Chain of custody (Evidence)

[seattlewag]

What is the name of your state (only U.S. law)? Washington

Hi, I'd like to know if it's permissible or typical for attorneys to transport evidence in a criminal case, from one state to another, for the purpose of consulting a potential expert witness? Wouldn't that be breaking the chain of custody?

If not, what would the usual procedure be for having an expert witness for the defense examine the evidence in a clinical setting?

I'm referring to a pair of underpants with blood residue, in a 1975 first degree rape case.

 

[quincy]

What is the name of your state (only U.S. law)? Washington

Hi, I'd like to know if it's permissible or typical for attorneys to transport evidence in a criminal case, from one state to another, for the purpose of consulting a potential expert witness? Wouldn't that be breaking the chain of custody?

If not, what would the usual procedure be for having an expert witness for the defense examine the evidence in a clinical setting?

I'm referring to a pair of underpants with blood residue, in a rape case.

Experts are flown in.

 

[LdiJ]

Experts are flown in.

But sometimes things like that are sent to labs in other areas, and maybe even other states, but there are procedures when doing that that maintain the chain of custody.

 

[quincy]

But sometimes things like that are sent to labs in other areas, and maybe even other states, but there are procedures when doing that that maintain the chain of custody.

Yes, there are other ways for an expert to examine evidence besides being flown into the area where the evidence is being held.

Before going into greater explanation, though, I would sort of like to know what seattlewag's interest is in the rape case. Curiosity? Writing a novel? Student doing class research or answering a test question? Rape suspect/defendant or one who has been raped/plaintiff?

Here is a link to the Federal Rules of Evidence: https://www.law.cornell.edu/rules/fre

 

[Just Blue]

What is the name of your state (only U.S. law)? Washington

Hi, I'd like to know if it's permissible or typical for attorneys to transport evidence in a criminal case, from one state to another, for the purpose of consulting a potential expert witness? Wouldn't that be breaking the chain of custody?

If not, what would the usual procedure be for having an expert witness for the defense examine the evidence in a clinical setting?

I'm referring to a pair of underpants with blood residue, in a rape case.

Who are you in this case?

 

[quincy]

Who are you in this case?

That is the question.

I can tell seattlewag that a criminal defense attorney would not be handed the state's criminal evidence so the defense attorney could have it examined by an expert out-of-state.

 

[seattlewag]

Yes, there are other ways for an expert to examine evidence besides being flown into the area where the evidence is being held.

Before going into greater explanation, though, I would sort of like to know what seattlewag's interest is in the rape case. Curiosity? Writing a novel? Student doing class research or answering a test question? Rape suspect/defendant or one who has been raped/plaintiff?

Here is a link to the Federal Rules of Evidence: https://www.law.cornell.edu/rules/fre

Hello, and thank you for the response. I'm sorry I couldn't reply sooner.

I'm a freelance journalist researching a case.

I took some criminal law classes in college, and recall that evidence in a criminal case is strictly guarded. As
I noted in my reply to your other post, and again I apologize for unintentionally leaving this out of my original
discussion, the defense claims to have gotten a "special court order" to do this. Is that typical? For one of the
parties in the case, particularly the defense, to be allowed sole custody of crucial evidence so they can transport
it by commercial airline out of state to have a potential expert witness examine it in his own environs in the course
of deciding whether or not to come on board? Wouldn't that expert have to be certified by the court first? How
could that even be done remotely? Wouldn't any prosecutor in his or her right mind, strenuously object?

If I could ask another question, that you may or may not be able to answer, how much do expert witnesses
like that cost, including expenses? This one was internationally renowned, 47 years in the field of forensic blood
science/evidence.

 

[seattlewag]

That is the question.

I can tell seattlewag that a criminal defense attorney would not be handed the state's criminal evidence so the defense attorney could have it examined by an expert out-of-state.

See the reply in your other posting for who I am etc. Also, I've edited all my replies in this thread to reflect that I unintentionally left out an important detail in my original post. The defense attorney/public defender claims to have gotten a "special court order" to do this.

If one party takes custody of the evidence, particularly the defense, what's to keep them from "losing" or contaminating it? Seems like it would be prohibitively complicated and expensive to do so in a way that preserves the integrity and COC.

