Professional Investigators and Chain of Custody
A settlement or ruling in a modern case could likely hinge on a piece of evidence culled from an electronic device or collected electronically. It is thus crucial that such evidence be collected ethically and correctly, to ensure it can be used in a trial.
The Chain of Custody
In a trial, an attorney proffering evidence to support their case must authenticate that evidence. For certain evidence, this means presenting a previously established chain of custody—a procedural safeguard that ensures the integrity of the evidence.
Before a trial court will allow certain evidence to be admitted, the attorney offering it has a burden to show to the court’s satisfaction that—all things considered—it’s reasonably certain that the evidence at hand has not been altered or replaced. People v. Riser, 47 Cal.2d 566, 580-81 (1956); People v. Wallace, 44 Cal.4th 1032, 1061 (2008); People v. Lucas, 12 Cal.4th 415, 444-446(1995); People v. Diaz, 3 Cal. 4th 495,569 (1992); People v. Williams, 48Cal.3d 1112, 1134 (1989). This is ensured by establishing who had custody of the evidence from its seizure to production, and how it was handled by each person or “link.”
Where a link is missing or its handling of the evidence spotty or generally questionable, it’s just as likely as not that the evidence being offered is not the same evidence that was initially collected,and the court must exclude it. Riserat 580-81; Williams at 1134; People v. Jimenez, 165 Cal.App.4th 75,81 (2008), citing People v. Catlin,26 Cal.4th 81, 134 (2001). On the other hand, if only the “barest speculation”of tampering is offered against the evidence, it can be properly admitted—though any lingering doubt as to its validity will go to its weight. Riser at 581; Williams at 1134; People v.Hall, 187 Cal.App.4th 282, 296 (2010).
Physical Evidence v. Digital Evidence
Introducing a chain of custody for a piece of evidence has been par for the course in criminal cases where an attorney tries to introduce a piece of physical evidence pertinent to their case, such as the cases cited above. Something fungible like a blood sample can easily be substituted or altered undetected unless a procedural safeguard ensures this evidence goes from crime scene to trial unspoiled. Jimenez at 81.
Chain of custody has also been increasingly used to authenticate digital or electronic evidence. See 28 U.S.C.A § 902(14). Such evidence is not fungible but can be easily manipulated. Such evidence also presents a level of complexity that the average fact finder may find difficult to comprehend at least at first. However, the complexity and distinctiveness of such evidence also lends itself to traceability and accountability—if handled correctly and efficiently from the start.
Investigators and Evidence
Investigators are often the ones to collect—and thus are the first to come in contact with—important evidence for a case. Thus,investigators are often the first “link” in the chain of custody.
As technology has inexorably advanced, it has become increasingly complex to ensure that evidence is properly collected and stored for future use. As investigators, our office has not only been mindful of this,but we acted to ensure a strong first link in any chain of custody for evidence.
For instance, our office takes measures to collect metadata on the social media evidence we uncover in our investigations. Metadata is, in simplest terms, data about data. It can be seen as highly valuable in a day and age when digital evidence can be easily manipulated where image editing programs like Photoshop are readily available, for instance. In more complex terms, evidence such as an incriminating photograph or screen capture of a social media post found during an investigation has a whole cache of information connected to it, including a distinctive identifying number or “hash” that changes each time the photo or other piece of evidence is altered in any way.
Besides evidence collected from online sources such as social media, other evidence that would traditionally be in analog form—documents, photographs, film or video—is now largely created, stored, and transferred digitally. That being the case, a lawyer being able to trace the path such evidence has taken is vital.
Federal rules were recently amended to offer a self-authenticating procedure for electronically-produced evidence that meets certification requirements and other requirements. 28 U.S.C.A § 902(13), (14). Meanwhile,in California courts it is “common and proper” for chain of custody matters to be dealt with in the early stages of trial, often in a stipulation, and any flaws in the chain are mere “technical omissions.” Lucas at 445-46, citing Diazat 560. Nevertheless, a weak chain can still be more easily pulled apart by an opposing counsel. Lucas at 446.Ultimately, to avoid any possible issues in the future with a potentially crucial piece of evidence, a lawyer should carefully manage all evidence in their case.
With all this in mind, it is vital to hire professionals mindful of chain of custody and related procedures, and who go above and beyond to ensure effective collection and preservation of evidence.Feel free to contact our office to discuss what services we offer to assist you in collecting and managing your case evidence.