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Objection to the Fungible Evidence

So you’re about to introduce the murder weapon and the defense attorney objects to chain of custody.

So you’re about to introduce the contract which is the crux of your case and the judge says you need to establish the chain of custody first.

So you’re about to introduce….

This could go on and on. Whenever an attorney tries to introduce a tangible object into evidence, they always have a creeping feeling in the back of their head that opposing counsel is going to object to chain of custody. Why is that? Well, most likely it is because that objection comes up often, whether it is correct or not. But it also happens because it is a common sense issue, just like many evidence rules. Before a jury gets a piece of evidence, we want to make sure it is what it claims to be and has not been tampered with.

Keep these two points in mind when thinking about chain of custody: is the object what it claims to be and/or has it been tampered with.

Whenever introducing tangible evidence, you need to make sure it is authentic. Whether it is a contract, a knife, or drugs, a witness has to have knowledge to be able to say, “Yes, that is the contract.” But why can’t a witness just testify that “yes, that is the blood I tested and it was the defendant’s.” Or, “yes, that is the marijuana I tested and it is positive.” Because of fungibility.


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 crack rocks? 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.

chain of custody fungible
Chain of Custody

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.

Chain of custody

Ok, so the judge has determined that the tangible evidence is fungible (either not unique or an analysis was done to the evidence) and now you have to prove the chain of custody. Look to this case from the S.C. Supreme Court for guidance:

“[T]his Court has long held that a party offering into evidence fungible items such as drugs or blood samples must establish a complete chain of custody as far as practicable.” State v. Sweet, 374 S.C. 1, 6, 647 S.E.2d 202, 205 (2007); see also Benton v. Pellum, 232 S.C. 26, 33, 100 S.E.2d 534, 537 (1957) (stating “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”).

“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.” Benton, 232 S.C. at 33–34, 100 S.E.2d at 537 (citation omitted).

“Testimony from each custodian of fungible evidence, however, is not a prerequisite to establishing a chain of custody sufficient for admissibility.” Sweet, 374 S.C. at 7, 647 S.E.2d at 206 (citing State v. Taylor, 360 S.C. 18, 27, 598 S.E.2d 735, 739 (Ct.App.2004)). “Where other evidence establishes the identity of those who have handled the evidence and reasonably demonstrates the manner of handling of the evidence, our courts have been willing to fill gaps in the chain of custody due to an absent witness.” Id.

“Proof of chain of custody need not negate all possibility of tampering so long as the chain of possession is complete.” State v. Carter, 344 S.C. 419, 424, 544 S.E.2d 835, 837 (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 [substance] was not established at least as far as practicable.” Id. (emphasis added).

State v. Hatcher, 392 S.C. 86, 91–92, 708 S.E.2d 750, 753 (2011)

One last thing

Don’t forget Crim. Rule 6: the State doesn’t have to bring the chemist for a drug case unless the defense objects (in a nutshell).

What if someone objects to chain of custody for a contract or surveillance video? Go to Evidence Rule 1001.


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