Chain of Custody Evidence Handling documentation and Court Lance Gima CWAG Alliance Partnership Forensic Science Project Director Chief (retired) CA Dept. of Justice Forensic Science Consultant to Proderecho Founder and Co Chair man of Board of the Alliance of Forensic Scientists currently consulting on projects in El Salvador, Guatemala, and South Korea Advisory Board Member, University of California Berkeley Human Rights Center Member of Chile’s International Committee of Experts

Simply defined, Chain of Custody refers to the documentation of who had possession of the evidence, from the time of collection to the time of analysis and beyond.

WHEN DISCUSSING CHAIN OF CUSTODY PROCEDURES, EVIDENCE HANDLING, EVIDENCE PRESERVATION, AND EVIDENCE PACKAGING AND SEALING MUST ALSO BE INCLUDED IN THAT DISCUSSION.

What we are trying to do, is to maintain the integrity of the evidence What we are trying to do, is to maintain the integrity of the evidence. This means, we can demonstrate to the COURT that the evidence collected, was the evidence tested and reported. i.e no change, no contamination, no replacement, etc. occurred.

Saferstein Continuity of possession Every person who handled or examined evidence must be accounted for Starting from the crime scene, it is critical to mark evidence, package it correctly, mark packages, ensure proper seals, record the chain of possession, preserve evidence , keep an internal chain.

Key Components of Evidence control System (per ASCLD/LAB) Chain of custody record (minimum) Signature of person receiving evidence Date of receipt or transfer Description of evidence Proper marking of evidence Evidence seals Secure area for evidence storage.

ASCLD/LAB Accreditation Standards – 5.8.1.1 “Forensic science laboratories shall be able to demonstrate that the evidence examined and reported on was that submitted to the laboratory. A “chain of custody” record shall be maintained from the time of receipt and reflect all internal transfers. The record shall detail each person taking possession of an item of evidence, or the location of that item.”

ASCLD/LAB Accreditation Standards – 5.8.1.1.1 “When evidence is subdivided in the laboratory , sub-items shall be tracked through a documented chain of custody record to the same extent that original items of evidence are tracked.”

ASCLD/LAB Accreditation Standards - 5.8.4.1 “Any evidence not in the process of examination that must be placed in a container to protect it from loss, cross- transfer or contamination shall be stored under proper seal.”

ASCLD/LAB Accreditation Standards – 5.8.4.2 “All evidence not in the process of examination shall be maintained in a secured, limited-access storage area.”

FBI CODIS Standards Standard 7.1.1 Marking requirements Standard 7.1.2 Chain of Custody requirements Standard 7.1.3 Procedures to “minimize loss contamination and/or deleterious change of evidence and work product in progress.

FBI CODIS STANDARDS Standard 7.1.4 The laboratory shall have secure, controlled access to areas for evidence storage and work product in progress. Standard 7.2 “Where possible, the laboratory shall retain a portion of the evidence sample or extract. Standard 7.3 The laboratory shall have and follow a documented policy for the disposition of evidence that includes a policy on sample consumption.

Evidence Control System Written Procedures Collection, handling, packaging, and preservation Chain of custody documentation of evidence collected at the crime scene, transported to the laboratory, within the laboratory and transport out of laboratory. Security of evidence at all times Training Roles and responsibilities Audits / Accreditation?

Note: Additional information along with the chain of custody may be needed for Reference samples Signature of subject Formal identification papers of subject Thumbprint of donor Name and signature of witness

Evidence Packaging To Prevent Appropriate To Object Contamination Loss Deterioration Appropriate To Object Labeled For Identification

Evidence Sealing Apply Tape Seal across all openings EAM 02/19/03 Apply Tape Seal across all openings Initial and Date Seal

Preserving Original Seal EAM 02/19/03 EAM 02/19/03 LG 2/29/9

IMPROPER SEAL!

