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Chain of Custody and Authentication
Chain of custody is a form authentication. Two questions often arise with chain issues: is the object what it claims to be and has it been tampered with? Fungible evidence essentially means that the evidence is easily replicated or not possessing unique characteristics that one can easily determine. For example, how does someone tell the difference between two identical blood droplets? How do you tell the difference between two baggies containing narcotics? Without further testing, it is hard to establish that one blood droplet is different from the other, and thus there is a greater risk that they could be mixed up. Also, remember to ask why the evidence is being introduced and what the testimony is regarding the evidence. For example, a lay witness may be able to properly authenticate a bloody t-shirt as the one that the victim was wearing. But an expert witness would need to prove the chain of custody to testify as to any analysis done on the blood.
A chain of custody needs to be established as far as practicable. It will depend on the individual case, but not every single person associated with the item has to be identified and testify – this is case specific. “The trial judge's exercise of discretion must be reviewed in the light of the following factors: ‘... the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it.’ Id. ‘If upon the consideration of such factors the trial judge is satisfied that in reasonable probability the article has not been changed in important respects, he may permit its introduction in evidence.” (citation omitted). · State v. Hatcher, 392 S.C. 86 (2011)
The goal of chain of custody is to authenticate the item and make sure it is what it claims to be. The chain of custody requirement may be more or less strict depending if the item is fungible or not fungible. “Because the challenged evidence in this case is not fungible, unlike the cocaine in Melendez–Diaz or the blood sample in Bullcoming, here strict chains of custody are not required for admission into evidence.” · State v. Brockmeyer, 406 S.C. 324 (2013)
Evidence that is unique and identifiable – non-fungible – does not require a strict chain of custody as compared to a fungible item, which cannot be easily identified. Non-fungible evidence will usually have fairly unique and readily identifiable characteristics and be relatively impervious to change. · State v. Freiburger, 366 S.C. 125 (2005)
· State v. Williams, 297 S.C. 290 (1989) “Proof of chain of custody need not negate all possibility of tampering but must establish a complete chain of evidence as far as practicable.”
· Benton v. Pellum, 232 S.C. 26 (1957) “While proof need not negative all possibility of tampering, … it is generally held that the party offering such specimen is required to establish, at least as far as practicable, a complete chain of evidence, tracing possession from the time the specimen is taken from the human body to the final custodian by whom it is analyzed. As stated in Rodgers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257, 260, ‘Where the substance analyzed has passed through several hands the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis.’”
· State v. Kahan, 268 S.C. 240 (1977) A proper chain was established even though there was no testimony as to the proper handling and care of the item in question. The lack of testimony would go to credibility – not admissibility.
· State v. Taylor, 360 S.C. 18 (Ct. App. 2004) Evidence is inadmissible where the identity of persons in the chain of custody who handled the item are unknown. However, if there is evidence that establishes the identity of the persons who handled the item and how it was handled, then the weakness in the chain should go to credibility not admissibility. “We believe it is clear from these decisions that if the identity of each person in the chain handling the evidence is established, and the manner of handling is reasonably demonstrated, no abuse of discretion is shown in the admission, absent proof of tampering, bad faith, or ill-motive.”
· State v. Cribb, 310 S.C. 518 (1992) A proper and admissible chain of custody must identify every person who has sealed, labeled, and transported the blood sample. Trial court improperly admitted a blood sample where the chain did not identify all persons who handled the blood sample. But see State v. Carter, 344 S.C. 419 (2001) (“In applying this rule, we have found evidence inadmissible only where there is a missing link in the chain of possession because the identity of those who handled the blood was not established at least as far as practicable. See State v. Cribb … On the other hand, where the identity of persons handling the specimen is established, we have found evidence regarding its care goes only to the weight of the specimen as credible evidence. See, e.g., State v. Smith, supra (storage of blood in arresting officer's home). In other words, where there is a weak link in the chain of custody, as opposed to a missing link, the question is only one of credibility and not admissibility.”).
· State v. Smith, 326 S.C. 39 (1997) A chain of custody for a blood draw must be complete from the time of draw until its testing. This chain of custody does not have to negate all possibility of tampering, but needs to establish the chain as far as practicable. In this case, all persons who handled the blood sample testified at trial. A trooper, who handled the blood, stored it in his refrigerator. The South Carolina Supreme Court upheld the admission of the blood sample because the storage of the blood sample in the trooper’s refrigerator went to its weight not admissibility. See also State v. Trapp, 420 S.C. 217 (2017) (An analyzed substance requires that every person who handled the substance be identified and how they handled the item. The trial court may admit the analyzed substance if all persons in the chain are identified, the manner in which they handled it are reasonably demonstrated, and there is no proof of tampering or bad faith.).