Case Western Reserve University School of Law Scholarly Commons

Faculty Publications

1996

Chain of Custody

Paul C. Giannelli Case Western University School of Law, [email protected]

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Repository Citation Giannelli, Paul C., "Chain of Custody" (1996). Faculty Publications. 345. https://scholarlycommons.law.case.edu/faculty_publications/345

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Chain of Custody

Paul Giannelli*

Authentication or identification Condition of Evidence of real evidence1 refers to the re­ As the passage from McCormick quirement that an item of evidence indicates, sometimes the condition be proved to be genuine, that is, that of an object is as important as its it is what its proponent claims it to identity. Alteration of the item may be. McCormick expressed the re­ reduce or negate its probative value quirement this way: "[W]hen real and may mislead the jury. Thus, be­ evidence is offered an adequate fore physical objects are admissible foundation for admission will re­ in evidence the proponent must es­ quire testimony first that the object tablish that they are in "substantially offered is the object which was in­ the same condition as when the volved in the incident, and further crime was committed."4 that the condition of the object is Determining what changes are substantially unchanged."2 Federal "substantial" depends on how the Evidence Rule 901(a) codifies this changes affect the relevance of the requirement. 3 evidence: "It should, however, al­ ways be borne in mind that founda­ tional requirements are essentially *Albert J. Weatherhead ill & Rich­ requirements of logic, and not rules ard W. Weatherhead Professor of Law, of art. Thus, for example, even a Case Western Reserve University. This radically altered item of real evi­ column is based in part on P. Giannelli & E. Imwinkelried, Scientific Evidence dence may be admissible if its per­ 5 (2d ed. 1993). Reprinted with permis­ tinent features remain unaltered." sion. For example, in United States v. 1 The term "real evidence" is used to Skelley 6 counterfeit bills were ad­ describe tangible evidence that is his­ missible even though they appar­ torically connected with a criminal case, ently changed color because of tests as distinguished from evidence, such as a model, that is merely illustrative. 4 2 2 McCormick, Evidence§ 212, at Gallego v. United States, 276 F2d 8 (4th ed. 1992). 914,917 (9th Cir. 1960). Accord United States v. Zink, 612 F2d 511, 514 (1Oth 3 Fed. R. Evid. 901(a) ("The require­ Cir. 1980) ("condition is materially un­ ment of authentication or identification changed"). as a condition precedent to admissibil­ 5 ity is satisfied by evidence sufficient to 2 McCormick at 8-9. support a finding that the matter in ques­ 6 501 F2d 447 (7th Cir.), cert. denied, tion is what its proponent claims."). 419 us 1051 (1974). 447 CRIMINAL LAW BULLETIN for fingerprints. According to the fying characteristics, such as a court, the change in color did not number or mark, or are made to "destroy the relevance of the bills have such identifying character­ to show their counterfeit character istics by special marks.9 from the identity of serial numbers, and their competence as evidence The Federal Rules recognize this for this purpose [was] unimpaired by method of identification. Rule the . . . possibility of a change in 901(b)(4), entitled "Distinctive char­ color."7 acteristics and the like," provides that "[a]ppearance, contents, sub­ stance, internal patterns, or other Identity of Evidence distinctive characteristics, taken in In criminal trials, it is often nec­ conjunction with circumstances" essary to show that the item seized, may satisfy the authentication re­ such as drugs, was the same item quirement. 10 This method of proof analyzed at the crime laboratory and is merely an application of the first­ introduced at trial. There are two hand knowledge 11 and opinion principal methods of proving the rules 12-the opinion of a lay witness identity of real evidence: first, es­ based on personal observation. tablishing that the evidence is Numerous examples of authenti­ "readily identifiable," and second, cating readily identifiable objects establishing a "chain of custody." are found in the cases. All of these examples involve objects whose Readily Identifiable Evidence characteristics somehow make them umque. If an object is easily identified, "unique and readily identifiable", 8 Serial Numbers there may be no need to establish a chain of custody. As one court has Any item imprinted with a serial noted: number, such as a weapon 13 or dol-

If an exhibit is directly identified 9 State v. Conley, 288 NE2d 296, 300 by a witness as the object which (Ohio App. 1971). See also United is involved in the case, then that States v. LePera, 443 F2d 810, 813 (9th direct identification is sufficient. Cir.) ("Counterfeit notes ... printed Such is the case with many ob­ from a single plate, are unique and iden­ tifiable without proof of chain of cus­ jects which have special identi- tody"), cert. denied, 404 US 958 (1971). 10 See United States v. Clonts, 966 F2d 1366, 1368 (lOth Cir. 1992) ("If the 7 Id. at 451. See also Duke v. State, evidence is unique, readily identifiable 58 So. 2d 764, 769 (Ala. 1952) (shell and resistant to change, the foundation admissible although sheriff scratched for admission need only be testimony initials on it); Davidson v. State, 69 that the evidence is what it purports to SE2d 757, 759 (Ga. 1952) (victim's be."). clothing admissible although washed); 11 Bruce v. State, 375 NE2d 1042, 1073 Fed. R. Evid. 602. (Ind. 1978) (contamination "in no way 12 Fed. R. Evid. 701. vitiated the evidentiary value of the ex­ 13 E.g., United States v. Douglas, 964 hibits"). F2d 738, 742 (8th Cir. 1992) ("Smith 8 2 McCormick at 8. and Wesson with serial number 448 FORENSIC SCIENCE lar bill, 14 may be identified by that ted into evidence, at least in part, on number. this basis.

