EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, March 3, 2015

Chain of Fools, Take 3: Chain of Custody & Generic vs. Unique Evidence

In response to yesterday's post, I got a question about the necessity of establishing chain of custody for generic vs. unique evidence. Generic evidence is evidence that is indistinguishable from other pieces of evidence, such as a bag of white powder taken from a suspect. If the prosecution wanted to introduce this bag of white powder or other generic evidence at trial, it would have to establish chain of custody. 

Conversely, unique evidence is evidence that is readily distinguishable from other evidence, such as firearms. Assume that the police execute a search warrant at a suspect's house and seize a revolver. If the prosecution seeks to admit the revolver to prove that the defendant was a felon in possession of a firearm, it would not need to establish chain of custody; instead, it could simply note that the serial number on the gun was the same serial number on the gun seized from the defendant's house.

Conversely, assume that the police seize a revolver from a suspect's home and believe that the suspect used the revolver to murder a victim. Weeks later, the defendant claims that it is impossible the revolver was used to murder the victim because it is broken and can't fire a bullet. At this point, the police decide to take the gun to a firing range and make a video of an officer firing the gun to show that it is functional. In this case, the prosecution would need to establish chain of custody from when the government took possession of the firearm until it was used at the firing range. This might be problematic if, for instance, the government released the revolver to the custody of a gun repair shop before conducting the firing range test. The same goes if the prosecution wanted to introduce a video of a detective demonstrating how a turn or windshield wiper lever in a Nissan Sentra was broken but the video was not created until after the Sentra was released to the custody of a body shop.

As noted in yesterday's post, the point of establishing the chain of custody is creating a reasonable probability that the evidence presented at trial is the same evidence in substantially the same condition as it was when taken into government custody. In some cases, a party will be able to clearly establish that evidence presented at trial is not in substantially the same condition, rendering the evidence inadmissible. For instance, in State v. Bowser, 123 P.3d 230 (Mont. 2005),

Officer Christie testified that the marijuana pipe was not in substantially the same condition as when he locked it into evidence. He  testified that the top of the pipe was on when he locked it into evidence. Officer Christie testified that at the time of trial, however, the top was off. Bishop, the State Crime Lab expert, testified that the top was off the pipe when she received and examined it. The pipe therefore was not in substantially the same condition at trial or when received for testing as when Officer Christie seized it from Bowser's residence. The District Court ruled that there had been a break in the chain of custody and correctly excluded the pipe from evidence.

Meanwhile in State v. Beamon, 213 N.W.2d 314 (Mich. App. 1973), the Court of Appeals of Michigan noted that

No chain of custody was established for the work shirt from time of removal to the time of trial. Furthermore there was testimony that the work shirt was not in the same condition at trial as when removed at the hospital. Admission of the shirt without proper foundation was error.

In other cases, it will be unclear whether evidence was in the substantially the same condition, and the uncertainty will lead to the court excluding the evidence. In Nixon v. State, 105 A.2d 243 (Md. 1954), the State relied on three cases to try to get evidence excluded due to failure to establish chain of custody: State v. Baltimore & O. R. R. Co., 117 Md. 280, 83 A. 166; Blake v. State, 157 Md. 75, 145 A. 185, and Murphy v. State, 184 Md. 70, 40 A.2d 239. According to the Court of Appeals of Maryland:

In the case first cited, it was held that a shoe worn by a boy who was killed when his heel was caught in a railroad switch, was properly excluded from evidence in a civil case, because of failure to show that it was in the same condition as at the time of the accident. It could not have been reversible error in any event, for the fact that his foot was caught was undisputed. In Blake v. State, supra, a conviction for rape alleged to have occurred in a woods, the coat of the accused was exhibited to the jury for their inspection of particles of weeds or burrs lightly attached to it. These particles had not been discovered until the time of the trial, although the coat had been for two months in the possession of the police. It was said...:  'The conclusion of the court is that while there might be, from the facts that the coat had been taken into the custody of the police on the day of the crime, and kept in that custody since, some ground of inference that the contact with the weeds or bushes had occurred on or before the day of the crime, proper caution in the introduction of such evidence * * * requires that testimony tending to eliminate the possibility of attachment of the particles subsequent to the day of the arrest should be introduced as a preliminary. Although exactly this point was not made in the trial of this case, we think it should be met in a retrial.' In Murphy v. State, supra, an offer of the contents of a pocketbook found at the scene of the rape was excluded for failure to show that they were the same as when the pocketbook was found. The ruling was not objected to, nor was it pressed on appeal, and testimony as to a certain card of the accused observed in the pocketbook at the time it was picked up was admitted. Thus the ruling as to the contents, which actually was in favor of the accused, could not have been prejudicial to the State. The conviction was affirmed.

This takes us to the handling of Hae Min Lee's 1998 Nissan Sentra in the prosecution of Adnan Syed. At trial, the prosecution introduced a video of a detective raising and then releasing the turn signal or windshield wiper lever in the Sentra. This video, however, was made sixteen days after the Sentra discovered and after the Sentra had been released to...well, let's look at the exact testimony of the detective who made the video (page 64):

Screen Shot 2015-03-03 at 6.00.39 AM

Lee's Sentra was unique as opposed to generic evidence, but the prosecution was also trying to establish that a particular part of that Sentra was broken, meaning that it needed to establish chain of custody and specifically that the lever was in substantially the same condition. From the above testimony, you can see how this would have been problematic, given that the detective who made the video wasn't sure about whether the Sentra was sent to a body shop or who owned that body shop.

Let's assume, though, that the Sentra was sent to a body shop. That would seem to lead to one of four possibilities: (1) the Sentra was sent to the body shop exclusively to fix the "broken" lever; (2) the Sentra was sent to the body shop to fix the "broken" lever and other damage to the car; (3) the Sentra was sent to the body shop exclusively to fix other damage to the car; and (4) the Sentra was sent to the body shop with no intention of performing any work on the car.

Possibility 4 seems highly unlikely. If it's possibility 1, it's highly likely someone at the body shop had already started tinkering with the lever and trying to fix or see if he could fix it. If it's possibility 2, there still easily could have been such tinkering, and we also have the bigger question regarding what other damage there was to the car. If it's possibility 3, we still have the question about the other damage to the car, and we have a real question about whether the lever was in fact "broken."

In any of these scenarios, recall that photographs of the lever were taken on the day the car was found. If the position of the lever at the start of the video was different from the position of the lever in the photos, that would be another reason to exclude the video on chain of custody grounds, just like in Bowser and Beamon.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/03/d-officer-christie-testified-that-the-marijuana-pipe-wasnotinsubstantiallythe-same-condition-as-when-he-locked-it-into-evide.html

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Comments

I'm confused...you write, "If the position of the lever at the start of the video was different from the position of the lever at the start of the video". Do you mean if the position of the lever at the start of the video was different than the position of the lever in the photos? There was only one video, right? I'm maybe missing something, but this might be a typo I think...

Posted by: Anon | Mar 7, 2015 10:23:13 PM

Anon: Good catch. You're right. I just edited it.

Posted by: Colin Miller | Mar 9, 2015 4:47:30 AM

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