I'm assuming the expert would have to be flown in however many times it's necessary, first to examine the evidence, and later to testify?

Thank you.

 

[seattlewag]

Who are you in this case?

I'm a freelance investigative journalist researching it.

 

[seattlewag]

But sometimes things like that are sent to labs in other areas, and maybe even other states, but there are procedures when doing that that maintain the chain of custody.

Hello, thank you for the reply.

Yes, I knew that evidence was sometimes transported to crime labs out of state for things like DNA analyses etc.. I was just wondering if it's typical for the defense to take sole custody of evidence in a case, much less transport it out of state?

In the case I'm researching, the defense attorney claims to have gotten a special court order to do this.

 

[seattlewag]

That is the question.

I can tell seattlewag that a criminal defense attorney would not be handed the state's criminal evidence so the defense attorney could have it examined by an expert out-of-state.

Hello again, I do apologize, but it seems I unintentionally left out an important detail.

The defense attorney/public defender claims to have gotten a special court order to do this.

How common would that be in a first degree rape case?

 

[CavemanLawyer]

Unless an expert just needs to do a physical inspection, I cannot see what analysis would possibly need to be done on bloody panties other than another DNA analysis. When dealing with a specific stain on clothing that is apparent blood you do not even need to send the panties to a different lab for testing. The analyst at the original lab will have swabbed the stain and tested that for DNA. If the defense expert's lab wanted to do their own analysis then they could retest those same swabs or request that new swabs be made. It is quite common to send swabs to another lab out of state through the mail because they are basically just Q-Tips. If they get lost or damaged it doesn't matter. If the external box or any of the internal containers have broken seals then they will not test it. The chain of custody is preserved because the original lab can testify they sealed it and receiving lab can testify that it was still sealed when they got it, thus no tampering.

None of this is going to be done for an expert who is not yet retained. Evidence cannot be released to some random guy the defense is thinking about hiring. Expert fees range wildly but the one thing that is consistent is that they have certain fees for their investigation and then hourly rates for actual testimony. I've seen experts cost about $1500 and I've seen them cost $50,000 or upwards of $150,000 in death penalty cases.

Also "chain of custody" doesn't mean what most people think it means. A uniquely identifiable object doesn't need a chain of custody... or rather the chain is just a single link. If the victim can testify that those are her panties and they are in the same condition as they were at time they were seized... then the item has been authenticated regardless of how many other people or entities it passed through. Now there does need to be a chain of custody for any laboratory testing but that chain begins with the seizure of the item and ends at the lab, and what happens in between isn't usually relevant (unless there is evidence of tampering.) So officer A collects and seals the panties. He puts it in evidence locker maintained by officer B. Officer C transports it to the lab. Lab Tech D process package and puts it in their storage locker. Lab Tech E transports package to serology division. DNA analyst F performs all serology and DNA testing then repackages it and gives it back to Lab Tech D. Officer G picks package up at lab and logs it back into evidence. DA Investigator H delivers it to the prosecutor for trial. And now prosecutor Z wants to admit it in trial. Guess who needs to testify? Officer A to say he sealed it and DNA analyst F who did the testing and can say it was sealed when they got it. That's it, your first link and your last link of the testing. What happened in between or what happened after doesn't matter.

 

[CavemanLawyer]

Hello again, I do apologize, but it seems I unintentionally left out an important detail.

The defense attorney/public defender claims to have gotten a special court order to do this.

How common would that be in a first degree rape case?

That is never going to happen, period. Defense and/or experts can inspect physical evidence but they will never be given possession of it in a pending criminal case for obvious reasons. It could be destroyed or lost and they'd actually have an incentive to make that happen. It would also put them in the chain of custody. Even if they are not a necessary witness to prove chain of custody it wouldn't matter, they'd be a witness and could no longer represent the defendant.

 

[seattlewag]

Unless an expert just needs to do a physical inspection, I cannot see what analysis would possibly need to be done on bloody panties other than another DNA analysis. When dealing with a specific stain on clothing that is apparent blood you do not even need to send the panties to a different lab for testing. The analyst at the original lab will have swabbed the stain and tested that for DNA. If the defense expert's lab wanted to do their own analysis then they could retest those same swabs or request that new swabs be made. It is quite common to send swabs to another lab out of state through the mail because they are basically just Q-Tips. If they get lost or damaged it doesn't matter. If the external box or any of the internal containers have broken seals then they will not test it. The chain of custody is preserved because the original lab can testify they sealed it and receiving lab can testify that it was still sealed when they got it, thus no tampering.