Police Markings Natural Marks An object that is inscribed with An object may possess distinctive the initials or markings of a police natural characteristics that may officer or other person may be make it readily identifiable.Z1 For readily identifiable. In such cases, example, in United States v. Logan22 the person converts a nonunique a "gun-the only .25 Titan auto­ object into a readily identifiable one matic with a scratched-off serial by placing distinctive markings on number that Officer Grimes had ever it. This practice, recommended in seized-was admitted into evidence crime scene and evidence collection only after Officer Grimes identified manuals, 15 is well accepted in the it by make, model, size, color, style cases. Firearms, 16 bullets, 17 cur­ of its grip, and its scratched-off se­ rency, 18 laboratory slides, 19 and sun­ rial number. We find the government dry other objects20 have been admit- made a prima facie showing of au­ thenticity. " 23 79515"); State v. Kroeplin, 266 NW2d In United States v. Briddle 24 the 537, 540 (N.D. 1978). prosecution introduced evidence 14 E.g., Calderon v. United States, that a button top found at the scene 269 F2d 416,419 (lOth Cir. 1959); State of a burglary came from the v. Conley, 288 NE2d 296, 300-301 defendant's coat. The police officer (OhioApp. 1971). described the button as follows: 15 See Federal Bureau of Investiga­ tion, Handbook of Forensic Science 113 It had a picture of a whale on the (rev. ed. 1994). front of it. It was leather.... And 16 E.g., United States v. Madril, 445 F2d 827, 828 (9th Cir. 1971) (pistol), vacated on other grounds, 404 US 1010 v. Horace, 9 Cal. Rptr. 43, 44 (App. (1972); Lilly v. State, 482 NE2d 457, 1960) (crowbar); State v. Engberg, 708 459 (Ind. 1985). P2d 935, 939 (Idaho App. 1985) (seiz­ 17 E.g., Sims v. State, 252 SE2d 501, ing officer placed initials on poker ma­ 503 (Ga. 1979); State v. Ross, 169 SE2d chine); People v. Sansone, 356 NE2d 875, 878 (NC 1969), cert. denied, 397 101,103 (Ill.App.l976)(stolenrecord US 1050 (1970). See also Almodovar albums); Johnson v. State, 370 NE2d v. State, 464 NE2d 906, 911 (Ind. 1984) 892, 894-895 (Ind. 1977) (knife); State (initials scratched on shell casing). v. Coleman, 441 SW2d 46, 51 (Mo. 1969) (box, watch, and bolt). 18 E.g., United States v. Capocci, 433 21 F2d 155, 157 (1st Cir. 1970) (counter­ E.g., United States v. Reed, 392 feit bill); United States v. Bourassa, 411 F2d 865, 867 (7th Cir.) ("very unusual F2d 69, 72-73 (lOth Cir.) (coin), cert. looking hat"), cert. denied, 393 US 984 denied, 396 US 915 (1969). (1968); Reyes v. United States, 383 F2d, 734, 734 (9th Cir. 1967) (holdup note 19 E.g., Gass v. United States, 416 "was unique and readily identifiable"). F2d 767,770 (DC Cir. 1969); Wheeler 22 v. United States, 211 F2d 19,22-23 (DC 949 F2d 1370 (5th Cir. 1991), cert. Cir. 1953), cert. denied, 347 US 1019 denied, 503 US 925 (1992). (1954). 23 Id. at 1378. 20 E.g., 0' Quinn v. United States, 411 24 443 F2d 443 (8th Cir.), cert. de­ F2d 78,80 (lOth Cir. 1969) Gar); People nied, 404 US 942 (1971). 449 CRIMINAL LAW BULLETIN

it had a sticky substance on the assault. Papse's ability or inabil­ back, as though it might have ity to specify particular identify­ been stuck to something .... [I]t ing features of the ax, as well as was a dark brown in color. Had a the evidence of the ax's alleged whale or fish on it. The tail was changed condition, should then up in the air. Split. And I believe go to the question of weight to be it was the left eye of the animal accorded this evidence, which is that was up. 25 precisely what the trial court ruled. In other words, although The Eighth Circuit held this identi­ the jury remained free to reject the fication sufficient: "Given the government's assertion that this uniqueness of the buttons on ax had been used in the assault, Briddle's coat, we think this identi­ the requirements for admissibil­ fication evidence established that the ity specified in Rule 901(a) had exhibit ... was the button top found been met. 28 at the scene of the burglary."26 Thus, the issue is whether the distinctive characteristics are sufficient to make Chain of Custody it unlikely that another object would have the same characteristics.27 The use of a chain of custody to authenticate evidence is well estab­ lished. Nevertheless, two commen­ Witness :S Uncertainty tators have written that the govern­ A witness's uncertainty in iden­ ing federal rule "can easily be read tifying an exhibit, however, affects as doing away with any chain of the weight, not the admissibility, of custody requirement;"29 This seems the evidence. For example, the Ninth unwise. If anything, there is a need Circuit has written: for more stringent requirements. The mass processing of immunoassay [A]lthough the trial record reveals tests and the increasing volume of the identification of the ax made DNA testing heightens the impor­ by Papse may not have been en­ tance of proper handling procedures. tirely free from doubt, the witness Indeed, improper labeling has been did state that he was "pretty sure" found to be the cause of an error in this was the weapon Johnson had a DNA proficiency test.30 used against him, that he saw the ax in Johnson's hand, and that he was personally familiar with this particular ax because he had used 28 United States v.Johnson, 637 F2d it in the past. Based on Papse's 1224, 1247-1248 (9th Cir. 1980). Ac­ testimony, a reasonable juror cord United States v. Drumright, 534 F2d 1383, 1385 (lOth Cir.), cert. denied, could have found that his ax was 429 US 960 (1976); United States v. the weapon allegedly used in the Capocci, 433 F2d 155, 157 (1st Cir. 1970); United States v. Rizzo, 418 F2d 71, 81 (7th Cir. 1969), cert. denied, 397 25 Id. at 448. us 967 (1970). 26 Id. at 449. 29 2 Saltzburg & Martin, Federal 27 See 2 Wigmore, Evidence § 411 Rules of Evidence Manual478 (5th ed. (Chadbourn rev. 1979). 1990) (citing Fed. R. Evid. 901(a)).

450 FORENSIC SCIENCE

Need for Chain of Custody evidence readily identifiable and eliminates most problems of misiden­ In some situations the proponent tification and contamination.34 must establish a chain of custody. Such proof may be necessary either because the item of evidence is not Lab Analysis readily identifiable, or because more If the relevance of an exhibit de­ than simple identification is neces­ pends on its subsequent laboratory sary to establish the item's rel­ analysis, identification by police evance. markings made at the scene does not provide a sufficient foundation. The Fungible Items markings establish that the exhibit in court was the item seized by the A chain of custody is often re­ police, but a chain of custody may quired for fungible evidence because be necessary to establish that the these items have no unique charac­ item seized was the item analyzed teristics. The inability to distinguish at the crime laboratory. For example, between fungible items makes posi­ in Robinson v. Commonwealth,35 the tive identification by observation court reversed a rape conviction due alone impossible.31 In addition, the to a break in the chain of custody: nature of these items frequently "The mere fact that the blouse and makes them particularly susceptible the panties were identified (by the to tampering or loss.32 Nevertheless, victim at trial] did not prove the the proper handling of fungible evi­ chain of possession necessary to vali­ dence-using lock-sealed enve­ date the F.B.I. analysis of them. "36 lopes33 or containers that custodians then mark and initial-makes the Condition 30 Thompson, "The Myth of DNA If the condition of the object, not Fingerprints," 9 Cal. Law. 34 (Apr. merely its identity, is the relevant 1989) (Cellmark official admitted that the "error occurred because a lab tech­ 34 See United States v. Pressly, 978 nician incorrectly labeled a vial."). F2d 1026, 1028 (8th Cir. 1992) ("The 31 See State v. Conley, 288 NE2d officer who seized the substances [co­ 296,300 (OhioApp. 1971) ("One white caine] testified that he marked them at pill looks much like any other white pill the time of the seizure and that the pack­ and hence positive identification sim­ ages admitted into evidence still bore ply by observation is usually impos­ his marks."); People v. Rivera, 592 sible."). NYS2d 697 (App. Div. 1993) (failure 32 The "danger of tampering, loss, or of arresting officer to mark six fungible mistake with respect to an exhibit is glassine envelopes of heroin at time of greatest where the exhibit is small and seizure resulted in a gap in the chain of is one which has physical characteris­ custody that required a reversal). tics fungible in nature and similar in 35 183 SE2d 179 (Va. 1971). form to substances familiar to people 36 Id. at 181. See also Graham v. in their daily lives." Graham v. State, State, 255 NE2d 652, 655-656 (Ind. 255 NE2d 652, 655 (Ind. 1970). 1970) (wrapper containing white pow­ 33 Lock-sealed envelopes "can be der was initialed at time police took opened only by destroying the seals." possession but break in chain of cus­ United States v. Santiago, 534 F2d 768, tody prior to chemical analysis resulted 770 (7th Cir. 1976). in reversal).

