement partner to determine which method is being used.
If a search warrant or court order is obtained, the SANE should understand exactly the items/evidence to be collected from the suspect as outlined in the order. They should stay within those parameters when collecting. It is important for the nurse to understand that a search warrant orders the suspect to submit to evidence collection. It is not an order requiring the nurse to collect evidence. Even with a search warrant, a nurse may be required to get some form of consent before collecting from a suspect in order to not be in violation of their Nurse Practice Act. A few states specify when a nurse can collect without the consent of a suspect. SANE programs should have protocols in place that clearly state when and how suspect examinations will be performed (particularly evidence collection from a minor), and they should be reviewed and approved by hospital or agency legal counsel.
If consent is the legal method, prior to collection, the suspect should sign a law enforcement form allowing the SANE to complete this. At any time, a suspect may withdraw their consent, which would then require law enforcement to obtain some type of court order or a search warrant.
SANE safety: There should be no circumstance in which a SANE is alone with the suspect. If there are concerns that the SANE could be at risk of injury from the suspect during an examination, evidence collection should not be completed by the SANE. If a suspect refuses to have evidence collected, the SANE should not continue any processing. Law enforcement must determine how to continue with any collection process when a suspect is refusing to cooperate.
Collection costs: These types of collection processes fall outside the SANE's scope of victim sexual assault examinations. Payment for the victim examination is generally predetermined and a process is in place; however, existing laws and statutes may not cover the costs for suspect collection. If the SANE program is involved in suspect collections, a fee schedule and a payment process should be discussed with law enforcement or the prosecuting agency (see section 6.2).
When to do a suspect exam: Many jurisdictions have set policies on the when exams on suspects should be completed. As with any type of forensic evidence, examination times will vary depending on the individual circumstances of the crime. As a general starting point, many jurisdictions are aligning the suspect collection timeframes with the timeframes for a forensic exam on a victim.
Where to do a suspect exam: It is important to prevent any cross-contamination between evidence collection from a victim and evidence collection from a suspect. This may mean having the evidence from a suspect collected at a different location or using a different SANE to perform the collection. It is important to have a protocol that addresses issues of collection and prevention of cross-contamination. When a suspect is in custody, law enforcement generally has a secure location to complete this process.
Suspect collection kit: Creating a standardized collection kit for suspects is a good practice. This ensures consistency in collection and administering the process across multiple jurisdictions. SANEs should work with law enforcement to determine the types of collection equipment needed to identify, collect, package, and preserve all items obtained from the suspect.
Types of evidence collected: Based on the assault history and the parameters of any court order, there are many possibilities for collecting evidentiary samples from a suspect. They may include documenting and photographing injuries, swabbing various body locations, collecting hair, debris, and fibers.
Establishing a protocol for collecting evidence by the SANE is a necessary tool. In some circumstances, law enforcement may simply be seeking to obtain a DNA reference sample (generally called a buccal swab) from the suspect for comparison purposes. In situations when other evidence (finger swabs, penile swabs) is not going to be collected, law enforcement can collect this item without the necessity of involving a SANE.
Documentation: As important as the collection of evidence from a suspect is, it is equally important to ensure this process is properly documented. Chain of custody and evidentiary, as well as injury documentation can prove to be a critical component when cases enter the court system. As with victim examinations, a standard form should be in place to make certain that all exams are completed in a consistent manner.
SANEs should be in ongoing discussions with other disciplines (law enforcement, prosecution, crime lab) in order to provide a clear understanding within the multidisciplinary team of when, where, what, and how a SANE will be utilized in the event there is a need to collect evidence from a suspect.