Reasonable Suspicion - Alphabetized by 1st defendant’s last name:
Search & Seizure
None of the SCOTUS confrontation clause cases address chain of custody. The truth of the content of the laboratory report depends on the results with respect to what was actually tested, not how the item that was tested got to the laboratory. If a mistake was made with respect to what was actually tested due to problems with handling the evidence before it got to the laboratory, that is not a matter within the knowledge of the laboratory analyst.
Of course it would be unreasonable for an expert opinion to be based upon a sample whether the chain of custody is so weak that a reasonable expert would not rely it for the purpose of saying what sample is actually being tested. However, the laboratory expert will have no idea how the sample was handled before someone in the lab signed it out for analysis.
For this reason, I believe the chain of custody statutes are separate from the confrontation clause issue. They are a legislatively created definition of the prima facie evidence sufficient to establish the chain of custody with respect to a motion to exclude or to dismiss. Because chain of custody goes to the weight and not the admissibility of the evidence before it is actually tested by the analyst, and because the chain of custody is not an element of a crime, the legislature can define the prima facie evidence to show chain of custody.
The statute merely states that if the requirements are followed the evidence is admissible. It says nothing about the weight to be given the evidence, which would be improper in a criminal proceeding. It says that because certain unobjected to and therefore uncontradicted evidence is presented concerning the chain of custody, the fact finder may (but is not required) to presume the sample analyzed by the analyst is the sample collected by the police.
If an objection is filed, the statute requires presentation of sufficient evidence from which a fact finder could find the chain of custody is established. The rules of evidence with respect to authentication and hearsay will often allow the person in control of the evidence room to establish procedure the movement of the evidence to and from the property room, while that person's familiarity with the signatures of the persons signing the evidence out will probably establish that an analyst indeed signed the evidence out for analysis. The officer who obtained the sample will generally testify he saw the sample drawn and that he transported it to the property room. In the typical case, that is going to be sufficient. In more complicated cases the chain of custody was, and continues to be fair game.
Assistant Public Defenderas clarke dummitt says:
As Clark Dummitt says:
I learned a great deal from Dean's post (as usual); and I am always very hesitant to ever disagree with Dean (it probably shows my ignorance on this occasion). While I agree with Dean that the Supreme Court has specifically dodged the confrontation issue on chain of custody so far, I do believe it is still the correct constitutional argument, (although probably the third argument, after relevance and a statutory challenge) and not necessary the best way of fighting Chain of Custody.
Regardless of 6th amendment issues, never let the State get away with the statement that "chain of custody goes to the weight and not the admissibility of the evidence." That is a flat out misrepresentation by the prosecutor's handbook of the three cases which it sites. Read St. v. Grier, 300 S.E.2d 351 (1983), St. v. Bailey, 334 S.E.2d 266 (1985), and St. v. Frye, 341 N.C. 470 (1995). In each of those cases which prosecutors misquote there was a weak link, and not a missing link. A weak link goes to weight, but a missing link goes to admissibility. If the State does not have a Chain of Custody witness there is ipso facto a missing link, not a weak link.
Clearly you need to have a copy of State v. Ortiz-Zape, ___ N.C. ___, (2013), and State v. Brewington, ___ N.C. ___, (2013), and be familiar with these but they deal more with confrontation limited to a reviewing expert and not the testing expert, the Chain of Custody issue is more basic.
As the Court held in Melendez-Diaz, "The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." As such, the State is required to produce the chemical analyst to appear at trial but, as Dean so ably points out, the Court did not address how chain of custody is to be proven. However the legislature, in response to the Melendez-Diaz decision, amended N.C.G.S. 20-139.1 by adding (c3) which directly addresses how the State must prove chain of custody. I argue to the court that the Supremes had a clear chance to spout some dicta to close this door, but deliberately choose not to, because it is not a closed issue. If the Supremes thought it was even a close call, they would have leaned towards giving the State the benefit of the doubt to "further the important interests of the State" or some such nonsense.
But even prior to getting to the constitution or the statute, first reeducate the judge about relevance. The Court spelled out in State v. Campbell that the item offered must be identified as being the same object involved in the incident and it must be shown that the object has undergone no material change. "A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered." Both are the case with Blood.