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issue, a chain of custody may be re­ Initial Link quired to establish that the object Disputes over the initial link in was not altered during police cus­ the chain of custody focus on tody. This requirement is a neces­ whether the continuous possession sary safeguard for evidence that is requirement should apply at the time susceptible to undetected contami­ of the incident at issue or at the time nation or deterioration, such as blood when the evidence comes into pos­ samples37 and substances subjected to session of its proponent. According neutron activation analysis.38 to one position, a "chain-of-custody foundation is not required ... for Length of Chain periods before the evidence comes into the possession of law enforce­ When a chain of custody is re­ ment personnel."39 The theory un­ quired, either to show the identity derlying this rule is that "the State of the item or its unchanged condi­ cannot be charged with the respon­ tion, it is necessary to determine sibility of accounting for the custody where the chain begins and ends. of the exhibit" when it is not in its possession.40 This rule has been ap­ Only breaks in possession that oc­ plied in two different types of cases: cur within the period included in the first, those in which a third party had chain of custody affect admissibility. possession of the object prior to the time it was turned over to the po­ lice,41 and second, those in which the 37 See Ritter v. State, 462 SW2d 247, object was not discovered at the 249 (Tenn. Crim. App. 1970) ("Blood specimens ... should be handled with crime scene until sometime after the the greatest of care and all persons who commission of the crime. 42 handle the specimen should be ready to This position misconceives the identify it and testify to its custody and purpose of the chain of custody rule. unchanged condition"). See also The rule is not designed to hold the Glendening &Waugh, "The Stability of Ordinary Blood Alcohol Samples Held police accountable, but rather to en­ Various Periods of Time Under Differ­ sure that evidence is relevant. Po­ ent Conditions," 10 J. Forensic Sci. 192, lice accountability is a means to this 199 (1965) (showing instability of al­ end. If the relevance of an object cohol content in blood samples for dif­ depends on its use in a crime, the ferent temperatures and storage peri­ ods). 38 See Comment, "The Evidentiary 39 Williams v. State, 379 NE2d 981, Uses of Neutron Activation Analysis," 984 (Ind. 1978). 59 Cal. L. Rev. 997, 1013 (1971) ("If 40 Zupp v. State, 283 NE2d 540, 543 two unknowns that are compared to (Ind. 1972). determine whether they came from a 41 common source have both been con­ E.g., Zupp v. State, 283 NE2d 540, taminated in a similar way, it is clear 543 (Ind. 1972); Love v. State, 383 that completely false points of similar­ NE2d 382, 384 (Ind. App. 1978). ity can result"); State v. Johnson, 539 42 See Williams v. State, 379 NE2d SW2d 493, 505 (Mo. App. 1976) (con­ 981, 984 (Ind. 1978) (three-hour delay trol sample used to establish that Neu­ in discovery of revolver); Thornton v. tron Activation Analysis sample was State, 376 NE2d 492, 494 (Ind. 1978) uncontaminated), cert. denied, 430 US (knife discovered in open field subse­ 934 (1977). quent to arrest).

452 FORENSIC SCIENCE

offering party must establish, time of trial in all cases.45 There may through a chain of custody or other­ be some support for this view in the wise, a connection between that ob­ Advisory Committee's Note to Fed­ ject and the crime.43 For example, if eral Rule 901, where the drafters a third party finds a rifle near a crime refer to "establishing narcotics as scene and turns it over to the police taken from an accused and account­ several hours or days after the crime, ing for custody through the period it would be necessary to "account" until trial, including laboratory for the rifle during the time it was in analysis."46 the third party's possession in order The "length" of the chain of cus­ to tie the rifle to the place where the tody, however, depends on the pur­ crime occurred. 44 pose for which the evidence is of­ fered. This point is illustrated by 47 Final Link State v. Conley, which involved a prosecution for the illegal sale of Disagreement over the point at LSD. The drugs were purchased which the chain of custody ends fo­ with marked bills whose serial num­ cuses on whether the chain ends bers had been recorded. The defen­ when the item is introduced at trial dant objected to both the admissi­ or at an earlier stage, for example, bility of the bills and the LSD. The when a laboratory analyzes the item. court wrote: Some commentators have read sev­ eral cases as requiring the prosecu­ To identify a particular item ... tion to trace the chain of custody as being part of a pe1tinent inci­ from the time of seizure until the dent in the past usually requires the showing of a continuous chain of custodians up to the material 43 In United States v. White, 569 F2d moment. When a chemical analy­ 263 (5th Cir.), cert. denied, 439 US 848 sis is involved ... the material (1978), the court noted: "This is not a routine chain of custody situation in moment is the moment of analy­ which the chain is broken between sei­ sis, since this provides the basis zure of the evidence from the accused for the expert testimony and and a subsequent trial. Rather, the al­ makes that testimony relevant to leged break occurred before the govern­ the case. In the case of many other ment came into possession of the heroin." Id. at 266. After citing the rule items, the material moment oc­ in the "typical chain of custody cases," curs at the trial. 48 the court wrote: "We apply the same rule in the instant case." Id. 44 See United States v. Gelzer, 50 F3d 45 See Annotation, "Proof of identity 1133, 1141 (2d Cir. 1995) ("The gov­ of person or thing where object, speci­ ernment concedes that there was not a men, or part is taken from a human 'full' chain of custody established for body, as basis for admission of testi­ the revolver alleged to have been used mony or report of expert or officer based during the robberies and to have been on such object, specimen, or part," 21 discarded during the car chase. At trial, ALR2d 1216, 1236 (1952). Officer Staub testified that he found the 46 Fed. R. Evid. 901, advisory com­ revolver on Scranton Avenue near the mittee note. intersection of Picadilly Downs and 47 gave it to Officer Curtis.") (evidence 288 NE2d 296 (Ohio App. 1971). admitted). 48 Id. at 300.

