The State has not proven Chain of custody

"The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter is

what its proponent claims." N.J.R.E. 901. "A party introducing tangible evidence has

the burden of laying a proper foundation for its admission." State v. Brunson, 132

N.J. 377, 393 (1993). This foundation should include a showing of an uninterrupted

chain of custody. Ibid. (citing State v. Brown, 99 N.J. Super. 22, 27, (App. Div. 1968),

certif. denied, 51 N.J. 468 (1968)).

Where an incriminating object has passed out of the possession of the original

receiver and into the possession of others, the “chain of possession” must be

established to avoid any inference that there has been substitution or tampering.

State v. Brown , 99 N.J.Super. 22, 27 (App. Div. 1968), certif.den. 51 N.J. 468 (1968);

State v. Johnson, 90 N.J.Super. 105, 113 (App. Div. 1965), aff'd 46 N.J. 289 (1966).

The determination of whether the State sufficiently established the chain of

custody is within the discretion of the trial court. Brown, supra, 99 N.J. Super. at 27.

Generally, evidence will be admitted if the court finds "in reasonable probability that

the evidence has not been changed in important respects or is in substantially the

same condition as when the crime was committed." Id. at 28 (citations omitted).

"[A] defect in the chain of custody goes to the weight, not the admissibility, of the

evidence introduced." State v. Morton, 155 N.J. 383, 446 (1998).

According to N.J. Practice, Criminal Procedure by Honorable Leonard Arnold,

J.S.C. (West Publishing), Volume 32, Chapter 21, Section 1034, a party seeking to

introduce an item of physical evidence must prove that the item was that which

was taken from a particular person or place which makes the item relevant as

evidence in the trial. Such proof is provided by testimony identifying the item as

having been taken from that person or place, and by evidence tracing custody of

the item from the time it was taken until it is offered in evidence. This latter

evidence is necessary to avoid any claim of substitution or tampering. State v.

Johnson, 90 N.J. Super. 105, (App. Div. 1965), aff'd 46 N.J. 289, (1966).

The required proof includes:

1) testimony by an investigator identifying the item as that which the

investigator discovered and took;

2) testimony by that investigator that there was no tampering with the item

while it was in his/her custody;

3) testimony regarding delivery of the item to the second person who had

custody of the item;

4) possibly similar testimony by the second and each subsequent person who

had custody of the item until the time of its presentation in court. Where the item

has been submitted to a laboratory for analysis, proof of the chain of custody

should ideally include: testimony from the person who took the item (or

specimen) to the laboratory; proof of the method of reception and storage at the

laboratory prior to and after analysis; up to the time of trial. Arnold, N.J. Practice,

Criminal Procedure, Sec. 1034.

The most difficult aspect of the proof specified above is usually the

identification of the evidence by the investigator who discovered it. This difficulty

arises because of the frequent failure to properly "mark" the item. "Marking"

means the placing by the investigator of at least his/her initials on the item.

Unfortunately, sometimes items are "marked" by affixing an evidence tag to the

item with a string. The investigator then puts his/her initials on the tag. When

the string breaks and the tag is lost it may then be impossible for the investigator

to identify the item as being the item that was discovered. Arnold, N.J. Practice,

Criminal Procedure, volume 32, Section 1034.

Many excellent texts, one such text is the Handbook of Forensic Science,

published by the Federal Bureau of Investigation provide information on the

proper "marking" of various types of evidence, and they should be studied by

investigators having responsibility for the collection of physical evidence. But the

basic rule is as follows: The item should be "marked" by the investigator placing

his/her initials, date, and the case number on the item itself. Metallic surfaces

should be so "marked" with a machinist's scribe. Liquids, soils and small

fragments should be placed in a suitable container and sealed. The container

should be "marked" by scribing the same information on the container, or by

using some other permanent form of marking material on the container. Arnold,

N.J. Practice, Criminal Procedure, Volume 32, Section 1034.

With respect to avoiding a claim of substitution of another item for that seized

or a claim that the item has been tampered with, the problems of proof can be

minimized by designating one investigator as the custodian of all the physical

evidence in a given investigation. All investigators who recover physical evidence

must turn that evidence over to the custodian, who is then responsible for the

evidence from that time forward until trial. Where evidence must be submitted to

a laboratory, the custodian delivers that evidence to the laboratory, and obtains a

receipt from the laboratory. When the laboratory has completed its examination,

it is the custodian who returns to the laboratory, receives the remaining specimen

1 from the laboratory, and retains custody of the specimen and brings it to court

for trial. By following this procedure, all the physical evidence can be introduced

by calling the various investigators who recovered and marked each item of

physical evidence, the custodian, and the laboratory specialist who examined the

evidence. (The laboratory specialist testifies not only with respect to the

laboratory examination, the specialist's findings and opinion, but also as to the

method of reception and storage at the laboratory prior to and after analysis.)

Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.

The identification of evidence and chain of evidence rules require that the

proponent of the evidence show that the evidence has not been tampered with,

and that there has not been any irregularity which altered its probative value.

State v. Roszkowski, 129 N.J. Super. 315, 323 A.2d 531 (App. Div. 1974).

The NJ Division of Criminal Justice in the Attorney General’s Office published a Manual called “The Property and Evidence Function. The manual describes the duty’s of a police department’s “PROPERTY OFFICER”

“To maintain the continuity of the property function, the chief law enforcement officer should delegate the property control function to one specific officer. The primary duties of the property officer include the preservation and safeguarding of all property, as well as the disposition of all property. In medium to large departments, the duties of a property officer can be a full time assignment for one or more officers. In smaller departments, the property officer duties along with other duties might be assigned to one officer. If this is the case, the chief law enforcement officer must insure that the property function is receiving the time, effort and attention that it needs.

The property officer's duties, responsibilities and authority should be clearly defined by department rules and policies. At a minimum, the property officer shall:

1. Maintain appropriate written records, including records which reflect the chain of custody of property while it is in the possession of the police department.

2. Maintain the property in a place and under conditions which eliminate as much as possible any risks of loss or tampering.

3. Maintain physical control of property until it is properly disposed.

Access to evidence and the property vault must be restricted to the property officer. One other officer, preferably the property officer's supervisor, should have access in case the property officer is unable to perform his duties. “http://www.nj.gov/oag/dcj/agguide/propevid.pdf

Conclusion