EvidenceProf Blog

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

Thursday, September 3, 2015

Cropped Video Deemed Inadmissible Due to Rule of Completeness, Best Evidence & Chain of Custody Issues

There's an interesting case out of Arizona that ties directly into the subjects I'm covering both in Evidence class and on the Undisclosed Podcast. That case is State v. Steinle, 2015 WL 4497917 (Ariz.App. 2015).

In Steinle

On December 12, 2012, Alejandra Moran attended a house party. On the same evening, a fight began in the street and a witness, Hector Ponce, used his cell phone to make a video recording of the fight. Several witnesses, including Moran, stated that in the minutes leading up to the altercation, there was both a verbal and physical altercation between Moran and the victim, L.U. Ponce "cropped" the first four and one half minutes from the video, sent the final thirty-one seconds of the video to a friend, and deleted the original video from his cell phone. The final thirtyone seconds of the video showed an individual, purported to be Moran, stab L.U. in the chest. Moran was subsequently indicted for first degree murder.

Detectives were subsequently unable to recover the full version of the video from Ponce's phone, leading Moran to move to exclude the cropped video, citing to the rule of completeness, the Best Evidence Rule, and the chain of custody requirement. The trial court excluded the cropped video on all three grounds.

The State thereafter appealed, and the Court of Appeals of Arizona concluded that the cropped video was properly excluded. In particular, it cited the rule of completeness, Arizona Rule of Evidence 106, which provides that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.

Essentially, the court concluded that it would have been prejudicial to allow for admission of part of the video without the jury getting to see the full video.

I'm less certain of the court's ruling on the chain of custody issue because the majority didn't discuss it. Conversely, the dissent concluded that "[t]he State can properly authenticate the video and establish a continuous chain of custody with testimonies from Ponce, Mahfouz, and the detectives who seized it."

I don't know which side is correct, but Steinle clearly demonstrates that courts can and do exclude evidence based on failure to satisfy the chain of custody requirement. I write this because a number of non-attorneys continue to write me, thinking that issues with the chain of custody go to the weight of the evidence and not its admissibility

I can see why they come to this conclusion because some of the information gathered from an internet search might seem to support this conclusion. But this is where having a little bit of information on a topic can be a dangerous thing. Here's the actual state of the law:

Minor flaws in the chain of custody do go to the weight of the evidence, but major flaws go to admissibility. As the United States District Court for the District of Oregon recently noted in United States v. Crawford, 2015 WL 3827705 (D.Or. 2015):

while some breaks in the chain of custody may be issues for the jury, the failure to document the collection and storage of the bottle cap observed at the arson scene raises insurmountable authentication and identification obstacles. See, e.g., United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir.2000) (finding that the failure "to conduct a thorough initial search" of a bag, the removal of the bag from evidence, and the "circumstances of the discovery of the bail receipt" inside the bag rendered the bail receipt "inherently unreliable" and inadmissible); see also United States v. Mejia, 597 F.3d 1329, 1336 (D.C.Cir.2010) (serious breaks in the chain of custody of an item can result in its inadmissibility).

This, of course, has relevance in the Adnan Syed case. In that case, we know that a video was taken of the windshield wiper lever in a Nissa Sentra after (1) it was released to a private body shop; (2) it was left outside, unlocked for over a week; (3) a Club was put on the steering wheel; and (4) its ignition collar (adjacent to the lever) was replaced. Those are the types of major flaws that go to admissibility, assuming that an attorney makes a proper objection.



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Thank you for this crystal-clear explanation of the distinction between weight of the evidence and admissibility. Your explanations (and analogies) are always easy to comprehend--a real service to those of us who want to know more about how the justice system works. I hope there is a book--directed to the general public--in the works. You now have a huge platform. Congrats on the 30 million listens!

Posted by: Sato Moughalian | Sep 3, 2015 9:24:48 AM

Would the rule of completeness have helped Gutierrez try to get the cell data rendered inadmissible if she'd noticed the disclaimer on the front page?

Posted by: Yoyo | Sep 3, 2015 9:55:14 AM

Why do you keep saying that the car was unlocked for a week? What evidence do you have regarding this particular point?

Posted by: S | Sep 3, 2015 10:11:37 AM

And maybe the body shop can tell you whether the windshield wiper was broken when the car came to them.

