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Clinical Nursing Case Studies

Sealed "Rape Kit" Reopened By Nurse. Evidence Inadmissible?
State v. Southern, 980 P.2d 3 - MT (1999)

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Summary: Documentation of observations and findings are basic to nursing practice. Our practice is governed by standards of practice and "protocols" to be followed. In this case, a nurse admitting a rape victim collected and placed in a "rape kit" DNA samples, evidence to be submitted for laboratory analysis. The evidence submission protocol would inadvertently be broken by the nurse. The defense for the rapist would argue this breach made the evidence inadmissible.

The nurse was caring for a sexual assault (rape) victim on the night in question. Herpatientwas one of a number of patients in for the same reason.

Rape is a "reportable" crime in most states. This means when a healthcare worker suspects in the course of their duties that an individual has been a victim of sexual assault, it must be reported. Procedures are in place in hospitals and other facilities for the reporting of rape victims.

"The facts about sexual violence are:

Victims of sexual violence do not invite or cause the assault to happen. Only the person initiating the sexually violent act is responsible.
Sexual assaults are committed primarily out of anger and/or a need to feel powerful, to control and dominate another person.
Victims of sexual violence are forced, coerced or manipulated to participate in unwanted sexual activity.
Victims are usually traumatized by the assault. Friends and family members may also experience trauma reaction.
Sexual assault is a reportable crime. It is important for adult victim/survivors to consider reporting so sexual offenders can be identified by the system and the community.

In Colorado, professionals are mandated to report the crime if the victim:
Is a child. Goes to the emergency room. Was assaulted by someone in a position of authority or trust. (i.e. coaches, psychotherapists, scout leaders, teachers, priests, etc.) Is physically, emotionally or mentally disadvantaged."1

In the process of her examination protocol, she collected several specimens that would be submitted for DNA analysis. These specimens could later be used as "evidence" in the event of a trial.

"a party seeking to introduce an item of physical evidence must prove that the item was that which was taken from a particular person or place which makes the item relevant as evidence in the trial. Such proof is provided by testimony identifying the item as having been taken from that person or place, and by evidence tracing custody of the item from the time it was taken until it is offered in evidence. This latter evidence is necessary to avoid any
claim of substitution or tampering."2

The collection of specimens by a nurse in a hospital must be treated as a strictly legal process. Often nurses are called upon to draw blood alcohol specimens from suspected drunk drivers, blood or urine drug screens from prospected employees to suspected drug abusers or as in this case semen and skin scrapings for later use in a rape trial.

Any such specimen must be handled with extreme care and with attention paid to established procedures.

After collecting the samples and preparing the documentation, the nurse sealed the package. Per policy, the "kit" once sealed could not be reopened except by the laboratory personnel receiving it for analysis. The nurse was unsure whether the documentation had been prepared properly. Unsure, the nurse broke the tamper evident seal and double checked the paperwork. Satisfied that it was in order, the package was resealed and sent for analysis.

"Specimens are sealed in packages and any tampering with a sealed specimen would be noticed by the laboratory and documented on the specimen chain of custody. In addition, as a practical matter, couriers, express couriers, and postal service personnel do not have access to the specimen chain of custody form since the form is inside the sealed package. Section 2.2(i) of the Mandatory Guidelines that discusses the transportation of a specimen to a laboratory has been revised to clarify this point."3

The defendant in this case was being charged with not one, but several counts of violent crimes.

"Blain Southern, who was charged with several counts of kidnapping, burglary, theft and "sexual intercourse without consent," went to trial on the charges filed against him"4

During the trial the defense would argue against the admissibility of the evidence contained in the kit. They stated that the samples may have been "tampered with," when the seal was broken.

The court disagreed. The defendant was convicted of all charges against him.

The defendant appealed.

Questions to be answered:

1. Did the reopening of the rape kit, constituting a breach of protocol, raise the possibility of evidence tampering?
2. Was the nurse negligent for her breach of procedure in handling the kit containing the DNA specimens?

