Chain of Fools, Take 2: Do Problems With Chain of Custody Go To Admissibility or Weight?

In response to yesterday's post, I got the following question: Do problems with regard to the chain of custody go to the admissibility of the evidence or just the weight of the evidence? The answer: It depends. As noted, the proponent of evidence (e.g., drugs seized from the defendant) uses the chain of custody (evidence or proffers from everyone who handled the evidence) to satisfy the requirement that the evidence introduced at trial is that same evidence (e.g., the drugs) in substantially the same condition. If problems with the chain of custody make it so that there is not a reasonable probability of sameness (e.g., there is a decent chance the drugs were cross-contaminated), the evidence is inadmissible. If, despite problems with the chain of custody, there is still a reasonable probability of sameness, the evidence is still admissible, and the problems merely go to the weight of the evidence (e.g., how much weight the jury should give the evidence). Yesterday, I cited to the the opinion of the Court of Special Appeals of Maryland in Amos v. State, 400 A.2d 468 (Md.App. 1979), which said the following on the issue:

Although for purposes of admissibility the chain of custody authentication of evidence need not be beyond a reasonable doubt, it must create a reasonable probability of sameness, just as in a like instance it must preclude by reasonable probability, any tampering.

In Amos, the reasonable probability of sameness was destroyed based on the problems with the chain of custody, rendering the (drug) evidence inadmissible For a couple of other examples of cases in which Maryland courts deemed evidence inadmissible based upon problems with the chain of custody, see Gillis v. State, 456 A.2d 89, 93 (Md.App. 1983) ("Under these circumstances, the trial judge should have required the witnesses to be produced. In the absence of such requirement, the admission of the drugs as an exhibit was error."); and Parker v. State, 554 A.2d 429 (Md.App. 1989) ("Accordingly, we hold that the State failed to establish a complete chain of custody when it did not call the laboratory technician as a prosecution witness despite a timely demand that it do so. It follows that the photograph, chain of custody form and analysis report were erroneously admitted into evidence.").

So, when do problems with the chain of custody merely go to the weight of the evidence?

Let's take a look at the opinion of the Court of Special Appeals of Maryland in Martin v. State, 554 A.2d 429 (Md.App. 1989). 

A search of Martin, appellant, at the police station yielded a partially burned cigarette made from "Tops" rolling paper that smelled of marijuana and PCP. The items were placed in a lock seal envelope and put in the narcotics mailbox at the station.

A civilian employee of the police department, George Roby, took the envelope from the mailbox and brought it to the property warehouse. Corporal Anthony Coleman of the Maryland State Police Property Section received the custody statement and the envelope with the drugs on June 1, 1987. He put the envelope in a vault until he could transport it to the Pikesville laboratory. Later that day, he delivered the drugs to Trooper Ron Presnell, the lab intake officer. Presnell observed as Coleman opened the envelope. The two discovered 12 tinfoil wrappers, which contained a green substance (suspected PCP), rather than the 11 indicated on the chain of custody statement. Trooper Presnell did not sign the statement, but did hold the evidence until the chemist took it to be analyzed; he received it back again after the analysis. A second individual, Trooper Flowers, also accepted and held the drug evidence before and after the analysis. Because of their similar duties, Flowers would sometimes return evidence for Presnell if he was in court and vice versa.

The chemist, Jocelyn Sulit-Proctor, did an analysis of the substance and found PCP (phencyclidine) and marijuana. She resealed the envelope after she finished the tests. At trial, she reopened it and testified that the seals had not been tampered with.

On September 21, 1987, Coleman retrieved the drugs from Trooper Flowers at the Pikesville lab. He checked to be sure the wrapping was intact, checked the signatures on the seals, checked for tampering with the envelope, and then signed for the package. He returned the drugs to the vault where they remained until he gave the package to Officer Hamilton on the day of the trial. Hamilton verified this in his testimony and said the drugs were in substantially the same condition as they had been when confiscated from the appellant.

Trooper Flowers didn't testify at trial, prompting Martin to claim that the chain of custody log and the tinfoil packets were inadmissible because "the State failed to produce a witness in the chain of custody." The trial court disagreed, and so did the Court of Special Appeals of Maryland. First, the Court of Special Appeals of Maryland found that Flowers merely had "bare possession" and not "custody" of the packets. Second, the court concluded that

The record in this case indicates the evidence admitted at trial was substantially the same as it was when taken from the appellant. Further, Trooper Flowers handled the evidence only after the chemist had analyzed the substances and found marijuana and PCP...; he did not sign the chain of custody statement. Those facts lead us to conclude that the trial court was correct in admitting the evidence despite the failure of one person who had contact with the evidence to testify at trial.

In other words, any problem with the chain of custody was trivial and insufficient to destroy the reasonable probability of sameness; as such, the problem merely went to the weight of the evidence. As support for its opinion, the court cited several opinions from other jurisdictions in which similarly trivial problems with the chain of custody merely went to the weight of the evidence as opposed to admissibility. "See also State v. Ourso, 502 So.2d 246 (La.App. 3 Cir.1987), cert. denied, 505 So.2d 1138 (1987) (chain of custody established where lab technician did not testify because he was no longer employed by crime lab and no longer lived in the area)."

-CM