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The court went on to hold that the The so-called "best evidence" rule chain of custody for the marked bills applies only to writings, recordings, ran from the time the bills were and photographs, not to real evi­ marked until the trial, at which time dence.52 they were identified. The chain of Nevertheless, the Florida Su­ custody for the drugs differed; it ran preme Court has adopted a contrary from the time of seizure to the time position. According to the court, of chemical analysis.49 "when a defendant is charged with As a matter of relevance, this ap­ possession of a controlled substance, proach is sound. The loss or destruc­ that substance, if available, must be tion of the drugs after chemical introduced into evidence."53 In sup­ analysis would not affect the rel­ port of this rule, the court wrote: evance of the expert's testimony concerning the nature of the drugs. 50 An absolute rule that a substance Moreover, the prosecution generally may be introduced or not at the is not required to introduce real evi­ discretion of the prosecutor is dence to prove its case: ·practically undesirable because of its potential for abuse. For ex­ It is not always necessary that tan­ ample, such prosecutorial discre­ gible evidence be physically ad­ tion could deliberately or unwit­ mitted at a trial. ... Even when tingly be used to confuse defense evidence is available it need not counsel and thwart the ability to be physically offered. Thus, the make certain objections, par­ grand larceny of an automobile ticularly objections to chain of may be established merely on custody.... competent testimony describing The state's failure to introduce the stolen vehicle without actu­ the substance in evidence against ally producing the automobile the defendant might put the de­ before the trier of fact.s' fendant in the awkward position of introducing it himself should he wish to challenge its authentic­ 49 See United States v. Grant, 967 F2d 81, 83 (2d Cir. 1992) ("In order for ity where there has been testimony 54 the chemist's testimony to be relevant, of its existence as here .... there must be some likelihood that the substance tested by the chemist was the In addition, the loss or destruction substance seized at the airport."), cert. of the evidence after laboratory denied, 507 US 924 (1993). 50 See United States v. Bailey, 277 F2d 560, 565 (7th Cir. 1960) ("Even if government is not required to introduce the exhibits, including the heroin, had narcotics in evidence to obtain a nar­ not been introduced in evidence the tes­ cotics conviction."); United States v. timony of the witnesses and the stipu­ Figueroa, 618 F2d 934, 941 (2d Cir. lation as to the chemical analysis were 1980) (heroin); Chandler v. United sufficient. ..."); United States v. Sears, States, 318 F2d 356, 357 (lOth Cir. 248 F2d 377, 378 (7th Cir. 1957), cert. 1963) (whiskey bottles). denied, 355 US 602 (1958). 52 See Fed. R. Evict. 1002. 51 Holle v. State, 337 A2d 163, 166 53 (Md. App. 1975) (stolen marked cur­ G.E.G. v. State, 417 So. 2d 975, rency). Accord United States v. Kelly, 977 (Fla. 1982). 14F3d 1169, 1176(7thCir.l994)("The 54 Id. at 977-998.

454 FORENSIC SCIENCE analysis may affect the defendant's courts have indicated that all the right to reexamine the evidence, links in the chain of custody must which could result in the exclusion testify at triaJ.58 The prevalent view, of expert testimony based on the however, is that "the fact of a 'miss­ 5 prior laboratory examination. 5 ing link does not prevent the admis­ sion of real evidence, so long as Links in Chain there is sufficient proof that the evi­ dence is what it purports to be.' "59 The "links" in the chain of cus­ Thus, while a custodian in the chain tody are those persons who have had of possession need not testify under physical custody of the object. Per­ all circumstances, the evidence sons who have had access to, but not should be accounted for during the possession of, the evidence gener­ time it was under that custodian's ally need not be accounted for. Such control. Several recurrent examples persons are not custodians. As noted of "missing link" cases are discussed by one court: "There is no rule re­ in this article. quiring the prosecution to produce as witnesses all persons who were Infonnants in a position to come into contact with the article sought to be intro­ The authentication of evidence by duced in evidence.56 means other than the testimony of Failure to account for the evi­ custodial links frequently arises in dence during possession by a custo­ drug cases where an informant who dian may constitute a critical break has handled the drugs does not tes­ in the chain of custody.57 Some tify at trial. In this situation, an un­ dercover officer who had accompa­ nied the informant can testify about 55 See 1 Giannelli & Imwinkelried, Scientific Evidence § 3-7 (2d ed. 1993) the informant's handling of the (constitutional duty to preserve evi­ drugs. Thus, a noncustodian with dence). 56 Gallego v. United States, 276 F2d 914,917 (9th Cir. 1960).Accord United but he did not see where officer obtained watch); United States v. Lewis, 19 MJ States v. Fletcher, 487 F2d 22, 23 (5th 869 (AFCMR 1985) (prosecution failed Cir. 1973) (fact that "fifteen persons had to show that urine sample analyzed at access to the evidence room" affects lab weight, not admissibility), cert. denied, was the sample taken from the de­ 416 us 958 (1974). fendant). 58 57 E.g., People v. Connelly, 316 NE2d E.g., United States v. Panczko, 353 706, 708 (NY 1974) ("Admissibility F2d 676, 679 (7th Cir. 1965) ("There is generally requires that all those who no evidence as to where or from whom have handled the item 'identify it and Lieutenant Rernkus got the keys"), cert. testify to its custody and unchanged denied, 383 US 935 (1966); Novak v. District of Columbia, 160 F2d 588, 589 condition'"). (DC Cir. 1947) (evidence failed "to 59 United States v. Howard-Arias, identify the sample from which the 679 F2d 363, 366 (4th Cir.), cert. de­ analyses were made as being that nied, 459 US 874 (1982). See also sample taken from the appellant"); United States v. Harrington, 923 F2d Smith v. United States, 157 F2d 705 1371, 1374 (9th Cir.) ("[T]he prosecu­ (DC Cir. 1946) (witness testified that tion was not required to call the custo­ watch presented in court had been dian of the evidence"), cert. denied, 502 handed to him by police officer at scene us 852 (1991).

