January 20

Ask a lawyer 06: Chain of Custody

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In this episode, Blaine Clooten invites Andrew McGuire to discuss some of the top questions coming up around chain of custody.  


Some of the highlights they hit on are: 

If you're interested in listening to this episode, you can do so by heading over here and listening or the transcript is below for your reading pleasure.  

Enjoy the listen (or read) and we'll see you next time!


Transcript


Blaine Clooten

This is Ask A Lawyer with Blaine Clooten. We are sponsored by fairpunishment.org. And I am joined in studio from an undisclosed location by Andrew McGuire.

Andrew McGuire

Excited to be here Blaine, and talking about another adventurous topic with you.

Blaine Clooten

All right. I am an attorney, I'm not your attorney. Andrew is not an attorney, is a layman posing questions that we receive. And I'm going to go ahead and call this podcast to order. Please be seated and buckle up. Andrew, why don't you tell the folks, what's our topic for today?

Andrew McGuire

I'm really excited about this one because I have lots of questions, and so does our audience. And the topic is, What is chain of custody? And we're going to it into a few different things besides what it is. But how does it actually work, and why understanding this is so important. So, one of the ways I wanted to go through this exercise with you is, a story that most of us, I would think at this point, and maybe for people that are a little younger, they may not have lived through this, but I wanted to get into OJ Simpson in the chain of custody with his gloves. And for some context, for those that don't know, it was Sunday, June 12th 1994, and this is the date at which there were a few people that were murdered on OJ's property, and specifically it was, let me see here, 875 South Bundy Drive. And there were two people that were murdered, and there were gloves at the scene, and there were bloody gloves.

Andrew McGuire

My question around this is, when OJ at the end of his trial, he tried to put on these gloves and they didn't fit. So the assumption was, when you're watching this on TV, that these were the wrong gloves. Now, the first thing that went through my head when I was watching this, and I re-watched a little bit of this to talk to you about it was, "what if someone had taken those gloves and put them in a washing machine and they shrink, and that's why they didn't fit." Obviously, I'm assuming because of chain of custody, that's not possible, but, if these bloody gloves are found by someone on scene and somehow, someone takes them, and washes them, or shrinks them or whatever, then, they don't fit. So, therefore it couldn't have been him. Right?

Andrew McGuire

But, going back to what is chain of custody. In this place, at which this murder happened, and these gloves are found, I see him putting into it plastic bag, and then they seal the Ziploc and market is bloody gloves on the June 12th, 1994, and then all of a sudden they have all these rules of chain of custody, which I want to talk to you about. But, to me, that's the first thing I think of. And I think a lot of us do when we think of chain of custody and where things can go wrong, because clearly, someone did something to shrink those gloves because we all know OJ did it.

Blaine Clooten

Well, two thoughts to kind of short circuit the glove issue. You have kids, have you ever tried to put a coat on a kid that didn't want to wear it?

Andrew McGuire

It's snowing, it happens every day. And the gloves are the most difficult thing. But yeah, a coat, a jacket, even shoes or boots, why won't you put on boots, if we're not putting on flip flops to go outside? It's snowing.

Blaine Clooten

But have you ever heard the excuse, "It's too small. It doesn't fit me" for a coat?

Andrew McGuire

Yeah. I can hear my kids yelling at me in the background. "It's too small. I don't want to wear this." Yes.

Blaine Clooten

And they can make it look too small. They can contort their bodies or do things to make it look like it doesn't fit.

Andrew McGuire

No. You can get it on them. I would disagree with that. Like if it fits, it fits. And yes, it depends on how big your kids are, but if they're younger, you could do it. But obviously OJ is not a small child.

Blaine Clooten

Well, the glove itself was supposed to be covered in blood and then it was dried out, so that would've shrunk the glove.

Andrew McGuire

Well, okay. Now you're getting into conspiracy theories. We all know he did it. Somehow he got away with it because his lawyer was great.

Blaine Clooten

I think that the main thing was that, there was a lot of parts of this case. I'm by no means an expert in the OJ Simpson case. There is old TV show, which you can go watch about it. So I'll just back up and I'll say that I'm an attorney. But, to the extent that people disagree with this, a lot of it has to do with issues about belief in the case, like you're talking about that. He just did it, and he had a good attorney, he was able to get away with it. In my opinion, the biggest reason why the defense was so successful in this case was that, they did not waive speedy trial, and they forced the case to be tried within a certain period of time, and that's by statute. And part of the issue with that was that the district attorney's office felt pressure to hurry up and charge OJ Simpson with the crime.

