Evidence: Chain of Custody

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During trial, pursuant to the rules of evidence, only relevant evidence a be admitted.  However, as a general rule, all evidence is relevant.  This can prove to be difficult, especially in criminal cases, when time or human error become involved.  Such issues fall under what is referred to as the chain of custody.  Chain of custody refers to the timeline of events between when a particular piece of evidence was collected and when it is presented in court.  It is a procedural safeguard against the admission of evidence in relation to an alleged incident, regardless of its relevancy.

Chain of custody issues do not apply to every piece of evidence.  Establishing a proper chain of custody is only required for fungible evidence.  Put simply, fungible evidence is evidence that has the capability of mutation, substitution, or degradation.  For example, drugs and blood have been considered to be fungible evidence.  A crack pipe, however, is “a distinct and recognizable physical object,” and therefore, can be admissible without a proper showing of the chain of custody.[1]  To reiterate, the purpose of establishing a proper chain of custody is to show that the evidence being offered at trial is the same evidence that was originally seized.

In order to admit fungible evidence in criminal cases, the prosecuting attorney must show with “reasonable certainty that the evidence offered is the same that was seized and that there has been no tampering or substitution” of the proffered evidence.[2]  (Emphasis added).  This usually requires testimony from each person that had custody of the item prior to presenting it as evidence in a criminal trial.  Failure to show a proper chain of custody could result in the prosecuting attorney being unable to admit a particular piece of evidence.   Even still, the trial judge has discretion in its admissibility.

In establishing the chain of custody, the prosecuting attorney does not need to negate all possibilities of tampering.  Instead, as the Georgia Court of Appeals has stated, “when there is doubt as to whether a particular piece of evidence has been tampered with, all doubt must go to the weight of the evidence, and mere speculation of tampering will not necessarily break the chain of custody”[3] and a such issue is a matter for the jury.[4]   Logically, it can also be expected that in showing a chain of custody, all parties that handled said evidence should be required to testify, however, as the Georgia Supreme Court has stated, this is not a requirement placed on the prosecuting attorney.[5]  Further, in Georgia, final decisions on chain of custody will not be reversed on appeal without a showing that the trial court abused its discretion.[6]

Proper chain of custody does not just include the chronological order of the custody of a particular piece of evidence.  It also encompasses how a particular piece of evidence is collected and stored.  Failure to store items correctly could seriously degrade the substance, and thus lead to a break in the chain of custody.  For example, blood samples obtained in a DUI case can have an improper chain of custody if the blood taken is not stored at the correct temperature.  Each police jurisdiction more than likely has established procedures for the collection, storage, and release of evidence.  Defense attorneys can use these procedures at trial to challenge chain of custody issues.

In addition to the many avenues available in challenging chain of custody issues, a criminal defendant, through his attorney, must object to such issues at the earliest possible time during trial.[7]  Failure to do so will result in the defendant waiving the ability to raise the chain of custody issue on appeal.[8]  For this, and all other reasons, some mentioned in this article, criminal defendants should consult with an attorney during the preparation of their trial.  The experienced attorneys at Bixon Law are knowledgeable in relevant case law and statutes.  Allow us to assist you in your criminal case, and for all of your criminal matters.

[1] Washington v. State, 283 Ga. App. 570 (2007).

[2] Scott v. State, 298 Ga. App. 376 (2009).

[3] Dempsey v. State, 265 Ga. App. 175 (2004).

[4] Ashley v. State, 728 SE. 2d 707, (Ga. App. 2012).

[5] Walker v. State, 294 Ga. 851, 853 (2014)

[6] Cowins v. State, 290 Ga. App. 814,816-17 (2008).

[7] Martin v. State, 281 Ga. 778, 780 (2007)

[8] Martin v. State, 281 Ga. 778, 780 (2007).


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