455 CRIMINAL LAW BULLETIN

firsthand knowledge may supply upon the state."63 Therefore, courts evidence of the object's handling invoke the presumption that "articles while in the custody of the nontesti­ transported by regular United States fying informant. 60 mail and delivered in the ordinary The testimony of a custodial link course of the mails are delivered in also may be dispensed with when substantially the same condition in circumstantial evidence sufficiently which they were sent."64 connects a defendant with drugs Many law enforcement agencies purchased from him by an infor­ recommend registered mail or other mant, that is, a "controlled drug similar means for sending evi­ buy." For example, in Peden v. dence.65 Furthermore, the FBI rec­ United States 61 an informant was ommends stringent packaging re­ searched prior to a drug transaction quirements for items mailed to its and provided with marked money. laboratory. 66 Proof that these proce­ While under surveillance, she met dures were followed, and not the the defendant, and both were imme­ presumption of due delivery, assures diately arrested and searched. The the reliability of the evidence. informant had morphine and the de­ fendant had the marked money. Al­ Minor Links though the informant did not testify, the court held the chain sufficient to Another category of cases in­ connect the defendant to the mor­ volves what rriay be called "minor phine.62 links"-intermediate custodians who have possession for a short pe­ riod of time and merely passed the Postal Employees evidence along to another link. For Postal employees who handle example, in one case a chief chem­ evidence sent to a crime laboratory ist, who had received a sealed enve- by mail are custodial links. Postal employees rarely, if ever, testify at 63 Trantham v. State, 508 P2d 1104, trial, however. A rule requiring ev­ 1107 (Okla. Crim. App. 1973). ery custodian to testify would neces­ 64 Schacht v. State, 50 NW2d 78, 80 sitate calling all postal employees (Neb. 1951). See also Pasadena Re­ who handled the evidence. This search Lab., Inc. v. United States, 169 would "place an impossible burden F2d 375, 382 (9th Cir.) (presumption of regularity applies to postal employ­ ees' handling of vials during shipment), cert. denied, 335 US 853 (1948). 65 60 E.g., United States v. Jones, 404 F.B.I., supra note 15 at 103 (citing F. Supp. 529, 542 (ED Pa. 1975) (un­ U.S. Postal Service, United Parcel Ser­ dercover agent observed defendant gi v­ vice, Federal Express). See also United ing drugs to informant; informant did States v. Godoy, 528 F2d 281, 283 (9th not testify), aff'd, 538 F2d 321 (3d Cir. Cir. 1975) (narcotics sent by registered 1976). mail to laboratory); United States v. Jackson, 482 F2d, 1254, 1266 (8th Cir. 61 223 F2d 319 (DC Cir. 1955), cert. 1973) (registered, special delivery, air denied, 359 US 971 (1959). mail). 62 Id. at 321. See also United States 66 F.B.I., supra note 15 at 92 (use v. Amaro, 422 F2d 1078, I 080 (9th Cir. suitable containers, package each item 1970). separately, and seal securely).

456 FORENSIC SCIENCE

lope of heroin and then turned it over Burden and Standard of Proof to the examining chemist, did not The burden of proving the chain testify. The court upheld the of custody rests with the party of­ admisibility of the evidence because fering the evidence.71 Prior to the the seal was "unbroken when the adoption of the Federal Rules of Evi­ latter received it. " 67 The category of dence, the courts described the stan­ minor links whose testimony is not dard of proof in various ways. The required to establish a chain of cus­ most common expression of the tody includes not only laboratory standard was that the offering party personnel,68 but also police officers had to establish the identity and con­ who receive evidence from a seiz­ dition of the exhibit by a "reason­ able probability."72 Phrases such as ing officer and mail69 or transporC0 "reasonable certainty"73 and "rea­ it to a laboratory for analysis. sonable assurance"74 seem only vari­ In short, "accounting for" all the ants of this standard. The reasonable links in the chain of custody does probability standard appears to re­ not necessarily mean all the links quire no more than the "preponder­ need testify at trial. ance of evidence" or "more probable than not" standard, 75 and some

70 E.g., United States v. Lampson, 67 United States v. Picard, 464 F2d 627 F2d 62, 65 (7th Cir. 1980) (deputy 215,216 n.l (1st Cir. 1972). sheriff who transported evidence did not 68 testify); Bay v. State, 489 NE2d 1220, E.g., United States v. Williams, 1223 (Ind. App. 1986) (detective who 809 F2d 75, 89-90 (1st Cir. 1986) (lab transported marijuana to lab did not tes­ technician need not testify), cert. de­ tify). nied, 482 US 906 (1987); United States v. Glaze, 643 F2d 549, 552 (8th Cir. 71 See United States v. Santiago, 534 1981) (nontestifying chemist received F2d 768, 770 (7th Cir. 1976); 1 and transported narcotics to testifying Wigmore, Evidence§ 18, at 841 (Tillers chemist). rev. 1983). 69 E.g., United States v. Gelzer, 50 72 E.g., United States v. Brown, 482 F3d 1133,1141 (2dCir.l995)("Attrial, F2d 1226, 1228 (8th Cir. 1973) ("rea­ Officer Staub testified that he found the sonable probability the article has not revolver on Scranton Avenue ... and been changed in any important re­ gave it to Officer Curtis. Next, Postal spect''); United States v. Capocci, 433 Inspector Morrison testified that he re­ F2d 155, 157 (1st Cir. 1970). ceived the revolver from Detective 73 See United States v. Jones, 404 F. Curtis and sent it to Washington, D.C., Supp. 529,543 (ED Pa. 1975); Sorce v. for forensic testing."); United States v. State, 497 P2d 902, 903 (Nev. 1972). Jones, 404 F. Supp. 529, 543 (ED Pa. 74 1975) (testimony of officer who mailed See State v. Cress, 344 A2d 57, 61 heroin to lab not necessary where sealed (Me. 1975); State v. Baines, 394 SW2d packages initialed and return receipt 312, 316 (Mo. 1965), cert. denied, 384 introduced), aff'd 538 F2d 321 (3d Cir. US 992 (1966); People v. Julian, 360 1976); United States v. Marks, 32 F. NE2d 1310, 1313 (NY 1977). Supp. 459, 460 (D. Conn. 1940) (po­ 75 See People v. Riser, 305 P2d 1, 10 lice officer who mailed heroin died prior (Cal.) ("The requirement of reasonable to trial; officer's handwriting on sealed certainty is not met when some vital link envelopes identified and package sent in the chain of possession is not ac­ by registered mail). counted for, because then it is as likely

457 CRIMINAL LAW BULLETIN

courts have explicitly expressed the evidence; rather, the court decides standard in those terms.76 This stan­ only whether sufficient evidence has dard is the typical standard in evi­ been introduced from which a rea­ dence law-77 Under this view, chain of sonable jury could find the evidence custody "requirements go to the com­ identified. 80 In other words, the of­ petency of the evidence, not merely fering party need only make a "prima to its credibility."78 Under this view, facie" 81 showing of authenticity to gain the trial court determines whether this admissibility, and the jury decides fi­ standard has been satisfied.79 nally whether the evidence has been sufficiently identified. 82 Federal Rules Not only is the prima facie stan­ dard less stringent than the "more In contrast, Federal Rule 90l(a) probable than not" standard, but it requires only that the offering party also results in a different rule con­ introduce "evidence sufficient to cerning the application of the rules support a finding that the matter in of evidence. Federal Rule 104(a) question is what its proponent provides that in deciding prelimi­ claims." Thus, the trial court does nary questions of admissibility the not decide whether the item has been trial court "is not bound by the rules identified by a preponderance of the of evidence except those with re­ spect to privileges."83 Accordingly, as not that the evidence analyzed was not the evidence originally received"), 80 See Zenith Radio Corp. v. appeal dismissed, 358 US 646 (1959); Matsushita Elec. Indus. Co., 505 F. State v. Serl, 269 NW2d 785, 788-789 Supp. 1190, 1219 (ED Pa. 1980)("The (SD 1978). Advisory Committee Note to Rule 76 See State v. Henderson, 337 So. 104(b) makes plain that preliminary 2d 204, 206 (La. 1976); State v. Will­ questions of conditional relevancy are iams, 273 So. 2d 280, 281 (La. 1973) not determined solely by the judge, for ("clear preponderance"). to do so would greatly restrict the func­ 77 See Bourjaily v. United States, tion of the jury.... "), rev'd on other 483 US 171, 175 (1987) ("We have grounds, 723 F2d 238 (3d Cir. 1983), traditionally required that these [pre­ rev'd, 475 US 574 (1986). liminary] matters be established by a 81 See United States v. Sparks, 2 F3d preponderance of proof."). See also 574, 582 (5th Cir. 1993) (Prosecution Daubert v. Merrell Dow Pharmaceu­ need only make a "prima facie" show­ ticals, Inc.; 113 S. Ct. 2786) (1993) ing that bottles of crack seized from (preponderance of evidence standard accused were the drugs analyzed); applies to the admissibility of expert United States v. Ortiz, 966 F2d 707, 716 testimony under Fed. Evid. R. (1st Cir. 1992) (Rule 901(a) "does not 104(a)). erect a particularly high hurdle."). 78 State v. Serl, 269 NW2d 785, 789 82 See United States v. Goichman, (SD 1978). 547 F2d 778, 784 (3d Cir. 1976) ("[I]t 79 "That determination is to be made is the jury who will ultimately deter­ by the trial judge, not the jury. . . . " mine the authenticity of the evidence, United States v. Brown, 482 F2d 1226, not the court."). 1228 (8th Cir. 1973). Accord United 83 See also United States v. Matlock, States v. Daughtry, 502 F2d 1019, 415 US 164, 172-173 (1974) ("[T]he 1021-1023 (5th Cir. 1974); United rules of evidence normally applicable States v. Stevenson, 445 F2d 25, 27 (7th in criminal trials do not operate with full Cir.), cert. denied, 404 US 857 (1971). force at hearings before the judge to

