According to N.J. Practice, Criminal Procedure by
Honorable Leonard Arnold-Retired, J.S.C. (West Publishing), Volume 32, Chapter
21, Section 1034,Honorable Leonard Arnold, J.S.C. 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, 216 A.2d 397 (App.Div.1965), aff'd 46 N.J. 289, 216
A.2d 392 (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 specimen1 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 A2d 531 (App.Div. 1974).