Posted by: S | Sep 3, 2015 10:13:39 AM

In the bigger picture (no pun intended) the admissibility of the video seems to be an essential foundation for the detective's claim that the lever was in the same condition. The detective is not an automotive expert and not admitted as such. So without the video his testimony lacks a foundation--i.e, his statement is incapable of being proved or disproved.

So if the video goes out so does the the detective's testimony about the lever and without the testimony about the lever it seems it's condition and how it was damaged diminishes in the overall scheme of the trial. Since we don't know how or when it was damaged it is not possible to draw any conclusions from it.

Posted by: Daniel | Sep 3, 2015 12:20:08 PM

Saito: Thanks.

Yoyo: That would be a Frye issue as opposed to a rule of completeness issue.

S: All I know is that the car is unlocked when the video was taken. I suppose it could have been locked at some prior point, but that muddles the issues even more. The body shop might have answers. This isn’t a big legal point, but I might pursue it at some point.

Daniel: Yes, there were tons of issues with the lever evidence/testimony.

Posted by: Colin | Sep 3, 2015 1:23:26 PM

Thanks. I understand the custody of chain issues.

Posted by: S | Sep 3, 2015 3:45:28 PM

Also, in the video there is a panel in the backseat which could possibly mean that the backseat can be pulled down extending the trunk. I mention this because there was a discussion whether the victim could have been "pretzeled up" in the trunk. I wonder if this could answer that question in the affirmative.

Posted by: S | Sep 3, 2015 3:50:41 PM

In Cooper v. State, 434 Md. 209 (2013), the Md. Court of Appeals explained how chain of custody is established:

"When determining whether a proper chain of custody has been established courts examine whether there is a 'reasonable probability that no tampering occurred.' Breeding v. State, 220 Md. 193, 199 (1959). As the Court of Special Appeals has noted in Wagner v. State, 160 Md.App. 531 (2005), '[t]he circumstances surrounding [an item of evidence’s] safekeeping in that condition [that is substantially the same as when it was seized] in the interim need only be proven as a reasonable probability[,] and in most instances is established by responsible parties who can negate a possibility of tampering and thus preclude a likelihood that the thing’s condition was changed.'160 Md.App. at 552, 864 A.2d at 1049–50 (quotation omitted)."

See also Martin v. State, 78 Md. App. 541, 548 (1989) (“Contrary to the appellant's assertion, precision in developing the ‘chain of custody’ is not an iron-clad requirement, and the fact of a ‘missing link does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspect.’").

All the State needed to meet this low threshold for admissibility was testimony from a police officer that the video of the broken lever showed it in the same condition it was in when the car was seized. Detective Forrester testified to that on 1/27/00. The video was shown and he testified that it showed the damage to the windshield wiper lever that he had seen the day the car was seized. At that point, the video was admissible and CG was free to argue that it had been tampered with to the jury, but let's be honest, that was not going to get her very far. (And, yes, I know that he initially said the selector switch was broken. But if you have ever read a transcript where a witnesses, particularly police witnesses who have to remember details from many different cases, haven't made mistakes like this, I'd be surprised. He corrected himself when his recollection was refreshed with the video.)

Posted by: Jane | Sep 4, 2015 7:28:32 AM

Jane: As you say, the test is whether there is a “reasonable probability that no tampering occurred,” which is established through “the circumstances surrounding [an item of evidence’s] safekeeping….” In other words, it is not established through a State’s official’s bare claim that the item appears to be in the same condition; it is established through the surrounding circumstances.

In this case, the surrounding circumstances do not create a reasonable probability: (1) it was released to a private body shop; (2) it was left outside, unlocked for over a week; (3) a Club was put on the steering wheel; and (4) its ignition collar (adjacent to the lever) was replaced. I talked about this a bit here:


Posted by: Colin | Sep 4, 2015 8:37:24 AM

We are not concerned with whether the car was tampered with, generally. The only reason for introducing the video was to show something not apparent from the photographs of the broken lever. There was no reasonable probability that the windshield wiper lever had been tampered with because the same police officer who was there when the car was seized testified that the video showed it in the same condition as when it was seized. This is not a "bare claim," as you characterize it. It is the testimony of an officer who witnessed the lever at the time of seizure.