Blaine Clooten

In most cases, what happens is that, the police, or detectives, or the agencies, will spend a lot of time gathering all of the best evidence that they have, present it to the district attorney. The district attorney may then submit and request additional warrants so that they can gather even more evidence, and they'll gather all of the evidence that they need to prove the case beyond a reasonable doubt before they file charges. In this case, they kind of did a rush to file charges, and so they didn't have all of the best evidence that they needed for the trial.

Andrew McGuire

Well, regardless. Going back to the point the question, whether it's the knife they found, or the gloves, the question was about chain of custody. Yes, we could spend a whole episode just breaking this trial down and I could argue with you about why. Anyway, point was, what is chain of custody? And let's just talk about that. But, finish your thought and let's get back to that.

Blaine Clooten

So, generally speaking chain of custody is the process or procedure that the individual agency is using to collect evidence. And as far as collection of evidence, is the collection and preservation of evidence. The reason why we can talk about chain in custody generally is that, almost every agency follows a very similar procedure. And so when I say agency, it can be LAPD, or the city's police, or the States' police, the county's police. They're mostly following a substantially similar process. And the procedure is usually that, as they're combing the scene for evidence, if a officer discovers a piece of evidence, they're digitally capturing where it was discovered and logging it. Oftentimes you'll see them put down one of those number markers next to it. They then will then collect the evidence and then present that evidence to the exhibits officer who logs the information about the evidence, such as who the officer was that found it, the date and time that it was found, and then that evidence is taken back to usually a secure holding's facility where they'll hold the evidence. And then if the evidence then needs to be tested, they would send it to the lab.

Andrew McGuire

Okay.

Blaine Clooten

And that whole process about the initial officer who collects it going to the exhibits log officer, then potentially going to the lab, and then, who it's sent to the lab by, whether it's through FedEx or whoever is actually doing that, or if it's the local agency's office personally delivering it to the lab, that's all part of the chain of custody.

Andrew McGuire

Okay. That's where the washer is. That's where something could go wrong. Right? So if someone were to go get a piece of evidence, I know it's lock and seal and people aren't supposed to access it, but that's the point where, whatever the storage facility is, that's how it's supposed to work and you have to log things in and out, and when you see TV shows where people are trying to sneak stuff out of there, it has a log and a trail of who is responsible for it. And then the people that are supposed to be guarding that they're liable of something goes wrong, right?

Blaine Clooten

Well, more or less so. And the reason why the procedure is carried out in this way, it's so that when the evidence is received at the laboratory and it appears that it's been tampered with, or that for some reason, that evidence is not received at all, there's a record that they can trace back to who last handled it, who actually received the evidence, and there's actually then going to be a recorded chain of custody, so that we can always track back to who was the last person in control of it.

Andrew McGuire

Got it. And that's why understanding the chain of custody is so important, because then, you can actually determine what went wrong, when, and who was responsible for that.

Blaine Clooten

Exactly.

Andrew McGuire

Okay. So Nicole Brown and Ronald Goldman in the OJ Simpson trial would thank you for explaining this. I'm assuming there's different levels, or maybe there's not, but different levels of chain of custody, depending on what type of crime it is, or are there different levels of importance to pieces of evidence or does everything, no matter if it's a rock, a bloody knife, a kid's sweater that fell off the playground then broke his arm, right? Is it all equal the same, and everybody follows the same chain of custody or are there different levels to it?

Blaine Clooten

That's a good question. The bottom line is that chain of custody is important for making sure that the information that's gathered is reliable and trustworthy. And so, I think that the problem really comes into play when the officers are initially investigating or called out to a scene and they don't know yet what severity of crime it is, they don't know necessarily that they're dealing with a murder. They think they just might be dealing with a break in, or something like that. If they're called to a scene and they're doing a welfare check and they walk into a house, they might walk right through a pool of blood and disturb some evidence, right? As far as the procedures that are taken, it's really going to depend on the agency that's involved and then what procedures they're putting in place based on what crime is that issue.