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if the admissibility decision is en­ away with any chain of custody re­ trusted to the trial court under the quirement."85 Several decisions of "more probable than not" standard, the Fifth Circuit contain language evidence rules would not be appli­ that supports this view. For example, cable and hearsay could be consid­ the court has written that "chain of ered by the court. Rule 104(b), custody goes to the weight rather which governs questions of condi­ than the admissibility of the evi­ tional relevancy, is an exception to dence, and is thus reserved for the 86 Rule 104(a). If Rule 104(b) controls, jury. " The Second Circuit also ap­ the rules of evidence apply because pears to have adopted this less strin­ the jury must share in the authentic­ gent standard: "Fed. R. Evid. 901 requires that to meet the admissibil­ ity decision: ity threshold the government need [W]hile the court's power to only prove a rational basis for con­ cluding that an exhibit is what it is "consider" inadmissible evidence 87 under Rule 104(a) is clear, the claimed to be." substantive determination which Other federal courts of appeal, however, continue to apply the "rea­ the court is required to make on sonable probability" standard that the issue of authentication is applied before the Federal Rules of whether admissible evidence ex­ Evidence wereadopted.88 Moreover, ists which is sufficient to support a jury finding of authenticity.... [O]ur task in ruling on authentic­ 85 2 Saltzburg & Martin, Federal ity is limited to determining Rules of Evidence Manual478 (5th ed. 1990). But see Analysis, Mil. R. Evid. whether there is substantial ad­ 901 ("There appears to be no reason to missible evidence to support a believe that the rule will change present finding of authentication by the law as it affects chains of custody for trier of fact. 84 real evidence especially iffungible."). 86 Ballou v. Henri Studios, Inc., 656 Since the Federal Rules treat authen­ F2d 1147, 1154(5thCir.198l).Accord tication as a matter of conditional United States v. Johnson, 68 F3d 899, relevance, that is, they adopt the 903 (5th Cir. 1995) ("Any break in the chain of custody affects the weight, not prima facie evidence standard, evi­ the admissibility of evidence. Thus, if dence rules apply in this context. the district court correctly finds that the Whether the Federal Rules of government has made a prima facie Evidence were intended to effect a showing of authenticity, then the evi­ major change in the chain of custody dence is admissible, and issues of au­ thenticity are for the jury to decide."); requirements is unclear. Two com­ United States v. Shaw, 920 F2d 1225, mentators have written that "Rule 1229-1230 (5th Cir) ("any break in the 901(a) can easily be read as doing chain of custody of physical evidence does not render the evidence inadmis­ sible but instead goes to the weight that determine the admissibility of evi­ the jury should accord that evidence."), dence."). cert. denied, 500 US 926 (1991). 84 Zenith Radio Corp. v. Matsushita 87 United States v. Hon, 904 F2d 803, Elec. Indus. Co., 505 F. Supp. 1190, 809 (2d Cir. 1990), cert. denied, 498 US 1220 (ED Pa. 1980) (emphasis added), 1069 (1991). rev' d on other grounds, 723 F2d 238 (3d Cir. 1983), rev'd 475 US 574 88 E.g., United States v. Williams, 44 (1986). F3d 614, 618 (7th Cir. 1995) ("reason-

459 CRIMINAL LAW BULLETIN

decisions of both the Fifth89 and Sec­ accident, carelessness, error or ond Circuits90 also cite the "reasonable fraud, or (B) testimony describ­ probability" standard as the threshold ing real evidence of the type set requirement under Rule 901. forth in (A) if the information on The standard on appeal for re­ which the description is based viewing a trial court's decision on was acquired while the evidence identification is whether it is an was in the custody or control of abuse of the court's discretion.91 the prosecution, the prosecution must first demonstrate as a mat­ State Rules ter of reasonable certainty that the evidence is at the time of trial or Some state adaptations of the was at the time it was observed Federal Rules specifically require a properly identified and free of the chain of custody. For example, possible taints identified by this Alaska Rule 90l(a) provides: paragraph. (2) In any case in which real (I) Whenever the prosecution evidence of the kind described in in a criminal trial offers (A) real subparagraph (1) of this subdivi­ evidence which is of such a na­ sion is offered, the court may re­ ture as not to be readily identifi­ quire additional proof before de­ able, or as to be susceptible to ciding whether to admit or adulteration, contamination, exclude evidence under Rule 403. modification, tampering, or other changes in form attributable to Application of the Standard of able likelihood"); United States v. Proof Harrington, 923 F2d 1371, 1374 (9th Cir.), cert. denied, 502 US 852 (1991); To satisfy its burden of proof, the United States v. Cardenas, 864 F2d prosecution need not eliminate ev­ 1528, 1532 (lOth Cir.), cert. denied, 491 ery possibility of substitution, alter­ US 909 (1989); United States v. Rans, ation, or tampering. The "mere pos­ 851 F2d 1111, 1114 (8th Cir. 1988). sibility of a break in the chain does 89 See Ballou v. Henri Studios, Inc., not render the physical evidence in­ 656 F2d 1147, 1155 (5th Cir. 1981); United States v. Albert, 595 F2d 283, admissible, but raises the question 290 (5th Cir.), cert. denied, 444 US 963 of weight to be accorded by the (1979). jury."92 Accordingly, discrepancies 93 94 90 United States v. Gelzer, 50 F3d concerning the weight, number, 1133, 1141 (2d Cir. 1995) ("There was sufficient evidence to establish that it is more likely than not that the revolver 92 United States v. Jardina, 747 F2d offered at trial was the same as that re­ 945, 951 (5th Cir. 1984), cert. denied, covered by Officer Staub."). 470 us 1058 (1985). 91 E.g., United States v. Ladd, 885 93 See United States v. Godoy, 528 F2d 954, 956 (1st Cir. 1989); United F2d 281, 283 (9th Cir. 1975); People v. States v. Jones, 687 F2d 1265, 1267 (8th Zipprich, 490 NE2d 8, 10-11 (Ill. App. Cir. 1982); United States v. Howard­ 1986). Arias, 679 F2d 363, 366 (4th Cir.), cert. denied, 459 US 874 (1982); United 94 See United States v. Hon, 904 F2d States v. Mullins, 638 F2d 1151, 1152 803, 8 10 (2d Cir. 1990), cert. denied, (8th Cir. 1981). 498 US 1069 (1991); United States v.