Example of Chain of Custody Form

Documentation Sketches from Crime Scene Photos from Crime Scene Chain of Custody documents Notes from Laboratory Exams Quality Control information Communication records Report

ACSLD/LAB standard 4. Documentation to support conclusions shall be such that in the absence of the analyst, another competent analyst or supervisor could evaluate what was done and interpret the data. LG; Documentation must be complete to the degree that you or another perito could review the documentation 20 years later and able to understand what was done and why. For Post Conviction cases and COLD HITs 26

ASCLD/LAB Chapter 4.13.2.5 Note. 1. Examples of ways to document the basis for conclusions derived from evidence examination include but not limited to a narrative description of the examination process and observations made, photographs, diagrams, worksheets which provide spaces or sections for the insertion of data or other observations made during various steps of the examination process or a combination of two or more of these approaches. LG: What specific procedures used and were all instruments were calibrated and reagents were working properly. 27

Are photographs evidence?

Shoeprints

Firearms Evidence- Distance Determination Contact Near Contact Contact with imprint Mid-range shotgun blast

ASCLD/LAB Accreditation Standards – 5.8.4.5 “When evidence such as latent prints and impressions, can only be recorded or collected by photography, and the image itself is not recoverable, the photograph or negative of the image shall be treated as evidence.”

Items (non evidence) where you might follow Chain of Custody Principles Case record --- File folder Personnel file

Your case record Is it important to maintain the integrity of the contents of the file? How do you know you have a complete file?

Personnel Files Is it important to maintain the integrity of a personnel file? How might that be accomplished? Rules about access tracking How do you know the file hasn’t been tampered with?

Chain of Custody and Court

HYPOTHETICAL Gang related stabbing at a bar. Several people stabbed, one died. Police arrive before suspects can escape. CSI’s confiscate six knives from six different subjects. All the knives are similar. Knives packaged individually and transported to the lab. Analysis of blood found on one knife has blood of victim on it. The other knives did not have the blood of deceased on it.

Role of Defense Determine if the item that was tested and implicates the suspect, was in fact the item “found in his/her possession”. Item mix-up Someone replaced the item Try to establish that the item might have been contaminated between the time item confiscated/collected to the time tested Try to establish that the evidence could have changed in some way because of improper storage

Role of Defense (con’t) Try to suggest that during testing, the analyst mixed-up samples That the analyst took the reference sample and analyzed it twice, marking one of them the questioned item That the examiner mismarked evidence that looked similar to other items. That the questioned item was contaminated with the reference sample’s marker (as in DNA)

Role of the Defense Try to suggest that someone else had access to the evidence while it was in the process of being analyzed. Try to determine if another analyst actually did part of the testing of the item. Show that sloppy record keeping means sloppy work……..

Questions for the Crime Scene investigator or evidence collector. Were precautions taken not to contaminate the evidence? How do you know that item marked item 1, is in fact item 1 as it has been identified in court. Did you properly preserve the evidence… If yes, how? Do you know who took possession of the evidence after you collected it?

Questions for Evidence Technician Was the evidence received sealed? If it wasn’t, did you sealed it ? Did you document your actions? Did the evidence have the proper chain of custody documentation? Is there any question that the evidence was not preserved properly? (lengthy possession by person transporting the evidence). If there is a question, did you document your follow-up actions?

Questions in Court for the analyst (you are handed a piece of evidence). Is this the evidence you analyzed? How do you know that it is? While the evidence was in your custody, did you preserve it properly? How can you be sure no one else tampered with your evidence? If this item was reanalyzed today by another laboratory, would they obtain the same result as you?

Poor Chain of custody and poor preservation procedures can cause other problems Quality control retest of item results in inconsistent results Defense testing shows NO RESULTS and then argues that the analyst didn’t analyze the same item. Post conviction testing results in different results….subject released from jail.

Proper Chain of Custody System must have: Written procedures Appropriate supplies Proper Training Appropriate facilities Feedback system Method to improve system

Proper Chain of Custory Procedures must include: Proper collection procedures Marking of evidence or packaging SEAL package properly Record of everyone one who has possession Preserve and secure evidence Internal Chain of Custody documentation followed after testing and reports written.

Crime scene Package Mark Seal Chain transport Sealed Preservation Security Additional notes Laboratory Sealed?

Testing Unit Sealed? Chain Preservation Security Analyst Additional notes Analysis in process

Testing Unit Evidence room Chain Seal Preservation Security transport Sealed? Additional notes Court Sealed

How to Improve Evidence Handling System More comprehensive written procedures to include evidence handling, sealing, and preservation procedures Training on proper evidence handling and preservation procedures – to all personnel involved in evidence handling Standardize evidence collection supplies Audits/accreditation