Chain of Custody
Duty of the prosecution
• “The State is required to show a chain of custody for the purpose of showing the unlikelihood of tampering, loss, substitution or mistake.”
Vaughn v. State, 13 N.E.3d 873, 882 (Ind. Ct. App. 2014), trans. denied(quoting McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000), trans. denied)
Murrell v. State, 747 N.E.2d 567, 572 (Ind. Ct. App. 2001), reh’g denied, trans. denied(citing McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000), trans. denied)(“The State is required to show a chain of custody in order to demonstrate the unlikelihood of tampering, loss, substitution or mistake.”)
Types of chain of custody: In general
• There are generally two types of chain of custody depending on the nature of the item that is produced in court.
Mateo v. State, 981 N.E.2d 59, 66 (Ind. Ct. App. 2012), trans. denied
Types of chain of custody: Fungible items
• The State bears a higher burden to establish the chain of custody of “fungible” evidence, such as blood and hair samples, whose appearance is indistinguishable to the naked eye.
Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002)(citing Culver v. State, 727 N.E.2d 1062, 1068 (Ind. 2000))
Bussberg v. State, 827 N.E.2d 37, 42 (Ind. Ct. App 2005), reh’g denied, trans. denied(quoting Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002))
See Doty v. State, 730 N.E.2d 175, 178 (Ind. Ct. App. 2000)(citing Robinson v. State, 724 N.E.2d 628, 640 (Ind. Ct. App. 2000), trans. denied)(“When dealing with fungible items, the State has an enhanced burden of demonstrating a sufficient chain of custody.”)
• For fungible items such as blood and drugs, an adequate foundation is laid when the whereabouts of an exhibit is shown from the time it came into the possession of the police.
Mateo v. State, 981 N.E.2d 59, 66 (Ind. Ct. App. 2012), trans. denied(citing Bell v. State, 610 N.E.2d 229, 233 (Ind.1993), reh’g denied)
See Espinoza v. State, 859 N.E.2d 375, 382 (Ind. Ct. App. 2006)(quoting Cockrell v. State, 743 N.E.2d 799, 808 (Ind. Ct. App. 2001))(“‘Under the chain of custody doctrine, an adequate foundation is laid when the continuous whereabouts of an exhibit is shown from the time it came into the possession of the police.’”)
• An adequate foundation establishing a continuous chain of custody is established if the State accounts for the evidence at each stage from its acquisition, to its testing, and to its introduction at trial.
Espinoza v. State, 859 N.E.2d 375, 382 (Ind. Ct. App. 2006)(citing Wrinkles v. State, 690 N.E.2d 1156, 1160 (Ind. 1997), reh’g denied, cert. denied, 525 U.S. 861 (1998))
• To show a chain of custody, the State need only provide a reasonable assurance that the evidence was undisturbed as it passed from the custody of one person to the next.
Vaughn v. State, 13 N.E.3d 873, 882 (Ind. Ct. App. 2014), trans. denied(citing McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000), trans. denied)
See Mateo v. State, 981 N.E.2d 59, 67 (Ind. Ct. App. 2012), trans. denied(citing Bell v. State, 610 N.E.2d 229, 233 (Ind.1993), reh’g denied)(“ The State can lay an adequate foundation by providing a reasonable assurance that the evidence was undisturbed as it passed from the custody of one person to the next.”)
See also Espinoza v. State, 859 N.E.2d 375, 382 (Ind. Ct. App. 2006)(citing Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002))(“To establish a proper chain of custody, the State must give reasonable assurances that the evidence remained in an undisturbed condition.”)
See also Bussberg v. State, 827 N.E.2d 37, 42 (Ind. Ct. App. 2005), reh’g denied, trans. denied(citing Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002))(“The State must give reasonable assurances that the evidence remained in an undisturbed condition to establish a proper chain of custody.”)
• In providing such assurances, the State need not negate every remote possibility of tampering.
Lee v. State, 689 N.E.2d 435, 439 (Ind. 1997), reh’g denied(citing Cliver v. State, 666 N.E.2d 59, 63 (Ind. 1996), reh’g denied)
See Donahoo v. State, 640 N.E.2d 702, 704 (Ind. 1994)(citing Kennedy v. State, 578 N.E.2d 633, 639 (Ind. 1991), cert. denied, 503 U.S. 921 (1992))(“[T]he State is not required to show a perfect chain of evidence that would totally exclude any possibility of tampering . . . .”)
• If the State presents evidence that strongly suggests the exact whereabouts of the evidence at all times, that is sufficient.