460 FORENSIC SCIENCE

date,95 and labeling96 of evidence sloppiness, regrettable in a foren­ often will not result in exclusion. In sic laboratory. Yet the net effect one case a four-day delay, during of any such disarray on the au­ which drugs and a gun remained in thenticity of the evidence de­ a police officer's car trunk, did not pended on what inferences a rea­ result in exclusion of the evidence.97 sonable factfinder might choose In another case, the court ruled that to draw from it. Where, as in this "[a]lthough the chain of custody for case, a trier chooses among plau­ the bottles may not be perfect, we sible (albeit competing) infer­ conclude that the district court did ences, appellate courts should not not abuse its discretion in admitting intrudeY)() this evidence."98 In United States v. Ladd,99 the Accordingly, the evidence was ad­ First Circuit stated the rule as fol­ missible. The same court, however, lows: ruled that another item of evidence should have been excluded due to a In the last analysis, the prosecu­ "missing link" that resulted from a tion's chain-of-custody evidence discrepancy between laboratory must be adequate-not infallible. identification numbers: "In short, Here, some links in the chain there was no competent proof to in­ were rusty, but none were miss­ dicate that the sample extracted from ing. Without question, the defense Massey's corpse was the one which succeeded in showing a certain CSL tested. An important step in the custodial pavane was omitted."101 Clark, 425 F2d 827, 833 (3d Cir.), cert. denied, 400 US 820 (1970). Presumption ofRegularity 95 See United States v. Robinson, 967 In satisfying its burden of proof, F2d 287,291 (9th Cir. 1992) ("govern­ the prosecution is frequently aided ment concedes that there is a discrep­ ancy regarding the date of seizure"); by the so-called presumption of United States v. Barcella, 432 F2d 570, regularity. As one court has com­ 572 (1st Cir. 1970). mented: 96 See United States v. Kelly, 14 F3d 1169, 1175-1176 (7th Cir. 1994) (dis­ In the absence of any evidence to crepancy in inventory did not preclude the contrary, the trial judge was admissibility of evidence); United entitled to assume that this offi­ States v.Ailocco, 234 F2d 955,956 (2d cial would not tamper with the Cir.), cert. denied, 352 US 931 (1956); sack and can or their contents. Ingle v. State, 377 NE2d 885, 892 (Ind. App. 1975); State v. Beaudoin, 386A2d 731, 733 (Me. 1978); Renner v. Com­ 100 Id. at 957. See also United States missioner of Pub. Safety, 373 NW2d v. Scott, 19 F3d 1238, 1245 (7th Cir. 628, 632 (Minn. App. 1985). 1994) ("[T]he government does not 97 need to prove a 'perfect' chain of cus­ United States v. Logan, 949 F2d tody, and any gaps in the chain go to 1370, 1377 (5th Cir. 1991), cert. denied, the weight of the evidence and not its 503 us 925 (1992). admissibility. In this case there was at 98 United States v. Johnson, 977 F2d most a minor gap in the chain of cus­ 1360, 1368 (lOth Cir. 1992), cert. de­ tody."); Kennedy v. State, 578 NE2d nied, 506 US 1070 (1993). 633, 639 (Ind. 1991). 99 885 F2d 954 (1st Cir. 1989). 101 885 F2d at 957.

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Where no evidence indicating tody until the integrity of the evi­ otherwise is produced, the pre­ dence has been put in issue. 105 sumption of regularity supports the official acts of public offic­ Another has commented that the ers, and courts presume that they "Government's burden ... cannot have properly discharged their be diluted by unwarranted presump­ official duties. 102 tions about the evidence it seeks to introduce.''106 In sum, if the prosecu­ Several cases have extended the tion has met its burden of proof, the presumption to hospital person­ 103 presumption of regularity is not nel. The presumption of regular­ needed. If the prosecution does not ity, however, has been criticized. As meet its burden, the presumption Wigmore notes, the presumption of should not be used to save a defi­ regularity has "more often [been] ciency in proof. Therefore, the pre­ mentioned then enforced."104 Some sumption should be discarded as courts have also objected to its use: both misleading and unnecessary. The presumption of regularity, if it can be dignified as a rule, does Methods of Proof not serve as a substitute for evi­ dence when authenticity is, as The defense will often stipulate 107 here, challenged on not insub­ to the chain of custody. As with stantial grounds. At best it may all stipulations, however, care must relieve the government of the ne­ be taken in the drafting. In one case, cessity for offering proof of cus- the stipulation failed to state that the material seized from the defendant was the same material tested by the 102 Gallego v. United States, 276 F2d chemist, and the appellate court held 914, 917 (9th Cir. 1960). Accord United 108 States v. Scott, 19 F3d 1238, 1245 (7th that admission was error. Cir.) ("In making this determination, the Absent a stipulation, the chain of district court makes a 'presumption of custody typically is established, at regularity,' presuming that the govern­ least in part, by the testimony of the ment officials who had custody of the persons ("links") who had posses­ exhibits discharged their duties prop­ erly."), cert. denied, 115 S. Ct. 163 sion of the object. These witnesses (1994); United States v. Kelly, 14 F3d may refresh their recollections by 1169, 1175 (7th Cir. 1994)("When there referring to any available documen­ is no evidence of tampering, a presump­ tation. 109 tion of regularity attends the official acts of public officers in custody of evi­ dence; the courts presume they did their 105 United States v. Starks, 515 F2d jobs correctly."); United States v. Miller, 112, 122 (3d Cir. 1975). 994 F2d 441, 444 (8th Cir. 1993) ("of­ ficials are entitled to the presumption 106 United States v. Lampson, 627 of integrity"). F2d 62, 65 (7th Cir. 1980). 103 Gass v. United States, 416 F2d 107 E.g., People v. Perine, 402 NE2d 767, 770 (DC Cir. 1969); Pasadena Re­ 847, 849 (Ill. App. 1980) (chain of cus­ search Lab., Inc. v. United States, 169 tody stipulated). F2d 375, 381-382 (9th Cir.), cert. de­ 108 People v. Maurice, 202 NE2d, nied, 335 US 853 (1948). 480, 481 (Ill. 1964). 104 9 J. Wigmore, Evidence § 2534, 109 See Fed. R. Evict. 612 (use of writ­ at 488 (3d ed. 1940). ings to refresh memory); United States 462 FORENSIC SCIENCE