You repeatedly make the unsubstantiated claim that the car was left outside unlocked for a week based only on the fact that the video shows the police officer walking up and opening the door without a key. Yet, as was pointed out in comments earlier, there was an existing track through the snow. Is it really so hard to believe that the body shop or the officer unlocked the car, checked the lever to see how best to show its condition, and then they started filming? It just makes zero sense that someone put a club on it, but then left it unlocked.

I don't know what to make of the ignition collar being replaced. But I would be willing to bet a lot of money that if CG had pursued a tampering angle on this, the court would have ruled against her based on Forrester's credible testimony and there is no way that ruling ever would have been reversed on appeal. She had to pick her battles and this was a losing one.

Posted by: Jane | Sep 4, 2015 8:53:56 AM

Jane: I say it's a bare assertion because it would be similar to an officer testifying that the bag of white powder introduced at trial looked similar to the bag of white powder he seized from the defendant during a Terry stop and frisk. The point of chain of custody is to establish what happened to the evidence between seizure and trial.

The fact that we don't know whether the car was locked or unlocked doesn't really help the State. Nor does the fact that Detective Hastings seems to moving the lever before the video starts. As you say, you don't know what to make of the ignition collar. Neither do I. Did a police officer put it back on? Did someone from the body shop? Did someone at the body shop tinker with the adjacent lever when replacing the ignition collar?

We don't know the answers to any of these questions, which is exactly the problem.

Posted by: Colin | Sep 4, 2015 9:23:41 AM

How can you compare a bag of white powder to a windshield wiper lever in a car with the correct VIN number? How many Nissan Sentras with the same VIN as HML's car entered and exited police custody in 1999? How many bags of white powder did? These are not factually analogous at all. A police office never could reasonably testify that a bag of white powder was the same bag of white powder *except* based on chain of custody. A police officer very reasonably could testify that a car was the same car and that the windshield wiper was in the same condition. It is up to the fact finder to decide if these statements are credible, but that goes to weight, not admissibility.

Posted by: Jane | Sep 4, 2015 9:35:29 AM

Jane: My argument doesn't concern the "same item" portion of chain of custody; it concerns the "same condition" portion. In the example I gave, the potential issue would be cross-contamination, etc., the same issue raised by the broken seals on the blood samples from Hae and Adnan. With the windshield wiper lever, the issue is whether it was in the same condition.

Posted by: Colin | Sep 4, 2015 9:45:48 AM

I agree. And I think Officer Forrester's testimony that it was in the same condition as when he saw it amply met the State's burden. See Nixon v. State, 204 Md. 475 (1954) (court abused its discretion by excluding from evidence a "waxer handle" seized from crime scene, left in police officer's car for several days, placed under the officer's mother-in-law's porch for several weeks, then turned over to defense counsel, and finally to an expert for analysis and reversing for a new trial on that basis). Reasonable probability that an item is in the same condition is an extremely low bar.

Posted by: Jane | Sep 4, 2015 10:57:35 AM

jane: I guess we'll have to agree to disagree. From Nixon: "In the instant case, the possibility that red fibers, identical to those of which the shirt of the accused was made as determined by chemical and microscopic examination, could have become embedded in the waxer handle subsequent to the shooting, is so remote as to be negligible....In the instant case the probability that third parties may have had access to the waxer handle while in the back of the car or under the house is extremely slight, and the identification of the article was beyond question."

I think the opposite is true with the windshield wiper lever and that this case is more analogous to the other cases cited in Nixon by the State.

Posted by: Colin | Sep 4, 2015 11:05:32 AM

@Jane, you radically misread Nixon. Here it is for anyone who cares:


First, the debate in Nixon is not about the CONDITION of the object but about its PROVENANCE. In Nixon, the waxer handle contained an "identifying mark" placed there by the police--in effect, a serial number. That is a different situation here where it is the condition of the article that is the primary issue.

Second, the actual holding of the court is this:

"The testimony was so relevant and material, as bearing upon the character of the assault and contradicting the testimony of the only eyewitness, that we think its exclusion an abuse of discretion under the circumstances which amounted to reversible error. Of course, the jury might disbelieve it, or attach little weight to it, but they should have had the opportunity to consider it, when proferred."

