See also: AUTHENTICATION; BLOOD TESTS
EXHIBITS.

1.  Generally

Proving a chain of custody is a method of authenticating certain types of physical evidence which either have no unique identifying chracteristics or may have changed condition since the time of the events in question. A chain of custody "’indirectly establishes the identity and integrity of the evidence by tracing its continuous whereabouts.’"{footnote}Whitfield v. State, Del. Supr., 524 A.2d 13, 16 (1987) (quoting United States v. Zink, 10th Cir., 612 F.2d 511, 514 (1980)).{/footnote}

A chain of custody is composed of “links,” a “link” being anyone who handled the item.{footnote}Ex parte Holton, 590 So. 2d 918, 920 (Ala. 1991).{/footnote}  The offering party must identify each link from the time the item was seized up to the time of trial{footnote}United States v. Cardenas, 864 F.2d 1528, 1531-32 (10th Cir. 1989), cert. denied, 491 U.S. 909 (1989).
Demby v. State, 1997 Del. LEXIS 232 (drugs); State v. Lownes, 499 N.W.2d 896, 901 (S.D. 1993); Rosenbaum v. State, 915 P.2d 1200, 1202 (Wyo. 1996) (drugs).
But see 10 Del. Code § 4331 (prosecution need not produce at trial individuals who merely handle contraband during its transportation between law enforcement agency and the state laboratories, or those who handle the evidence after it has been tested); Demby v. State, 1997 Del. LEXIS 232 (holding that this statute does not violate defendant’s due crocess rights).{/footnote} and show, as to each link: “(1) receipt of the item; (2) ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) safeguarding and handling of the item between receipt and disposition.”{footnote}Imwinklereid, The Identification of Original, Real Evidence, 61 Mil. L. Rev. 145, 159 (1973), quoted in Ex parte Holton, 590 So. 2d 918, 920 (Ala. 1991).{/footnote}  Applying the strictest variation of this rule, an item is inadmissible if there is  a “missing link”–the offering party is unable to identify one of the “links” or prove each of the above three elements as to one of the links.{footnote}Ex parte Holton, 590 So. 2d 918, 920 (Ala. 1991).
But see § 3, infra.{/footnote}  Although this common law requirement is not mentioned in the federal rules,{footnote}See FRE 901.{/footnote} it has survived the enactment of those rules and their state counterparts. The rule is applied less stringently in civil cases than in criminal cases.{footnote}Woollet v. Hafner’s Wagon Wheel, Inc., 176 N.E.2d 757 (Ill. 1961).  {/footnote}

2.  When is a Chain of Custody Required?

An offering party may usually authenticate an object by simply having a witness identify it.  This foundation is sufficient where the item possesses unique identying characterists (e.g., a contract) and there is no reasonable concern about possible physical deterioration or tampering.{footnote}United States v. Abreau, 952 F.2d 1458, 1467 (1st Cir. 1992); U.S. v. Thomas, 54 F.3d 73, 82 (2d Cir. 1995) (no chain of custody required for fingerprint evidence); United States v. Hernandez-Herrera, 952 F.2d 342, 344 (10th Cir. 1991) (where "documents are uniquely identifiable and relatively resistant to change, the establishment of a chain of custody is not necessary").
State v. Woitkowski, 612 A.2d 1317, 1318 (N.H. 1992) (hold-up note in defendant’s handwriting, with his fingerprints, identified by two witnesses as note found at the scene of the crime admissible regardless of any breaks in chain of custody;  “where authentication is based on unique identification, chain of custody, at best, is relegated to a jury issue.”)
See also State v. Richey, 595 N.E.2d 915 (Ohio 1992) (no chain of custody required for samples of carpet recovered from scene of fire); State v. Watson, 684 P.2d 39, 40 (Utah 1984) (noting no  chain of custody  needed to show there had been no tampering with evidence because defendant’s unique hat and vest were identified by a witness).
E. Cleary, Mccormick On Evidence § 212 at 667 (3d ed. 1984); M. Graham, Federal Practice & Procedure: Evidence § 6822, at 854 n.6 (interim ed. 1992).{/footnote}  Some types of physical evidence, on the other hand, by their nature require that a chain of custody be shown, because they have no unique identifying characteristics and are therefore susceptible to commingling or mislabelling (e.g., drugs,{footnote}United States v. Godoy, 528 F.2d 281 (9th Cir. 1975) (holding that government must make a prima facie showing that drugs tested were same drugs and in the same condition as those seized from defendant).
Demby v. State, 1997 Del. LEXIS 232; State v. Moscillo, 649 A.2d 57 (N.H. 1994); Rosenbaum v. State, 915 P.2d 1200, 1202 (Wyo. 1996).
{/footnote} blood,{footnote}E.g., Nichols v. McCoy, 235 P.2d 412 (Cal. App. 1951)(blood sample inadmissible where sample taken at mortuary and not segregated from other blood samples at mortuary).
 See BLOOD-ALCOHOL TESTS; BLOOD GROUPS AND TYPES.{/footnote} unmarked weapons{footnote}Whitfield v. State, 524 A.2d 13, 16 (Del. Supr. 1987){/footnote}).