Mateo v. State, 981 N.E.2d 59, 67 (Ind. Ct. App. 2012), trans. denied(citing Bell v. State, 610 N.E.2d 229, 233 (Ind.1993), reh’g denied)
Vaughn v. State, 13 N.E.3d 873, 882 (Ind. Ct. App. 2014), trans. denied(citing McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000), trans. denied)
• [T]he State need not establish a perfect chain of custody, and once the State “strongly suggests” the exact whereabouts of the evidence, any gaps go to the weight of the evidence and not to admissibility.
Espinoza v. State, 859 N.E.2d 375, 382 (Ind. Ct. App. 2006)(citing Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002))
See Bussberg v. State, 827 N.E.2d 37, 42 (Ind. Ct. App. 2005), reh’g denied, trans. denied(citing Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002))(“It is not necessary for the State to establish a perfect chain of custody, and once the State strongly suggests the exact whereabouts of the evidence, any gaps go to the weight of the evidence and not its admissibility.”)
See also Speers v. State, 999 N.E.2d 850, 855 (Ind. 2013), cert. denied, 134 S. Ct. 2299 (2014)(quoting Kennedy v. State, 578 N.E.2d 633, 639 (Ind. 1991), cert. denied, 503 U.S. 921 (1992))(“Indeed, ‘the State need not establish a perfect chain of custody, and any gaps go to the weight of the evidence and not its admissibility.’”)
See also Filice v. State, 886 N.E.2d 24, 34 (Ind. Ct. App. 2008), trans. denied(citing Culver v. State, 727 N.E.2d 1062, 1067 (Ind. 2000))(“Because the State need not establish a perfect chain of custody, slight gaps go to the weight, not the admissibility, of the evidence.”)
See also Vaughn v. State, 13 N.E.3d 873, 882 (Ind. Ct. App. 2014), trans. denied(citing McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000), trans. denied)(“Any gaps in the chain of custody go to the weight of the evidence, and not to its admissibility.”)
Types of chain of custody: Nonfungible items
• Non-fungible evidence, such as the ballistics samples, requires a less stringent foundation, because any tampering with the evidence is more likely to be noticed due to the unique character of the evidence.
Wrinkles v. State, 690 N.E.2d 1156, 1160 (Ind. 1997), reh’g denied, cert. denied, 525 U.S. 861 (1998), (citing Hough v. State, 560 N.E.2d 511, 517 (Ind. 1990))
See Shepherd v. State, 690 N.E.2d 318, 324 (Ind. Ct. App. 1997), trans. denied(citing English v. State, 575 N.E.2d 14, 15 (Ind. 1991))(“Although the requirement to show a chain of custody is quite strict concerning fungible goods that are difficult to identify, the rule is less stringent on items that are readily identifiable at any given time.”)
See also Curry v. State, 643 N.E.2d 963, 972 (Ind. Ct. App. 1994), reh’g denied, trans. denied(citing Ives v. State, 418 N.E.2d 220, 225 (Ind. 1981), reh’g denied)(“The rule applies with diminishing strictness as the exhibits concerned become decreasingly susceptible to alteration, tampering or substitution.”)
• [F]or nonfungible items like guns and vehicles, the State need only show that the item is what it is purported to be and that it is in a substantially unchanged state.
Mateo v. State, 981 N.E.2d 59, 67 (Ind. Ct. App. 2012), trans. denied(citing Trotter v. State, 559 N.E.2d 585, 591 (Ind. 1990))
See Scott v. State, 632 N.E.2d 761, 765 n. 2 (Ind. Ct. App. 1994)(citing Trotter v. State, 559 N.E.2d 585, 591 (Ind. 1990))(“While the state has a responsibility to show a proper chain of custody for an exhibit, when an item is non-fungible and readily identifiable it may be admitted based upon the testimony of the witness that it is recognized and in a substantially unchanged state.”)
See also Curry v. State, 643 N.E.2d 963, 972 (Ind. Ct. App. 1994), reh’g denied, trans. denied(citing Henning v. State, 477 N.E.2d 547, 549 (Ind. 1985), reh’g denied)(“If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit it merely upon the basis of testimony that the item is the one in question and is in a substantially unchanged condition.”)
• Because the knives are nonfungible items, the State only needed to show that they were the knives used in the incident and that they were in the same condition at trial as when they were found.
Mateo v. State, 981 N.E.2d 59, 67 (Ind. Ct. App. 2012), trans. denied(citing Trotter v. State, 559 N.E.2d 585, 591 (Ind. 1990))
Challenging the adequacy of the chain of custody
• [T]here is a presumption of regularity in the handling of evidence by officers, and there is a presumption that officers exercise due care in handling their duties.
