The Identification of Original Real Evidence

• Author: By Captain Edward J. Imumkelned
• Pages: 04

(T)hese erhibits were identifled M the contai%er of the illegally sold narcotics by long and tortuwus test-imony,. . ., I. INTRODUCTION

A trial practitioner must be both artist and logician. As artist, he must be creative and imaginative; he cannot permit his re-sourcefulness to be limited by the traditional methods of proof. As logician, he must be sensitive to all rational inferences his evidence will support. In this light, the counsel's use of circumstantial evidence is an important measure of his skill as a trial practitioner. When the counsel cannot invoke an accepted method of proof, he must resort to an innovative, circumiitantial method: and he must fashion that method out of the rational inferences from his circumstantial evidence. The authentication of real evidence illustrates the challenge facing the trial practitioner.

The common law has always had a healthy tradition of skepticism. The common law refuses to accept proffered evidence at face value; it challenges the proponent to prove that the item is what it purports to be or he claims that it The common law will not ascribe any logical relevance to an item of evidence until it8 proponent authenticates the item. "Authentication" is simply the generic term for the pro~ess of proving that an item of evi- ~ * The opinmns and Conduiiont presented herein aye those of the author and do not neeerss~ily represent the WWQ af The Judge Advocate Generapa School or any ather governmental agency.

** JAGC, US Army; Initructar, Criminal Law Division, TJAGSA.B.A. 1867, J.D. 1968, University of Sa" Frsneiaeo; member of the Barr af California and the U.S. Court of Mllitery Appeals.

United States V. Ailoceo, 234 F.2d 865, 866 (Zd Cir. 1966). Cart. denied, 362 U.S. Sal (1966). reh. denzed. 362 U.S. 890 (1966).

2 C. MCCORMICK, HANDBOOX

OF THE LAW OF EYIDEXCE

1974).

5 218 (2d ed.

dence is xhat it? proponent ciaims that It ma The authentication of real, physical evidence IS usually styled the identification of the evidence.'

This aiticle focuses an the identification of original, real evi-dence. Original. real eridence 1s physical evidence directly connected with the incident or transaction in question. Some texts se the terms ''real'' and "demonstrative" evidence interchange-bly .' but this article uses the phrase "demonstratire widence" in the narron sense of evidence admitted for solely illustrative purp0sea.s

The importance of original, real evidence cannot be overemphaelzed. A recent study by Dr. Brian Parker of the Vniversity of California at Berkeley indicates that 8Src of the crime scenes policemen visit could yield valuable real evidence.' In pomssory offense prosecutions, the identity of the item the accused iva3 found in possession of is a critical element of proof: the pmsecutim must identify the item a8 contraband or Stolen property. In cases where the accused is charged with DWI (driving while Intoxicated). the single most important item of evidence is ordlnarily a blood sample extracted from the accused; and the judge xili not permit the prosecution to introduce the results of the sample's blood alcohol concentration analysis until the prosecution has identified the sample analyzed as the sample extracted from the accused. In any prosecution where the perpetrator'@ identity 1s in issue. real evidence found in the accused's possession may help to connect him with the offense and thereby prove that he was the perpetrator.

The frequency of use of real evidence underscores its importance, but the experienced trial practitioner knows that there is another reason why he must master the techniques of identifying real evidence. A trial 13 a psychological contest.i Both counsei strive to use the types of evidence which a111have the most dramatic impact upon the court members or lurors. Xelvin Belli,

3 Id4 25 Am Sur 2d Eiidrnce I .74 (15671 L c. >LCCORIICI[, HA~DBOUY

OF THE LAW OF EIlDENCE 5 212 l2d ed

R Corrmenr, Drmonstrottie Evrdmee in Iowa. 10 DRIYE L J 41 n 1 1 B Par*er, P i y m a f ELidoner Ctiliiotian in the Admmiatrufzon of ~ ~ ~ ~ ~ , ~ ~ i

1572).

(19601.

J , ~ s t , ~ e .

Unl,ers)fy of Calforn!s at Berkeley 115721. Dr Parker and hl% a~ioclatei studled B total a i 750 calei wulthln the lurirdietion of the Berkeley Pol ce Department. The Ait 0 , Juiu Pms~aizon, 40 A B A J 4% (18511

8 Hinrhau. Csr and Abuse oi Dimanstratiis Etrdmce

REAL EVIDEXCE

a practitioner well versed in the use of real evidence, has opined that like Liza Doolittle, jurors often want to exclaim: "Words, words, words - I'm so sick of words. Is that all yor can do? Show me."B However whimsically the importance of real evidence may be expressed, it is clear that real eridence can have a significant, and often decisive, impact upon a trial's outcome.