Some types of physical evidence by their nature are susceptible to tampering, contamination or natural deterioration and to be relevant must be preserved in their original state (e.g., tape recordings,{footnote}United States v. Carrasco, 887 F.2d 794, 802 (7th Cir. 1989) ("In the case of either an original or a duplicate tape the government may establish a foundation for accuracy and truth of the tape through ‘evidence of  a chain of custody and by the correspondence between the tape’s version of the events . . . and the recollections of eyewitnesses to those events; in this circuit, either variety of evidence can establish a tape’s foundation.’ ").
Butler v. U.S., 649 A.2d 563, 567 (D.C. 1994).{/footnote} films,{footnote}People v. Kabala, No. 1-0-=2163 (Ill. App. Ct. 1992) (film held inadmissible).{/footnote} victims’ clothing{footnote}Robinson v. Commonwealth, 183 S.E.2d 179 (Va. 1971)(rape victim’s blouse and panties as well as scientific analysis therefo held inadmissible where there was no testimony as to steps taken to avoid contamination).{/footnote}). Such evidence may be authenticated by having a witness testify from personal knowledge that the item is in substantially the same condition.{footnote}U.S. v. Ricco, 52 F.3d 58, 61-62 (4th Cir. 1995) (real evidence admissible “so long as there is sufficient proof that the evidence is what it purports to   be and has not been altered in any material respect”); United States v. Carrasco, 887 F.2d 794, 802 (7th Cir. 1989) ("In the case of either an original or a duplicate tape the government may establish a foundation for accuracy and truth of the tape through ‘evidence of  a chain of custody and by the correspondence between the tape’s version of the events . . . and the recollections of eyewitnesses to those events; in this circuit, either variety of evidence can establish a tape’s foundation.’ "); United States v. Scott, 19 F.3d 1238, 1245 (7th Cir.), cert. denied, 115 S. Ct. 163 (1994); United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir.), cert. denied, 502 U.S. 854 (1991); United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir.), cert. denied, 491 U.S. 909 (1989); United States v. Johnson, 977 F.2d 1360, 1367 (10th Cir. 1992).
CHECK Siegal v. American Honda Motor Co., Inc., 921 F.2d 15 (1st Cir. 1990)(motorcycle excluded because handlebar intentionally altered after parties’ inspection of it, and while in plaintiff’s exclusive control);{/footnote}  Otherwise, such evidence must be authenticated by showing a chain of custody.{footnote}United States v. Abreu, 952 F.2d 1458, 1467 (1st Cir.), cert. denied, 503 U.S. 994 (1992); United States v. Carrasco, 887 F.2d 794, 802 (7th Cir. 1989) ("In the case of either an original or a duplicate tape the government may establish a foundation for accuracy and truth of the tape through ‘evidence of  a chain of custody and by the correspondence between the tape’s version of the events . . . and the recollections of eyewitnesses to those events; in this circuit, either variety of evidence can establish a tape’s foundation.’ ").{/footnote}