Bussberg v. State, 827 N.E.2d 37, 42 (Ind. Ct. App 2005), reh’g denied, trans. denied(quoting Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002))
Espinoza v. State, 859 N.E.2d 375, 382 (Ind. Ct. App. 2006)(citing Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002))
See Vaughn v. State, 13 N.E.3d 873, 882 (Ind. Ct. App. 2014), trans. denied(citing McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000), trans. denied)(“[W]hen the evidence is handled by public officers, there is a presumption that they use due care and that the evidence is handled with regularity.”)
See also Filice v. State, 886 N.E.2d 24, 34 (Ind. Ct. App. 2008), trans. denied(citing Murrell v. State, 747 N.E.2d 567, 572 (Ind. Ct. App. 2001), reh’g denied, trans. denied)(“There is a presumption of regularity in the handling of exhibits by public officers.”)
• Thus, merely raising the possibility of tampering is insufficient to make a successful challenge to the chain of custody.
Filice v. State, 886 N.E.2d 24, 34 (Ind. Ct. App. 2008), trans. denied(citing Cockrell v. State, 743 N.E.2d 799, 809 (Ind. Ct. App. 2001))
Bell v. State, 881 N.E.2d 1080, 1084 (Ind. Ct. App. 2008), trans. denied(citing Cockrell v. State, 743 N.E.2d 799, 809 (Ind. Ct. App. 2001))
• To mount a successful challenge to the chain of custody, one must present evidence that does more than raise a mere possibility that the evidence may have been tampered with.
Espinoza v. State, 859 N.E.2d 375, 382 (Ind. Ct. App. 2006)(citing Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002))
See Bussberg v. State, 827 N.E.2d 37, 42 (Ind. Ct. App 2005), reh’g denied, trans. denied(quoting Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002))(“One must present evidence that does more than raise a mere possibility that the evidence may have been tampered with to mount a successful challenge to the chain of custody.”)
See also Vaughn v. State, 13 N.E.3d 873, 882 (Ind. Ct. App. 2014), trans. denied(citing McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000), trans. denied)(“In order to challenge the adequacy of the chain of custody, a defendant must present evidence that does more than raise a mere possibility that the evidence could have been tampered with.”)
Relationship to the right of confrontation
• Essentially, there is no Confrontation Clause violation where the State introduces evidence and links in the chain of custody of that evidence are missing.
Speers v. State, 999 N.E.2d 850, 855 (Ind. 2013), cert. denied, 134 S. Ct. 2299 (2014)
Examples from case law
• Here the possibility of tampering was precluded by the sealing of the envelope, that of loss or substitution by the recording of the registered mail number . . . .
Gilliam v. State, 383 N.E.2d 297, 300 (Ind. 1978)
See Muex v. State, 800 N.E.2d 249, 253 (Ind. Ct. App. 2003)(quoting Gilliam v. State, 383 N.E.2d 297, 300 (Ind. 1978))(“In Gilliam, our supreme court held that ‘the possibility of tampering was precluded by the sealing of the envelope and that of loss or substitution precluded by recording of the registered mail.’”)
• Here, the presence of the sealed container in an unaltered condition gives us a reasonable assurance the DNA results passed through the chain of custody in an undisturbed manner.
Muex v. State, 800 N.E.2d 249, 253 (Ind. Ct. App. 2003)
• The sole assigned reason for the contention that the chain of custody was insufficient is that the evidence bag lacked being sealed by about one inch, and the officer could not say positively that it was not opened after he put his initials on it. The chain of custody was otherwise established and there is no suggestion of tampering with the exhibits. . . . We find no error under this assignment.
Jones v. State, 457 N.E.2d 231, 233 (Ind. Ct. App. 1983)
• The fact that a police officer left an accused rapist's comb on his desk, which was in an unlocked room open to others, for a short time while he was absent did not establish a break in the chain of custody sufficient to render the comb inadmissible at trial.
See Harris v. State, 480 N.E.2d 932, 936 (Ind. 1985)
• A chain of custody adequate to permit introduction of a sexual assault evidence kit was provided by testimony of nurses, even though one nurse testified that she found the kit on her desk in the emergency room when she arrived at work and that no one handed it to her and that her office had not been locked.
See Delatorre v. State, 544 N.E.2d 1379, 1384 (Ind. 1989)
• A proper chain of custody can be established through an officer's identification of the evidence and testimony that he observed the exchange in its entirety with an unobstructed view.
Lee v. State, 689 N.E.2d 435, 439 (Ind. 1997), reh’g denied(citing Collins v. State, 645 N.E.2d 1089, 1092 (Ind. Ct. App. 1995), aff’d in relevant part, 659 N.E.2d 509 (Ind. 1995)