Sunday, March 1, 2015

Before I get to today's post, I just saw that Hae Min Lee's brother posted the following comment in response to Friday's post on the Serial subreddit:

TL:DR.... But After the trial ended, my grandpa and I went down the police station to pickup Hae's car. I am almost 100% sure that it was turn signal lever. I remember it pretty well because I was supposed to drive her car back home. But since the turn signal lever was HANGING/DANGLING, my grandpa drove it home. I was a new driver and was uncomfortable driving it without a turn signal.

You'll recall that in Friday's post, I speculated that Detective Kevin Forrester likely misspoke at Adnan's second trial when he claimed that the lever that was broken in Lee's 1998 Nissan Sentra was on the left side of the steering column. After all, prosecutor Kathleen Murphy claimed that, "[i]n order for H[ae] Lee to kick this wiper lever, we know she was in that passenger seat." For Murphy to argue that the "broken" lever was only consistent with Lee being in the passenger seat, the broken lever had to be on the right side of the steering column and not the left side as Forrester claimed, right? Well...wrong, according to Lee's brother. 100% wrong because the broken lever was the turn signal lever, and the manual for the 1998 Sentra clearly shows the turn signal lever on the left side of the steering column at 2-2].

One last thing before I start today's post. If Lee's brother or anyone in her family is reading these posts, I hope you see that my posts are a genuine attempt to try to get closer to the truth of the horrible loss that you suffered because I think that the version told at trial doesn't come close to resembling it. I am very sorry for your loss.

With that, let's move to today's post:

I got a number of questions about one aspect of Friday's post regarding the question of whether the windshield wiper lever in Hae Min Lee's 1998 Nissan Sentra was in fact broken. In that post, I noted how a member of the Crime Lab took photographs of the steering column of the Sentra which didn't really show the lever being broken; they just showed it "hanging down in a downward angle." Therefore, sixteen days later, after the Sentra had been sent to a body shop that was possibly owned by Lee's uncle, two detectives filmed a demonstration in which one detective allegedly lifted the lever repeatedly, always resulting in the lever dropping when he let go.

In my post, I noted that the court likely would have deemed this video inadmissible if defense counsel objected on one of several grounds, including lack of chain of custody. I also noted that I really needed to see the photographs and video before I could say anything definitive. In response to this claim, I got some e-mails asking me to explain chain of custody and how it could have been the grounds for an objection regarding the video. In this post, I will do just that.

Federal Rule of Evidence 901(a) provides that

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

This is known as the authentication or identification requirement. Assume that the prosecution wants to admit a note that that it claims is a confession note written by the defendant. Before admitting the note, the prosecution would have to authenticate/identify the note, i.e., present evidence from which a reasonable juror could conclude by a preponderance of the evidence (50+%) that the defendant actually wrote the note. For a fuller explanation of authentication/identification, you can check out The Social Medium: Why the Authentication Bar Should Be Raised For Social Media Evidence the essay that my student (Charles White) and I recently published in the inaugural edition of the Temple Law Review Online.

Every state has a counterpart to Federal Rule of Evidence 901(a). See, e.g., Maryland Rule of Evidence 5-901(a). Moreover, every state has a chain of custody requirement that must be satisfied before real evidence can be authenticated/identified and admitted. One oft-cited Maryland case on chain of custody is Amos v. State, 400 A.2d 468 (Md.App. 1979).

In Amos, Gregory Martin Amos was convicted of conspiracy to distribute methamphetamine. At trial, the prosecution introduced two small packages that were (1) sold by Amos to undercover officer Trooper Michael H. Pasker; and (2) determined to contain methamphetamine by M. Patricia Sullivan. After he was convicted, Amos appealed, claiming that the prosecution failed to establish chain of custody. According to the Court of Special Appeals of Maryland,

To be admissible,...this "real evidence" must be in substantially the same condition that it was in at the time of the crime and must be properly identified....Although there is a natural inference or presumption of continuance in the same condition, that inference varies in each case with the nature of the subject matter and the time element.

Whether real evidence is in the same condition as at the time of the crime so as to permit admissibility is not entirely a discretionary matter with the court,...although the circumstances surrounding its safekeeping in that condition in the interim need only be proven as a reasonable probability....The proof negating the probability of changed conditions between the crime and the trial, is spoken of as proving the chain of custody, and in most instances is established by accounting for custody of the evidence by responsible parties who can negate a possibility of "tampering" and thus preclude a likelihood that the thing's condition has changed.