Blaine Clooten

So, if they know initially that it's a murder and they're going to a murder scene, then we know that these officers are going to be delegated to do these responsibilities and then make sure you're bringing evidence back to the officer log so that we can make sure that we're keeping a good chain of evidence. One of the big issues in OJ Simpson's case, as I recall, I'm doing a lot of this from memory, which is dangerous, is that there was certain evidence that was collected at the scene, certain bloody swabs and certain evidence that was taken, but then what showed at the laboratory didn't match what was in that exhibit log. So, they may have said, "We collected four bloody swabs from the scene from various locations, the rock, the knife or whatever, but then something like 40 or some large amount actually showed up the lab, way more than was in the exhibit log." So, when that happens and they can't trace those swabs point of origin back, then, that's where the reliability and the trustworthiness come into question about that evidence.

Andrew McGuire

Okay. Yeah, and that's where things can go sideways on why people are able to get away with certain things or not is, if whether it was a clerical issue, or someone did it on purpose, right. That's a whole other topic, but determining how that happened, then you have to spend the time and energy. And if, like you said at the show, if you're trying to push this through as quickly as possible, and then you have things like that, that take time to figure out, it just creates more of a logistical nightmare and causes more of an issue where, "Maybe he did it, maybe he didn't do it." Obviously, with what I was saying originally around gloves not fitting, but clearly there's different procedural problems and challenges, depending on what you have to deal with, which is why chain of custody exists. But it can also sounds like create some challenges and issues for people too.

Blaine Clooten

Yes. I think that, that's all right.

Andrew McGuire

Yeah. Okay.

Blaine Clooten

Was there any other questions on that chain of custody?

Andrew McGuire

No. That was really it. Just understanding what it is, how does it work, and why understanding it is so important. So, those are the three big questions around chain of custody that I wanted to get into.

Blaine Clooten

All right. So let me give another example of chain in custody, just so we have one more context for this. Obviously, OJ is the flashy interesting one, but let's just take a normal driving under the influence of intoxicants where the person has refused to provide a breath test sample and now the officer's applied for a warrant and they've done a blood draw. There is a whole chain of custody process for gathering that blood, sending it to the laboratory, and then the laboratory receiving that blood sample, ensuring that the sample will is still sealed and that it had not been tampered with, that the sample before they received it was in the temperature controlled environment that it was supposed to be. There's so many steps in this chain of custody process that have to be established at trial. The thing that you're going back to about, is there levels of importance that we put on different types of cases as far as chain of custody?

Blaine Clooten

What I would say to that is, the level of importance that you put on it is how important is that piece of evidence to you in the criminal case? So, when the officers at the time are collecting that evidence, in my experience, usually they're putting a pretty high value on making sure that it's accurately recorded and properly logged so that they're able to use that evidence against their suspect who then becomes the defendant once the trial comes around. Does that make sense?

Andrew McGuire

Yeah, That does make sense. And that helps with a different example, but it's also, if I'm not going to give a breathalyzer test, you're saying that I'm being forced potentially to go down and have a blood draw test if I can do breathalyzer, is that what you're saying?

Blaine Clooten

Yeah. So in Oregon where I was a prosecutor for the better part of a decade, what we would do if they refused to take a breath test, the next step in the process would be, get a blood warrant. And so you would apply for a warrant and the judge would sign off if there was probable cause to issue that warrant and they could do a force blow blood draw at the hospital. And once they had that blood, then they could determine the BAC based on that blood sample,

Andrew McGuire

The Blood Alcohol Content, yeah?

Blaine Clooten

Yes. Blood Alcohol Content. The other thing to keep in mind is that oftentimes, especially if you're in a car accident, the hospital itself will do its own blood draw. It's a warrantless blood draw. And they can conduct their own investigation to determine BAC. So, there's potentially two sources of a BAC in a car case depending on whether or not you're in an accident.

Andrew McGuire

Okay. Yeah. That's helpful and a little bit more realistic for people. And something happens more often than crazy murder trial that is national news for years. So, thank you for bringing it back down to earth and helping us understand chain of custody in a new way. So, this has been the main topic for me and I don't have any other questions. We can get into another example if you have one or we can conclude here, it's up to you.

Blaine Clooten

No. Let's wrap up for today. So if anybody has any other questions that they want to submit to the Ask A Lawyer that they might heard here, where should they go?

Andrew McGuire

fairpunishment.org/questions

Blaine Clooten

All right. So, until next time, this is Blaine Clooten for Andrew McGuire. I'm going to call this podcast adjourn.





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