Blood evidence is not evidence that is readily identifiable; one person's red blood looks identical to another person's red blood. To the ordinary observer, without the benefit of sophisticated scientific equipment and specialized training, all blood appears essentially the same and one such sample is indistinguishable from another. Because blood is not readily identifiable, the State must establish a detailed chain of custody regarding the blood sample to be offered into evidence before it can be relevant to the case.
On the second prong the State will typically argue that "there is [no] reason to believe that it may have been altered," however any judge should know, and any basic biology text book will confirm, blood is a biological material that breaks down over time. A blood sample is susceptible to alteration even if properly stored, but especially if not properly handled in the chain, as the sample can degrade skewing any potential test results (this of course is more complex to get the science in front of a Judge, but it is hard for a prosecutor to say with a straight face that blood is not biologic and doesn't break down, and if they do, call them on it). If the State cannot properly establish an unbroken chain of custody then, by its very biologic nature, reason exists to believe that the blood sample, as originally drawn, exists now in an altered state. Blood changes over time, and scientifically the State must show that the blood as tested is relevant to the blood as drawn, to make it relevant to the guilt or innocence.
On the statutory issue: Post Melendez-Diaz the legislature amended the laws so that the Defense must now give the State notice of motions to suppress prior to trial, objecting to the proper foundation is not a motion to suppress. The Defendant is not required to file any motion pretrial to point out to the State the weaknesses in their case; nor to advise the prosecutor on how to call witnesses nor how to litigate their case to get proposed evidence properly admitted at trial.
To be admissible into evidence, the State must lay a foundation for the evidence and introduce testimony sufficient to support a finding that the thing sought to be admitted is in fact what its proponent claims. N.C.G.S. §8C-1, Rule 901(a). This requirement of authentication or identification is a condition precedent to the admissibility of evidence.
According to N.C.G.S. 20-139.1 (c3), the State may only use properly signed documents to prove chain of custody if the State notified the Defendant at least 15 business days prior to the proceeding of its intent to use the document and the Defendant does not file notice of objection at least 5 days prior to trial. The Statute, in pertinent part, reads:
(c3) Procedure for Establishing Chain of Custody Without Calling Unnecessary Witnesses.
(1) For the purpose of establishing the chain of physical custody or control of blood or urine tested or analyzed to determine whether it contains alcohol, a controlled substance or its metabolite, or any impairing substance, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement.
(2) The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received. The statement may be placed on the same document as the report provided for in subsection (c1) of this section.
(3) The provisions of this subsection may be utilized in any administrative hearing, but can only be utilized in cases tried in the district and superior court divisions, or in an adjudicatory hearing in juvenile court, if:
a. The State notifies the defendant at least 15 business days before the proceeding at which the statement would be used of its intention to introduce the statement into evidence under this subsection and provides a copy of the statement to the defendant, and
b. The defendant fails to file a written notification with the court, with a copy to the State, at least five business days before the proceeding at which the statement would be used that the defendant objects to the introduction of the statement into evidence.
If the defendant's attorney of record, or the defendant if that person has no attorney, fails to file a written objection as provided in this subsection, then the statement shall be admitted into evidence without the necessity of a personal appearance by the person signing the statement. Upon filing a timely objection, the admissibility of the report shall be determined and governed by the appropriate rules of evidence.
(4) Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the statement.
So long as the Defendant has properly lodged an objection to the introduction of the statements into evidence the State must be able to provide live testimony from each successive person in the chain of custody regarding the blood sample to be introduced as the State cannot provide affidavit's in lieu of sworn testimony over the objection of the Defendant by statute (still undecided by the Supremes as Dean points out).
Failure to establish the proper foundation for evidence by an unbroken chain of custody renders the evidence inadmissible. In State v. Mason, the appellate Court found the trial testimony, regarding a video tape offered by the State, was insufficient to establish either a proper foundation for accepting the tape into evidence or to establish an unbroken chain of custody. 550 S.E.2d, 15-16 10 (2001). The Court based its findings on the basis that no testimony was presented from any witness who handled the tape. Id. If the State fails to establish a proper foundation for unbroken chain of custody by failure to provide live testimony, the blood evidence is inadmissible.
State's Typical Argument:
The State will traditionally argue that a missing Chain of Custody goes to the weight of the evidence and not to its admissibility. The State typically, inappropriately, sites State v. Grier, 300 S.E.2d 351 (1983), State v. Bailey, 334 S.E.2d 266 (1985); and State v. Frye, 341 N.C. 470 (1995). None of these cases hold that a missing link in the chain of custody goes to weight rather than admissibility.