Although for purposes of admissibility the chain of custody authentication of evidence need not be beyond a reasonable doubt, it must create a reasonable probability of sameness, just as in a like instance it must preclude by reasonable probability, any tampering. The evidence here was never identified as being the same or similar to that obtained by Trooper Pasker, and instead of supporting an inference of sameness, the State threw out four conflicting possibilities in a multiple choice evidentiary game for judge and jury to choose from. The procedure either went

from Pasker to Sullivan; or,

from Pasker to [Trooper First Class Howard] Presnell to Sullivan; or,

from Pasker to [Chief Jay] Tobin to Sullivan; or,

from Pasker to Presnell to Tobin to Sullivan,

and in any of the four, the State would have its inference of sameness supported. But in the absence of both Presnell and Tobin, the only thing reasonably probable was that whatever Ms. Sullivan analyzed She Obtained from Tobin and returned to Pasker. Between Pasker and Sullivan there is far too much speculative possibility without the testimony of Presnell or Tobin to establish its identity.

So, the gist of the chain of custody requirement is that real evidence (or a facsimile of real evidence) can only be admitted if the proponent can establish that it is "in substantially the same condition that it was in at the time of the crime and...properly identified." This generally consists of testimony or proffers from everybody who handled the evidence and the security of the evidence at each link in the chain.

How does the government typically deal with automobiles in its possession to satisfy chain of custody and allow for the admission of the contents of such automobiles? Consider this excerpt from State v. Moves Camp, 286 N.W.2d 333, 338 (S.D. 1979):

Additionally, defendants have failed to prove their contention that the chain of custody of the car was not sufficient to allow introduction of its incriminating contents into evidence. The blue Ford in question was taken to the garage at the Pennington County jail. The car was sealed with evidence tape and locked behind doors with electric locks. Deputy Pesecka personally observed all of this. The car was transported to Kadoka by one Mr. Wilcox who testified that the tape had been temporarily removed to prepare the automobile for towing, that it was resealed before towing, and that it was driven directly to and locked within the Jackson County garage in Kadoka. These procedures satisfy us that a prima facie showing has been made that the objects were properly identified and in the same condition as when the car was taken into custody.

Obviously, chain of custody in connection with Lee's Sentra was a good deal more complicated because it was released from the government's possession to the custody of a body shop. The closest analogue that I could find to how Lee's Sentra was handled was Benton v. Commonwealth, 2008 WL 4692361 (Ky. 2008), a case in which the prosecution introduced DNA evidence recovered from cigarette butts found in a GMC truck. Here was the court's discussion of chain of custody:

Although no police record for recovery of the evidence was produced in this case, formal documentation of the chain of custody is not required....Both the officers and the body shop owner were able to testify as to the chain of custody, including Saylor's testimony regarding the normal security procedures at the yard. Such testimony is acceptable as proof that the cigarette butts were unchanged from the date the vehicle was discovered. Further, there is no requirement that the proponent of proffered evidence eliminate all possibility of tampering, so long as there is a reasonable probability that the evidence has not been altered in any material respect....Here, where the body shop owner was able to testify that the truck was locked in the body shop, such burden has been met.

So, that's the type of chain of custody the prosecution would have needed to establish in connection with Lee's Sentra: How much manipulation/testing of the "broken" lever was done when Jay brought the detectives to the Sentra? How was the Sentra taken into government custody? What security measures were taken while the Sentra was in police custody? Who searched and retrieved evidence from the Sentra? Did anyone manipulate/test the lever while the Sentra was in government custody? How was the Sentra released from government custody? Who took it to the body shop? Was it a body shop that was in fact owned by Lee's uncle? What were the security measures at its new location? Did anyone manipulate/test/try to fix the lever at the body shop? Why was the Sentra at the body shop? Were other parts of the car damaged? Were other things repaired at the body shop? Did the detectives manipulate/test the lever before they did their video demonstration? At the start of the video demonstration, was the lever in exactly the same position that it was in when the Crime Lab photos were taken 16 days earlier? Etc.

Now, it's possible that the government could have established chain of custody, but I doubt it. After all, the best that Detective Forrester could muster at trial was that the Sentra was at a body shop that might have been owned by Lee's uncle. If defense counsel really put the prosecution to its paces, I doubt that it would have provided enough good answers to the above questions to establish chain of custody. This conclusion is based on the assumption that defense counsel did not stipulate to the admission of the video, which would have obviated the need for the prosecution to be prepared to establish chain of custody at trial. After all, there's no way that defense counsel would have stipulated to the admission of the videotape, right?

And there's no way that the prosecutor would have claimed the "broken" lever was consistent with Lee kicking it from the passenger seat if the lever in fact were on the left of the steering column, right? And there's no way that the police actually removed the wrong lever -- the windshield wiper lever from the right of the steering column -- to send to the Trace Analysis Unit for testing, right?

Right?

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/03/i-got-a-number-of-questions-about-one-aspect-offridays-postregarding-the-question-of-whether-the-windshield-wiper-lever-in-ha.html