Chapter 2 - §3. Real evidence

• Jurisdiction: United States

§3. Real evidence

Real evidence—such as weapons, drugs, tools, or ammunition used or involved in the charged crime—is often admitted in a criminal proceeding for various relevant purposes. See "Real evidence," ch. 1, §4.1; "Weapons," ch. 1, §4.4.

§3.1. Foundational requirements. To establish a proper foundation for real evidence, the proponent must authenticate it by establishing that the object is what it purports to be. See People v. Trujillo (1948) 32 Cal.2d 105, 115. For example, if the object is claimed to be the instrument of the crime, the object must be identified as such and sufficiently connected to the crime. See id. To be properly identified at trial, the object must be in substantially the same condition as it was when originally discovered.

1. Witness testimony. If the real evidence is unique and readily identifiable on the basis of distinctive characteristics, a satisfactory foundation can ordinarily be laid by the testimony of a witness who personally saw the real evidence. See, e.g., People v. Burns (1st Dist.1952) 109 Cal.App.2d 524, 538-39 (witness identified victim's clothes found at beach; although witness did not testify that clothes were in same condition as found, D failed to object on that basis). See "Testimony," ch. 2, §1.

2. Chain of custody. If the real evidence is fungible or otherwise susceptible to being altered, substituted, or misplaced, such as evidence that is sent to a lab for scientific analysis or testing (e.g., blood samples, drugs), the real evidence should be authenticated by chain of custody. See, e.g., People v. Hall (2d Dist.2010) 187 Cal.App.4th 282, 296-97 (prosecution properly established chain of custody of blood sample); People v. Jimenez (5th Dist.2008) 165 Cal.App.4th 75, 81 (prosecution did not properly establish chain of custody of DNA sample). Chain of custody is the tracking of evidence from the time it was collected until submission at trial. See Chain of Custody, Black's Law Dictionary (11th ed. 2019). Generally, chain of custody is established through testimony of each individual who had possession of the evidence (i.e., who physically handled the object), along with testimony that the evidence remained in substantially the same condition throughout the individual's possession. See 3 Witkin, California Evidence (5th ed. 2012), Demonstrative Evidence §166. In establishing the chain of custody, the prosecution is not required to negate all possibility of tampering or to provide evidence of every...