§ 26.02 Real Evidence

• Jurisdiction: United States

§ 26.02 Real Evidence

There are two principal methods of identifying real evidence: (1) establishing that the evidence is "readily identifiable" and (2) establishing a "chain of custody."² These methods are discussed below.

[A] Condition of Object

Sometimes more than mere identification is involved, however. The condition of an object may also be important. In such cases, the offering party must show that the object has retained its relevant evidentiary characteristics. Alteration of the item may reduce or negate its probative value and may mislead the jury. Thus, before physical objects are admitted at trial, the offering party must establish that they are in "substantially the same condition" as at the time of the crime or accident.³

Determining what changes are "substantial" depends on how the changes affect the relevance of the evidence.⁴ For example, in State v. Wilkins,⁵ a rape victim identified pants that she had worn at the time of the rape; the pants were admissible even though they had been laundered, for the evidentiary value had not been affected.

[B] Readily Identifiable Objects: FRE 901(b)(4)

If an item of evidence is readily identifiable, the offering party may not need to establish a chain of custody. Rule 901(b)(4) provides for the identification of evidence with "distinctive characteristics."⁶ Items imprinted with serial numbers,⁷ inscribed with a police officer's initials,⁸ or possessing other distinctive aspects⁹ may be authenticated in this manner. The item does not have to be positively identified to gain admission into evidence.¹⁰

[C] Chain of Custody: FRE 901(b)(1)

Real evidence may also be identified by means of a chain of custody.¹¹ As noted above, establishing a chain of custody is but one way of identifying real evidence. Nevertheless, a chain of custody may be required under certain circumstances. First, a chain of custody is often mandatory for fungible evidence because these items have no unique characteristics.¹² However, the proper handling of fungible evidence—e.g., using locksealed envelopes or containers that custodians then mark and initial—makes the evidence readily identifiable and eliminates most problems of misidentification and contamination.¹³

Second, if the relevance of an exhibit depends on laboratory analysis, identification by police markings made at the scene does not provide a sufficient foundation. The markings establish that the exhibit in court was the item seized by the police, but a chain of custody may be necessary to establish that the item seized was the one analyzed at the crime laboratory.¹⁴

Third, if the condition of the object, not merely its identity, is the relevant issue, a chain of custody may be required to establish that the object had not been altered during police custody. For example, contamination is a problem with DNA evidence.¹⁵

[1] Length of Chain of Custody

The "length" of the chain of custody depends on the purpose for which the evidence is offered. This point is illustrated by State v. Conley,¹⁶ which involved a prosecution for the illegal sale of LSD. The accused purchased the drugs with marked bills whose serial numbers had been recorded. The defendant objected to the admissibility of both the bills and the LSD. The court wrote:

To identify a particular item as being part of a pertinent incident in the past usually requires the showing of a continuous chain of custodians up to the material moment. When a chemical analysis is involved the material moment is the moment of analysis, since this provides the basis for the expert testimony and makes that testimony relevant to the case. In the case of many other items, the material moment occurs at the trial.¹⁷

The court went on to hold that the chain of custody for the marked bills ran from the time the bills were marked until the trial, at which time they were identified. The chain of custody for the drugs differed; it ran from the time of seizure to the time of chemical analysis.

As a matter of relevancy, this approach is sound. The loss or destruction of drugs after chemical analysis would not affect the relevance of the expert's testimony concerning the nature of the drugs.¹⁸ Moreover, the prosecution generally is not required to introduce real evidence to prove its case.¹⁹ Even when evidence is available, it need not be physically offered. "Thus, the grand larceny of an automobile may be established merely on competent testimony describing the stolen vehicle without actually producing the automobile before the trier of fact."²⁰

Nevertheless, the loss or destruction of the evidence after laboratory analysis may affect a defendant's right to reexamine the evidence, and could result in the exclusion of expert testimony based on the prior laboratory examination.²¹

[2] Links in Chain of Custody

The "links" in the chain of custody are t hose persons who had physical custody of the object. Persons who had access to the evidence but not possession of it are not links.²² A few courts have indicated that all the links in the chain of custody must testify at trial.²³ Most courts, however, hold that "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."²⁴ Thus, while a custodian in the chain of possession need not testify under all circumstances, the evidence should be accounted for during the time it was under that custodian's control.²⁵ Failure to adequately account for the evidence during a custodian's possession may constitute a critical break in the chain of custody.²⁶

Postal employees who handle evidence sent to a crime laboratory by mail are custodial links. They rarely, if ever, testify at trial, however. A rule requiring every custodian to testify would necessitate calling all postal employees who handled the evidence and "place an impossible burden upon the state."²⁷ Controlled drug buys are similar.²⁸Another category of cases involves what may be called "minor links"—intermediate custodians who had possession for a short period of time and merely passed the evidence along to another link. This category includes not only laboratory personnel, but police personnel who receive evidence from a seizing officer and then mail or transport it to a laboratory for analysis.²⁹ In short, "accounting for" all the links in the chain of custody does not necessarily require that all links testify at trial.

[D] Standard of Proof

The burden of proving the identity of real evidence rests with the party...