The defense presented expert witnesses who testified that any "tampering" of the kit could potentially violate the integrity of the samples within.

The court ruled that because the kit was opened to "check the paperwork" that a claim of "tampering" could not be supported. It was noted that none of the specimen boxes themselves, containing the DNA samples, had been re-opened.

"The court stated that "tamper" means to interfere with something improperly, meddle with it, or make unwarranted alterations in its existing condition"4

The nurse in her testimony had clearly stated that her purpose in re-opening the kit was to check the "documents" inside. She did not disturb or re-open the actual sample containers. This satisfied the court.

The defense could produce no clear evidence that the integrity of the "specimens" as opposed to the kit had been violated. The court of appeals affirmed the ruling of the lower court.

It is important to note that most nurses are not specifically trained to recognize and deal with "chain of custody" issues. It is likely that the nurse on duty that night was unfamiliar with the process.

It is important to recognize as well that if the "kits" directions had been followed properly, the issue of "evidence tampering" might never have been raised.

Commonly, attorneys (plaintiff or defense) will "latch on" to any deficiency present in submitted evidence. If a single error or omission or breach of protocol is present, it is their hope that others will be found as well. It raises the possibility of additional error and damages the credibility of the evidence and witnesses involved.

"Opposing counsel will often attack the admissibility of evidence in terms of its relevancy and chain of custody. Especially in the early stages of an investigation, the relevance of a piece of evidence may not be evident. As a result, every item recovered should be treated as though it is relevant."5

This can be applied to sloppy charting just as easily as to "chain of custody" in evidence submission. A chart with incomplete documentation of patient care raises the possibility that care was not given. Regardless of what really happened, it only takes a single discrepancy to raise issues of doubt.

Related Link Sections:

Abuse: Domestic, Physical, Verbal Links:

Clinical Charting and Documentation, Nurses Notes:

Chain of Custody, Medical Legal & Law Enforcement Resources on: The Nurse Friendly:

Direct Patient Care Links on: The Nurse Friendly

Drug Testing, Medical Legal & Law Enforcement Resources on: The Nurse Friendly:


Emergency Department Nurses on the Nurse Friendly

Medical Legal Consulting Nurse Entrepreneurs:

Related Malpractice Cases:

June 13, 1999: Felony Child Abuse Conviction, Made Possible Thanks to Nurse's Documentation.
Child abuse is a "reportable" crime. This means when a healthcare worker suspects in the course of their duties that a child has been abused, it must be reported. Procedures are in place in hospitals and other facilities for the reporting of abused children. In this case, it was the expert documentation of a child's statements by a nurse, physician and field agent that made the conviction of an abuser possible.
State v. Gillard, 936 S.W. 2d 194 - MO (1999).

June 6, 1999: Emergency Department Nurse Verbally Abused, Physician History Well Documented
Official tolerance for verbal abuse and sexual harassment is approaching zero. It is clear that both are still prevalent in healthcare settings today. Enforcing and reporting instances of abuse are critical to an end being put to the situation. In this case, a physician had a "history" of verbal abuse in the facility involved. It was the documentation of previous events that made formal action and administration of a suspension feasible.
Gordon v. Lewiston Hospital, 714 A.2d 539 - PA (1998)


1. FortNet - The Community Information Network. No date given. " Information about Sexual Violence and Sexual Assault." Retrieved September 7, 1999 from the World Wide Web:

2. Vercammen, Kenneth A. No date given. "Proof Of Chain of Custody In A Criminal Case." Retrieved September 7, 1999 from the World Wide Web:

3. Substance Abuse and Mental Health Services Administration. September 1, 1994. Mandatory Guidelines for Federal Workplace Drug Testing Programs. ." Retrieved September 7, 1999 from the World Wide Web:

4. 40 RRNL 3 (August 1999)

5. Zulawski, David E. and Wicklander, Douglas E. February 26, 1996. "Evidence." Bank Fraud Newsletter. Retrieved September 7, 1999 from the World Wide Web:

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Created on August 26, 1999

Last updated by Andrew Lopez, RN on March 23, 2017

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