Habit Evidence by hospital personnel in the regular course of business. 112 The proponent may also intro­ These cases, however, predate the duce evidence of habit or routine adoption of the Federal Rules of practice to establish the chain of Evidence. Federal Rule 803(8)(B), custody. Federal Rule 406 provides which governs the public records that evidence of the routine practice exception specifically excludes "in of an organization is relevant to criminal cases matters observed by prove that the conduct of the orga­ police officers and other law en­ nization "on a particular occasion forcement personnel. 113 According was in conformity with the ... rou­ to the legislative history, this exclu­ tine practice." Accordingly, evi­ sion was based on the belief that dence of the standard operating pro­ "observations by police officers at cedures of police departments and the scene of the crime or the appre­ laboratories in safeguarding real hension of the defendant are not as evidence may be used to establish 110 reliable as observations by public the chain of custody. officials in other cases because of the adversarial nature of the confronta­ Documentary Evidence tion between the police and the de­ fendant in criminal cases." 114 The Sometimes the chain of custody scope of the police records exclu­ has been established by documen­ 111 sion has divided the courts. Some tary evidence. For example, courts courts seem to apply a per se rule, have held that laboratory slides and under which all police reports are labels on specimen bottles fall automatically excluded, 115 while within the federal Business Records others have adopted a more flexible Act because they had been prepared approach. For example, some courts have held that Congress "did not v. Stevenson, 445 F2d 25, 27 (7th Cir.) intend to exclude [police] records of (in establishing chain of custody, offic­ routme,. nona dversar1a . I rna tt ers. "116 ers "refreshed their recollection from official records"); cert. denied, 404 US 857 (1971). 112 See United States v. Duhart, 496 110 See United States v. Jones, 687 F2d 941 944 (9th Cir.), cert. denied, F2d 1265, 1267 (8th Cir. 1982) (evi­ 419 US '967 (1974); Gass v. United dence handled by government accord­ States, 416 F2d 7 67, 771 (DC Cir. ing to "established procedures"); 1969); Wheeler v. United States, 211 United States v. Luna, 585 F2d I, 6 (1st F2d 19, 22-23 (DC Cir. 1953), cert. Cir.) ("normal police procedure"), cert. denied, 347 US 1019 (1954). denied, 439 US 852 (1978); United H3 See also Mil. R. Evid. 803(6), States v. Burris, 393 F2d 81, 83 (7th 803(8) (specifying that "chain of cus­ Cir. 1968) (chemist testified about stan­ tody documents" are admissible). dard procedure of laboratory). 114 s. Rep. No. 1277, 93 Cong., 2d 111 E.g., United States v. Luna, 585 Sess. 17, reprinted in 1974 USCCAN F2d 1, 6 (1st Cir.) (police "accou_nt_ed 7051,7064. for the evidence, either by official records or by testimony concerning Hs See United States v. Ruffin, 575 normal police procedure"), cert. denied, F2d 346, 356 (2d Cir. 1978); Unit~d 439 US 852 (1978); Graham v. State, States v. Oates, 560 F2d 45, 67 (2d C1r. 255 NE2d 652, 654 (Ind. 1970) ("po­ 1977). lice custody records" may be used to ll6 United States v. Hernandez-Rojas, establish chain of custody). 617 F2d 533, 535 (9th Cir.), cert. de-

463 CRIMINAL LAW BULLETIN

Chain of custody records should say exception. 118 This interpretation be considered routine nonadver­ would preclude the admissibility of sarial records. The habitual use of chain of custody documents as busi­ chain of custody documents is the 119 most reliable way to ensure that ness records or as recorded recol­ 120 there is not a break in the chain. lection if those documents are in­ Their use should be encouraged. In admissible as police records under a civil paternity action filed by the Rule 803(8). This view, however, is state, the court rejected a chain-of­ not accepted by all courts. 121 custody challenge to DNA results be­ United States v. Coleman 122 is one cause a laboratory supervisor testified: of the few cases dealing with the The [chain of custody] document admissibility of chain of custody was developed in order to allow documents under the Federal Rules. the supervisor to confirm the The defendant contended that police chain of custody without having reports are never admissible when to bring numerous laboratory per­ sonnel to court. Dr. Harmon thor­ offered by the prosecution, and thus oughly discussed the document DEA forms of chemical analysis and and its safety devices. She testi­ lock-seal envelopes containing no­ fied in detail as to her laboratory's tations of the date, time, and loca­ procedures for drawing blood tion of the sale of heroin and an iden­ samples and assuring proper iden­ tification of the seller by a John Doe tification of both the individuals having the test and the blood number were inadmissible. The samples drawn from those indi­ court rejected this argument, hold­ viduals. She testified that once the ing that the documents were not un­ blood samples were received by reliable on the ground that they were the laboratory they were checked prepared for the purpose of litiga­ for any sign of tampering. 117 tion. Although the court recognized Another issue concerns the rela­ that the forms "have certain indicia tionship between the public records of 'police reports,' " it found that the exception and other hearsay excep­ tions. Several courts have held that documents subject to exclusion un­ 118 See United States v. Oates, 560 der the public records exception are F2d 45 (2d Cir. 1977). not admissible under any other hear- 119 Fed. R. Evid. 803(6). 12°Fed. R. Evid. 803(5). 121 Several courts have found the con­ nied, 449 US 864 (1980); United States gressional purpose of excluding police v. Orozco, 590 F2d 789, 793 (9th Cir.), reports under Rule 803(8) was intended cert. denied, 439 US 1049 (1979). to apply only when such reports were 117 admitted in lieu of testimony. United J.E.B. v. State, 606 So. 2d 156, States v. King, 613 F2d 670, 673 (7th 157 (Ala. Civ. App. 1992), cert. denied, Cir. 1980); United States v. Sawyer, 607 1992 Ala. Lexis 1296 (Ala. Oct. 12, F2d 1190, 1193 (7th Cir. 1979), cert. 1992), rev'd and remanded, J.E.B. v. denied, 445 US 943 (1980). Alabama ex rei. T.B., 114 S. Ct. 1419 (1994). 122 631 F2d 908 (DC Cir. 1980).

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forms and lock-sealed envelopes Chain of custody documents have contained "only skeletal informa­ also been challenged on confronta­ tion, and are prepared not solely with tion grounds but not succcessfully. 124 an eye towards presentation, but to­ wards preserving a record of the 124 But see Payne v. Janasz, 711 F2d chain of custody." 123 1305, 1313-1314 (6th Cir. 1983) (ad­ mission of evidence tag bearing inscrip­ tion "10001 Cedar Avenue" did not vio­ 123 Id. at 912. late right of confrontation).

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