In light of the importance of real evidence, it is both surprising and disappointing to note that little has been written on the subject of the identification of real evidence. The textwriters give the subject summary treatment: and while many commentators have dealt with the use of demonstrative evidence," few have addressed the threshold question of the identification of real evidence.12

This article analyzes that neglected, threshold question. The first part of the article lists the more important methods of identifying real evidence. The second part of the article discusses related evidentiary problems. The conclusion sets forth a practical technique which counsel can employ to ensure the admission of their real evidence.

11. THE METHODS OF IDENTIFYING ORIGIXAL, REAL EVIDENCE A. PROOF THAT THE ITEM IS "READILY IDE.VTIFIABLE2 The simplest method of identifying real evidence ili by proving

that it is a readily identifiable item which the witness recognizes.'l

This method involre~ the use of direct evidence The inwe is the item's Identity, and the witness testifies that he recognizes the item as the article in question. A line of questioning using this method can be very brief." First, the proponent asks the nitness whether he can recognize the Item. Then the proponent asks the witness to specify the physical characteristics the witness is re-lying upon to identify the item.

1. Categories of "Reedile IdeiziiAabls" itemsThe courts hare treated four categories of items as readily

identifiable.

The first category includes serially numbered items. If an item is seriall~numbered. it is a one-of-a-kind item. It is readilr identifiable in an absolute sense Probably the best example of such an item IS a serially numbered pistol The identification af such a pistol is a simple process. The proponent hands the pistol to the witness and asks nhether the witness can identifs the item. If the witness responds that he can identify the item, the proponent inquires how the witness can identify the pistol. If the witness testifies that he remembers the serial number, the identification

1s complete: and the pistol has been authenticated.

The second category includes items with distinctive natural markings or characteristics. The courts have categorized the falIowmg items as readily identifiable: a "very unusual looking hat," lo a cain of unu~ual thinness,': a ball and socket assembly with a distinctive abrasion," a pecuiiarly twisted and battered bullet,In and an automobile transmission with special marks.l0 Perhaps the most interesting case in this category is Cnited States u. Briddle." In Briddle, the prosecution attempted ta introduce a button to help identify the accused as the perpetrator of the offense. The Goiernment conceded that it could not establish a cham of the button's custody. The trial court treated the button

___

-* .An item of evidence 19 directly ieleiant if :he immediate inference from the item 13 the existence or non-existence of B material iact. li the material fact ~n querfm is an article'; identic?, a aifneii' tentimans that he can identify the article 13 dried evidence.

I6 K S Dept of Army. Pamphlet 27-10. Milifari durnce Handbook The Trial Counsel and the Deienie Caunael, App. VIIIBj1. (August 19691.

United Sister v Reed, 382 F.2d 865, 867 (7rh Clr 19681, ~ ( 7 , .

___

-* .An item of evidence 19 directly ieleiant if :he immediate infei from the item 13 the existence or non-existence of B material iact. ll material fact ~n querfm is an article'; identic?, a aifneii' tentimans he can identify the article 13 dried evidence.

I6 K S Dept of Army. Pamphlet 27-10. Milifari durnce Handbook Trial Counsel and the Deienie Caunael, App. VIIIBj1. (August 19691

United Sister v Reed, 382 F.2d 865, 867 (7rh Clr 19681, ~ ( 7 , .

de

Ur.led States. 361 F2d 615 (loti Car 1966) Bierschenx. 333 F2d 121 (8:h Cn 1964).haslei., 334 hlo. 352. 67 S K 2 d $4 11933)uguabne. 1 Or. Ipp. 372. 462 P2d 693 (1969).'13 iefh Cir 19721, oert dmicd, 404 U.S 942 11811).

Ur.led States. 361 F2d 615 (loti Car 1966) Bierschenx. 333 F2d 121 (8:h Cn 1964).haslei., 334 hlo. 352. 67 S K 2 d $4 11933)uguabne. 1 Or. Ipp. 372. 462 P2d 693 (1969).'13 iefh Cir 19721, oert dmicd, 404 U.S 942 11811).

.*nee

' the that

The nard,

denied,

as readily identifiable: the court admitted the button on the basis of a witness' direct testimony that he recognized the button. The button in question was a split, leather, dark brown button with a picture of B whale on the front and a sticky substance an the back. The Court of Appeals upheld the button's admission, The Court pointed aut that the trial judge may dispense with proof of a chain of custody if the item 1s readily identifiable. The Court held that "the uniqueness of the button" justified the trial judge's admission of the button.22 If the witness identifies the item on the basis of the item's natural distinctive features, the authentication

1s sufficient.

The third category includes items on which witnesses have made distinctive markings. There i8 substantial authority for the proposition that even if m article's natural features would not qualify it as a readily identifiable item, a witness can convert it into a readily...