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CHAIN OF CUSTODY

The legal definition of a chain of custody is, “[a] chronological documentation of the handling of evidence throughout a criminal investigation.”1 The purpose of establishing the chain of custody in a criminal proceeding is to show the reasonable probability that the evidence has not been tampered with. Ex parte Mills, 62 So.3d 574, 597–98 (Ala. 2010). In the Alabama Supreme Court case that has consistently been cited regarding requirements for chain of custody in the State of Alabama, the Court explained that “[t]he chain of custody is composed of ‘links.’ A ‘link’ is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link's possession of the item: ‘(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition.’ … ‘If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a ‘missing’ link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the ‘link,’ as to one or more criteria or as to one or more links, the result is a ‘weak’ link. When the link is ‘weak,’ a question of credibility and weight is presented, not one of admissibility.’” Ex parte Holton, 590 So.2d 918, 920 (Ala.,1991). The Holton Court continued by stating, “[T]he State must establish a chain of custody without breaks in order to lay a sufficient predicate for admission of evidence… [p]roof of this unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item.” Id.2

The Court cites that the foundation of establishing the requirements of a proper chain of custody include “identify[ing] the link” and “with regard to each link's possession of the item: ‘(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition.’.” Id. Again, one way to establish the proper foundational elements of a chain of custody, as stated in Holton, is to solicit direct testimony of each link. However, as shown supra, the Court also made a point to highlight, in situations where there is no “direct testimony” of a link in the chain of custody, that element of the chain can be established by circumstantial evidence – that the link at issue would just be “weak” and not missing. Id. It has been consistently held that a “weak” link does not make the evidence inadmissible, but merely creates a question of credibility and weight for the factfinder. Holton at 920. “While each link in the chain of custody must be identified, it is not necessary that each link testify in order to prove a complete chain of custody. Harrison v. State, 650 So.2d 603 (Ala.Crim.App.1994).” Reynolds v. State, 114 So.3d 61, 118 (Ala.Crim.App., 2010)

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Once a proponent of the evidence has identified the links3 in a chain, the Alabama Court of Criminal Appeals has held that, “[t]angible evidence of crime is admissible when shown to be ‘in substantially the same condition as when the crime was committed.’ And it is to be presumed that the integrity of evidence routinely handled by governmental officials was suitably preserved ‘[unless the accused makes] a minimal showing of ill will, bad faith, evil motivation, or some evidence of tampering.’ If, however, that condition is met, the Government must establish that acceptable precautions were taken to maintain the evidence in its original state.” Lee v. State, 898 So.2d 790, 847 (Ala.Crim.App.,2001), quoting Moorman v. State, 574 So.2d 953, 956–7 (Ala.Cr.App.1990). “‘The undertaking on that score need not rule out every conceivable chance that somehow the [identity] or character of the evidence underwent change. “ ‘[T]he possibility of misidentification and adulteration must be eliminated,’ we have said, ‘not absolutely, but as a matter of reasonable probability.” So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in the light of surrounding circumstances.’ ” Moorman v. State, 574 So.2d 953, 956-57 (Ala. Crim. App. 1990) (quoting United States v. Roberts, 844 F.2d 537, 549-50 (8th Cir. 1988), quoting in turn United States v. Anderson, 654 F.2d 1264, 1267 (8th Cir. 1981), quoting in turn United States v. Lane, 591 F.2d 961 (D.C. Cir. 1979)).” Lewis v. Gordy, 2017 WL 741144, at *8 (M.D.Ala., 2017). Additionally, “’evidence that an item has been sealed is adequate circumstantial evidence to establish the handling and safeguarding of the item.’ Lane v. State, 644 So.2d 1318, 1321 (Ala.Crim.App.1994).” Reynolds at 118.

