Chain of Custody Considerations

Chain-of-Custody Considerations
By: SSA William A. Zinnikas, FBI/NYO/JTTF
Chain-of-custody is the ability to give an accurate accounting

in a court of law as to the manner in which evidence was acquired,
maintained, transported, examined, etc., by whom, when, where,
and for what purpose.
Chain-of-custody describes a process as testified to by an

individual who offers real evidence in a court of law and can
account for the evidence from the moment it reached his/her
custody until it is offered as evidence in court.
Chain-of-custody bears on the weight of the evidence, not its

admissibility. Just because you don’t have a chain-of-custody
process doesn’t mean that the evidence is inadmissible.
Admissibility is determined by the manner in which the evidence
was acquired. (It must be legally obtained! “Fruit of the poisoned
tree,” etc.)
The emphasis is on the individual, not the process.

A process alone does not create chain-of-custody. Any
documentation merely supports the person’s testimony with
respect to the handling of the evidence.
Chain-of-custody can be perfect, or imperfect. Even if the

process is faulty, a chain-of-custody could still be established.
Chain-of-custody is more of a concept than a precise

formula. (“It’s all about believability!”)
waz
02/26/2003
Technically, chain-of-custody only applies to sworn law
enforcement officers. However, if a laboratory is assisting law
enforcement in an investigation, the laboratory could be construed
by the court as an “agent” of law enforcement.
There is no law, code, regulation, or other legal formula

which gives specific guidance that can be followed to achieve
chain-of-custody. Rather, the courts have established certain
minimum standards for chain-of-custody through case law. Any
action by law enforcement, or their agents, can be challenged by
defense counsel.
Various agencies have implemented written protocols dealing

with chain-of-custody issues to insure consistency, conformity, and
compliance with accepted standards for maintaining chain-of-
custody.
It is strongly recommended that a written policy be drafted to

address chain-of-custody issues for your laboratory and that this
policy be rigorously followed by all lab personnel.
However, having a written policy can be a double-edged

sword. On the one hand, it demonstrates sound chain-of-custody.
On the other, breech of your own policy can be problematic for the
prosecution.
Having a written policy and not following it can be fatal

to a successful prosecution, even though your actions meet the
minimum standards for maintaining chain-of-custody. Defense
counsel can use non-compliance with written policy as a means to
try to impeach any subsequent testimony, no matter how otherwise
credible.
If you don’t think you are going to scrupulously follow

your written chain-of-custody policy, don’t write one!
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However, be prepared to testify in court as to who did what with
the evidence and why. As long as your actions meet certain
minimum standards, the items in question can be entered into
evidence.
Consideration should be given to designating one person at

your laboratory as the “Evidence Custodian.” Ideally, this one
person will control the storage of the evidence, document all
access to it, and be in a position to testify in court as to the
condition, security, and custody of the evidence.
The Evidence Custodian should be someone who will be

perceived as credible by a jury, is accustomed to speaking in
public, and would not be easily unnerved by defense counsel.
Also, designating one person as the “Evidence Custodian”

may lessen the potential impact of a trial on your facility. The
testimony of the “Evidence Custodian,” not the entire laboratory
staff, may be sufficient to establish proper chain-of-custody if this
becomes an issue at trial.
A written record (“Chain-of-Custody Form”) should be made

of the receipt or release of any potential evidence and should
include a detailed description of the potential evidence. (This
detailed description can be used to refute any assertions by defense
counsel that the evidence was tampered with while being tested at
the laboratory.)
This Chain-of-Custody Form should be maintained in a

secure location by the Evidence Custodian to insure that it is not
altered or otherwise tampered with.
The original Chain-of-Custody Form should be

maintained by the facility that generated it during their handling
of the evidence. A copy should be attached to the evidence it
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describes when that evidence is turned over to another
agency/facility.
If you are called to testify as to the handling of evidence at

your facility, you want to have the original Chain-of-Custody Form
available to you. (The prosecution may require it at some point.)
Evidence should be maintained in a secure (locked)

location and in a manner that will not alter the physical
properties of the evidence. (temperature, light, moisture, cross
contamination, etc.) (Don’t keep your lunch in the same
refrigerator where the evidence is maintained!)
Access to the facility in which the evidence is stored

should be strictly controlled (one key) and limited only to those
with a legitimate interest in the evidence.
There should be strict accountability of everyone who

accesses the evidence and the Chain-of-Custody Form should be
amended whenever the evidence is removed from the evidence
storage facility, regardless of the reason.
The Chain-of-Custody Form should capture the identity

(name & signature) of the person removing the evidence from the
evidence storage facility, as well as the time, date, and purpose of
the removal.
Everyone who has legitimate access to the evidence does not

have to sign the Chain-of-Custody Form, only the person who
removes it from the evidence storage facility.
However, everyone who comes in contact with the evidence,

for any reason whatsoever, should be prepared to testify in court as
to their actions.
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Other C-o-C Considerations
Detailed records should be kept of all testing, regardless of
the results. Exculpatory information must be documented and is
discoverable. Also, negative results can be just as important as
positive results. (cyanide / meat example)
Test documentation should also indicate everyone who

participated in the testing.
If it appears the prosecution has a solid case otherwise, only

two areas are open to legal challenge by defense counsel: chain-
of-custody and tampering. (Tampering can be alleged to have
been purposeful manipulation or negligent handling.)
Bear in mind during the testing of evidence at your

laboratory that subsequent forensic testing for fingerprints, DNA,
hairs & fibers, etc., may be done at another facility (crime lab).
Try not to do anything that might inhibit this process. If in doubt,
consult with the criminalist through the FBI. (e.g., “Extreme
Micro” at CDC)
The US Postal Service (i.e., Registered Mail) and reputable

courier services (e.g., FedEx, UPS, DHL, etc.) that utilize a
reliable package tracking system to insure the integrity of the
shipment can be used to ship evidence from place to place.
If you ship evidence, make sure you follow all applicable

shipping regulations! (proper packaging, labeling, forms,
documentation, etc.)

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Chain-of-Custody Considerations

By: SSA William A. Zinnikas, FBI/NYO/JTTF

Chain-of-custody is the ability to give an accurate accounting

Chain-of-custody describes a process as testified to by an

Chain-of-custody bears on the weight of the evidence, not its

The emphasis is on the individual, not the process.

Chain-of-custody can be perfect, or imperfect. Even if the

Chain-of-custody is more of a concept than a precise

There is no law, code, regulation, or other legal formula

Various agencies have implemented written protocols dealing

It is strongly recommended that a written policy be drafted to

However, having a written policy can be a double-edged

Having a written policy and not following it can be fatal

If you don’t think you are going to scrupulously follow

Consideration should be given to designating one person at

The Evidence Custodian should be someone who will be

Also, designating one person as the “Evidence Custodian”

A written record (“Chain-of-Custody Form”) should be made

This Chain-of-Custody Form should be maintained in a

The original Chain-of-Custody Form should be

If you are called to testify as to the handling of evidence at

Evidence should be maintained in a secure (locked)

Access to the facility in which the evidence is stored

There should be strict accountability of everyone who

The Chain-of-Custody Form should capture the identity

Everyone who has legitimate access to the evidence does not

However, everyone who comes in contact with the evidence,

Test documentation should also indicate everyone who

If it appears the prosecution has a solid case otherwise, only

Bear in mind during the testing of evidence at your

The US Postal Service (i.e., Registered Mail) and reputable

If you ship evidence, make sure you follow all applicable

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