So in essence the court is making a determination that it is willing to overlook some chain of custody issues because it believes that the probative value of the evidence outweighs any prejudicial effect. This is a defense-friendly ruling insofar as the appeals court is saying that it was unwilling to allow the judge to exclude an important piece of exculpatory evidence simply because it was the police who mishandled it.

That too makes Nixon a different case because here it is the police mishandling evidence which tends to hurt the defense.

Posted by: Daniel | Sep 4, 2015 12:24:40 PM

It just dawned on me what is really going on in Nixon. Nixon is 1954 and it was Brady vs MARYLAND in 1963 that set the Brady rule regarding exculpatory evidence. So this is really a pre-Brady ruling that foreshadows where the law is going in terms of exculpatory evidence. This isn't a CoC case at all and Jane is just silly to rely on it as such.

Posted by: Daniel | Sep 4, 2015 12:32:21 PM

The rule of completeness is generally more of a device for getting evidence into a trial than keeping it out (e.g., part of a letter written by the defendant, which would be hearsay, is introduced as an admission by a party opponent, so the defendant can bring in the rest under the rule of completeness). I’m not sure how appropriate it is to use that rule to bar otherwise probative evidence such as a video of the stabbing. Certainly, one of the considerations behind the rule is that statements or recordings, out of context, can have a prejudicial effect, but exclusion for that reason might be better evaluated under the general Rule 403 probative value/prejudicial effect balancing test.

As for the best evidence rule, that is supposed to apply when the original document, etc. is still available; in this case, it appears that the original, complete video was not available for production. While courts will still exclude under the rule, generally they do so when the unavailability is in some way the fault of the party seeking to admit the evidence. Here, the video was lost through the misconduct of a witness, not the prosecution. Again, seems like a case for 403 balancing.

In terms of the chain of custody, inadmissibility due to chain of custody issues is primarily a matter of authentication. The chain of custody evidence is required in order to prove that the document (or drugs, or video, or windshield wiper) is what the party introducing it claims that it is (e.g., the same drugs taken from the defendant’s apartment), and, if relevant, that it has not been altered since being found. Here, there does not seem to be any argument that the video of the stabbing is not a video of the same stabbing at issue, or that the part of the video introduced was itself altered. Whether the rest of the video is required to avoid prejudice seems, again, like more of a 403 issue than a chain of custody issue.

In regards to the debate about the applicability of Nixon to the windshield wiper in Adnan’s case, I would say both sides have valid points, and I honestly think a court could go either way. Nixon was about the condition of the object, I disagree with Daniel on that. From Nixon: “The State contends that ‘the real basis for the action of the trial court in excluding Dr. Baker's testimony was that the chain of custody was such that there was no showing that the waxer handle was in the same condition when observed at the scene of the crime as it was when examined by Dr. Baker’.” In that sense, the issue is similar. The Nixon court noted that “there is a natural inference or presumption of continuance in the same condition which varies in each case with the nature of the subject matter and the time element,” and that “the true rule [for whether preliminary testimony that the condition of the article offered remains the same is necessary or desirable] is simply one of ‘proper caution’ to require preliminary proof, where available, of what may properly be shown by inference.” Thus, it is sometimes possible that evidence may be authenticated without any preliminary proof of the condition.

Where the “reasonable probability” rule comes in, according to Nixon, is in establishing that there is no reasonable probability third parties could have accessed the evidence in question. “The case of United States v. S.B. Penick & Co., 136 F.2d 413 (CCA 2d), relied on by the State, merely holds that there is no hard and fast rule that articles offered must be continuously beyond the reach of intermeddler,” and “[i]n the instant case the probability that third parties may have had access to the waxer handle while in the back of the car or under the house is extremely slight, and the identification of the article was beyond question.” In Adnan’s case, it is clear that third parties (e.g., the mechanic) have had access to the windshield wiper, so Nixon does not decide the issue. At the same time, there was apparently direct evidence (the testimony of the officer who found the car) that the condition remained the same (which takes the case of the scope of Nixon’s “inference” ruling), and this testimony may or may or not satisfy the authentication requirement by itself.

Posted by: Josh | Sep 9, 2015 12:24:15 PM

You are correct Jane. Thanks for clarifying this thread.

Posted by: Grey | Sep 9, 2015 8:27:44 PM

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