In State v. Grier, 300 S.E.2d 351 (1983) the defense argued that even though the Doctor was present when the blood was drawn, and testified at trial, her testimony was not enough to establish Chain of Custody because the actual person who drew the blood did not testify. The Court ruled that: "Dr. Rita Kay Williams examined the victim shortly after the rape on 22 September 1981. She testified that although she did not actually see the blood drawn from Mrs. Lee, she signed a blood sample that was supposedly taken from the victim by a laboratory technician either immediately before or after the examination. The technician who drew the blood did not testify."
Thus the Court correctly ruled that while there was a weakness in the Chain, there was not a missing link, the State had adequately shown the link, and the weakness went to weight not admissibility it since she was the supervising doctor, and was present, and testified, to establish the chain of custody.
In State v. Bailey, 334 S.E.2d 266 (1985) the defense argued that the State had not proven that ALL possible flaws in the procedures had been eliminated. It was a specious argument that had nothing to do with Chain of Custody: "As to the reliability of the specimen for testing, defendant argues that the State failed to produce evidence that the specimen was not contaminated by testing or by procedures in obtaining the specimen, such as the use of an alcohol swab on defendant's arm or sterilization of the sampling apparatus in alcohol. There was no evidence elicited on direct or cross-examination of the technologist [note: the person testified, but was not asked questions about the procedures] as to the procedures employed in drawing the specimen, or whether any tests were, in fact, performed on it at the Onslow Memorial Hospital laboratory. The State is not required to negate every possible flaw in the testing procedure in order for the results of the chemical analysis to be admissible, it is only required that the State show compliance with the provisions of G.S. 20-139.1. In this case, through its evidence and the defendant's stipulation, the State met its burden of proving compliance with the statute so as to render the evidence admissible. Defendant's argument that the State has failed to show the nonexistence of flaws in the procedures more properly relates to the weight to be given the evidence by the jury, rather than its admissibility."
In State v. Frye, 341 N.C. 470 (1995):" Defendant objected to the portion of Elwell's testimony that relied on Exhibit 22 and to the exhibit's admission into evidence on the sole ground that "there was no testimony from anyone as to who drew that blood or when it was drawn or, in fact, that it was drawn from Mr. Ralph Childress."
As to the ground for objection properly preserved, this Court has stated that the person who draws a blood sample need not always testify to establish a proper foundation for the admission of the sample. State v. Grier, 307 N.C. 628, 632-33, 300 S.E.2d 351, 353-54 (1983). In Grier, the first link of the chain of custody was sufficiently proven because a doctor who had examined a rape victim "testified that although she did not actually see the blood drawn from [the victim], she signed a blood sample that was supposedly taken from the victim by a laboratory technician either immediately before or after the examination. The technician who drew the blood did not testify." Id. at 632, 300 S.E.2d at 353. We concluded that "[a]ny weakness in the chain of custody relate[d] only to the weight"
All three of the cases which the State typically argues are NOT cases where there are missing links, but merely weak links. These cases in fact affirm the rule of law that the State must prove chain of custody, and if they do not then lay the proper foundation then the evidence is not admissible. In fact State v. Bailey, 334 S.E.2d 266 (1985) affirms the argument that the State must comply with "the provisions of G.S. 20-139.1..." in proving chain of custody, and the new provisions require each person in the chain to sign the statement that the blood was receive and passed on without being altered or contaminated, but only allows these signed statements if the Defendant does not file an objection in writing. As long as you properly objected, then the State must call the witnesses and prove the Chain and allow 6th amendment confrontation.
So yes, I think the 6th amendment is still alive and well in "missing links" in Chain of Custody, but more than that, the legislature gave us a great framework in N.C.G.S. 20-139.1 (c3), and basic "relevance" is still a fundamental hurtle for the State before they can even get to the statutory, and then the constitutional issues.
While I am a practical litigator, and I recognize that in District Court so many judges will not listen, I think it is our obligation to bludgeon judges and DAs with the law in very case regardless of the futility. Slowly, after hearing it enough, you will start to make progress, or at least you will punish the Judges who will not follow the law by making them miss their golf game. Educate your Judges, don't leave it to the Institute of Government and the prosecutors.