In establishing chain of custody, judicial precedent has recognized that there is not a one-size-fits-all process. “Although the ideal practice would be for one person to maintain exclusive and constant control of the [evidence], these rules are made for practical people who deal with such evidence as part of day to day routine. The chain of custody requirements aim at a ‘reasonable probability’ that there has been no tampering; they are not intended as an obstacle course or a walk through a legalistic mine field.” Blanco v. State, 485 So.2d 1217, 1220 (Ala.Crim.App.1986). “The totality of the circumstances test is applied to alleged deficiencies in a chain of custody.’ Whitt v. State, 733 So.2d 463, 473 (Ala.Crim.App.1998).” Shaw v. State, 207 So.3d 79, 102–03 (Ala.Crim.App., 2014), quoting Blanco v. State, 485 So.2d 1217, 1220 (Ala.Crim.App.1986). For ADFS, multiple people will touch a piece of evidence as it moves through the analytical process and storage. The courts have consistently recognized, “’when each witness who does testify accounts for the integrity of the evidence and there is no contention that the evidence was contaminated or altered in any way, there is no error in the admission of the evidence even though one link in the chain does not testify.’ Snowden, 574 So.2d at 964.” Hill v. State, 586 So.2d 293, 294 (Ala.Cr.App.,1991). See also Lane at 1321 (Because one ADFS’ employee’s testimony identified another ADFS employee as a link and tended to show each criterion with regard to that employee’s possession of the evidence, the fact that she did not testify was only a weak, and not a missing, link in the chain of custody, and a weak link affects only the weight and credibility of the evidence, not its admissibility); Revis v. State, 101 So.3d 247, 288 (Ala.Crim.App.,2011)(Where a link in the chain of custody did not testify, the Court held, “This link constitutes a weak link, because although each link must be identified by the State's evidence, it is not necessary that there be testimony from each link in order to prove a complete chain of custody.”) Nix v. State, 747 So.2d 351, 355 (Ala.Crim.App.,1999)(Although a link in the chain did not testify regarding the handling, the State offered sufficient evidence to show as it was sealed and labeled, that the evidence was in the same condition it was in when it was retrieved from the scene.); Knight v. State, 622 So.2d 426, 429–30 (Ala.Cr.App.,1992(Although an ADFS employee did not testify as a link in the chain, the State established a chain of custody sufficient to authenticate that item.); Ex parte Williams, 548 So.2d 518, 520 (Ala.,1989).

Following the AL Supreme Court’s decision in Holton, the Alabama Legislature addressed a certain type of evidence in a criminal trial when it enacted a statute directly intended to apply to the admission of physical evidence. Alabama Code (1975), § 12-21-13, states, “[p]hysical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence.” AL Code Ann. §12-21-13 (1995). In interpreting §12-21-13, the Alabama Supreme Court held, “This statute, by its terms, applies only to ‘[p]hysical evidence connected with or collected in the investigation of’ the charged crime. To invoke the statute [§12-21-13] the proponent of the evidence must first establish that the proffered physical evidence is in fact the very evidence ‘connected with or collected in the investigation.’” Hale v. State, 848 So.2d 224, 228 (Ala.,2002).

However, a limiting aspect of the application of §12-21-13 to the analysis of chain of custody in the legal context is that the statute doesn’t apply universally to all types of evidence in a criminal case. Outside of the definitional requirement that it be “physical” evidence, if the condition of the evidence is at issue, §12-21-13 is inapplicable. This is clear from the decision in Hale where the Court stated, quoting Lee v. State, 748 So.2d 904, 913 (Ala.Crim.App.1999), “[t]he evidence in Lee's case cannot be admissible under § 12–21–13, Ala.Code 1975, because no witness directly testified at trial that the substance tested by [DFS] was the same substance Lee had sold to Larimer. Moreover, the condition of the substance, i.e., whether it was a cocaine, was the crux of the case. Therefore, because there were missing links in the chain of custody, the trial court erred in admitting the substance into evidence over Lee's chain-of-custody objection.” As relevant to ADFS, this means the proponent of evidence (prosecution or defense), must be able to identify the physical evidence up to the point the evidence is submitted to ADFS. Otherwise, §12-21-13 “does not apply to eliminate the need of the [proponent of the evidence] to prove an unbroken chain of custody.” Id. At 229.

  • 1https://legal-dictionary.thefreedictionary.com/Chain+of+Custody
  • 2One exemption to standard chain of custody requirements which is specifically applicable to ADFS are the provisions of Alabama Code (1975) §12-21-300. See Hale v. State, 848 So.2d 224, 231 (Ala.,2002)(holding “Section 12–21–300 preempts the traditional chain of custody predicate law for this evidence once it was received by DFS in this case.”
  • 3Through direct testimony, circumstantial evidence, or submission of a copy of the ADFS chain of custody pursuant to Alabama Rules of Evidence, Rule 803(6) and testimony by a qualifying person with knowledge.

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