None of this is going to be done for an expert who is not yet retained. Evidence cannot be released to some random guy the defense is thinking about hiring. Expert fees range wildly but the one thing that is consistent is that they have certain fees for their investigation and then hourly rates for actual testimony. I've seen experts cost about $1500 and I've seen them cost $50,000 or upwards of $150,000 in death penalty cases.

Also "chain of custody" doesn't mean what most people think it means. A uniquely identifiable object doesn't need a chain of custody... or rather the chain is just a single link. If the victim can testify that those are her panties and they are in the same condition as they were at time they were seized... then the item has been authenticated regardless of how many other people or entities it passed through. Now there does need to be a chain of custody for any laboratory testing but that chain begins with the seizure of the item and ends at the lab, and what happens in between isn't usually relevant (unless there is evidence of tampering.) So officer A collects and seals the panties. He puts it in evidence locker maintained by officer B. Officer C transports it to the lab. Lab Tech D process package and puts it in their storage locker. Lab Tech E transports package to serology division. DNA analyst F performs all serology and DNA testing then repackages it and gives it back to Lab Tech D. Officer G picks package up at lab and logs it back into evidence. DA Investigator H delivers it to the prosecutor for trial. And now prosecutor Z wants to admit it in trial. Guess who needs to testify? Officer A to say he sealed it and DNA analyst F who did the testing and can say it was sealed when they got it. That's it, your first link and your last link of the testing. What happened in between or what happened after doesn't matter.

Thank you very much for the detail. I'm going to read through the rules of evidence in the Cornell link someone was kind enough to provide, then I may have some additional comments or questions. You've given me a lot to think about.

The defense lawyer/public defender claims to have made this trip to see a very prominent forensic blood evidence expert out of state, because the original evidence in the case, the defendant's underwear with blood residue on it, had a swath with the blood on it cut out of them by the crime lab, who analyzed it and then supposedly threw it out (lost it). She maintains that she wanted to find out if this supposedly unimpeachable expert witness would testify that any stains remaining on the underwear, would be inadequate for further testing? She says that after looking at the underpants with a magnifying glass (not even under a microscope), the out-of-state expert informed her they would be inadequate for testing, in other words, useless to the prosecution. After returning from this trip, she claims to have used the threat of this renowned expert testifying accordingly, as leverage to get a first degree rape case pled down to time served, two months.

I'm not buying it.

In addition to the chain of custody and integrity issue, this is a public defender case, and I'm not sure the defense could have afforded the trip, much less to hire and pay this expert. Now if she gets this "special court order" and makes this trip with the evidence in hand, maybe she gets an appointment by lying to or misleading the expert about her means ... but upon her return, unless he's real backwoods, wouldn't the prosecutor be able to put 2+2 together and immediately laugh her out of the room when she tries to get the evidence suppressed or aggressively negotiates a plea under threat of having this "internationally renowned expert" flown in multiple times to test/analyze/testify? How much of a budget does a public defender get in a first degree rape case? And in one of the poorest states in the union, btw?

I looked the guy up. She doesn't provide a name, but she provided enough background so that I'm reasonably certain I know who it is (and so would any Ivy League law school graduate from that time).

Thank you again.

 

[seattlewag]

That is never going to happen, period. Defense and/or experts can inspect physical evidence but they will never be given possession of it in a pending criminal case for obvious reasons. It could be destroyed or lost and they'd actually have an incentive to make that happen. It would also put them in the chain of custody. Even if they are not a necessary witness to prove chain of custody it wouldn't matter, they'd be a witness and could no longer represent the defendant.

That's what I was thinking, there would be an enormous incentive to compromise or "lose it". About the only thing I can fathom, is that maybe an officer of the court was required to make the trip with her and maintain the custody at all times ... but that would be enormously expensive, wouldn't it? This is a public defender case. See my comment in your other post.

Thanks again.