3.  Degree of Certainty Required

 Under FRE 901 and its state counterparts, evidence may be authenticated by merely adducing "evidence sufficient to support a finding that the matter in question is what its proponent claims." (See 4, infra).  In determining whether an adequate chain of custody has been proven, the trial court must consider the nature of the article in issue, the circumstances of its preservation and custody, and the likelihood of others tampering with it.{footnote}Hoover v. Thompson, 787 F.2d 449, 450-51 (8th Cir. 1986).
Loper v. State, 1994 Del. LEXIS 15.
CHECK United States v. Gay, 774 F.2d 368, 374 (10th Cir. 1985).{/footnote} A presumption of regularity applies to law enforcement officers’ handling of exhibits.{footnote}United States v. Jefferson, 714 F.2d 689, 695-96 (7th Cir. 1983; United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir.), cert. denied, 502 U.S. 854 (1991);
State v. Wynia, 754 P.2d 667, 670-71 (Utah Ct. App.), cert. denied, 765 P.2d 1278 (Utah 1988).{/footnote}

It is not necessary for the prosecution to eliminate every possibility of tampering.{footnote}United States v. Hon, 904 F.2d 803, 810 (2d Cir. 1990); United States v. Kelly, 14 F.3d 1169, 1175 (7th Cir. 1994); United States v. Johnson, 977 F.2d 1360, 1367 (10th Cir. 1992) (chain of custody “need not be perfect”).
 Crisco v. State, 1997 Ark. LEXIS 282; Demby v. State, 1997 Del. LEXIS 232 (describing requirement as a “lenient burden”).{/footnote} The trial court need only be satisfied that in reasonable probability the article has not been changed in any important respect.{footnote}United States v. S.B. Penick & Co., 136 F.2d 413, 415 (2d Cir. 1943); United States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir. 1982); Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1154-55 (5th Cir. 1981) (holding trial court’s exclusion of blood                                                                                 alcohol evidence because of break in  chain of custody  was abuse of discretion);  Hoover v. Thompson, 787 F.2d 449, 451 (8th Cir. 1986); United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir.), cert. denied, 502 U.S. 854 (1991); United States v. Matta-Ballesteros, 71 F.3d 754, 768 (9th Cir. 1995).
Demby v. State, 1997 Del. LEXIS 232; Cheek v. Avco Lycoming Division, 56 Ill. App. 3d 217, 371 N.E.2d 994 (5th Dist. 1977) (airplane engine parts inadmissible because no longer in same condition); State v. Dillon, 447 S.E.2d 583 (W. Va. 1994).{/footnote} Deficiencies or gaps in the chain of custody ordinarily go to the weight, not the admissibility, of the article.{footnote}United States v. Abreu, 952 F.2d 1458, 1467 (1st Cir. 1992); United States v. Grant, 967 F.2d 81, 83 (2d Cir. 1992), cert. denied, 122 L. Ed. 2d 684, 113 S. Ct. 1293 (1993); U.S. v. Ricco, 52 F.3d 58, 61-62 (4th Cir. 1995); United States v. Williams, 44 F.3d 614, 618 (__ Cir. 1995); United States v. Jefferson, 714 F.2d 689, 695-96 (7th Cir. 1983); United States v. Johnson, 977 F.2d 1360, 1367 (10th Cir. 1992).
Crisco v. State, 1997 Ark. LEXIS 282; State v. Poirier, 1997 Me. LEXIS 84 (applying Me. R. Evid. 901, court held that break in chain of custody goes to weight but “it does not inexorably affect admissibility”; breath test kit admissible even though police department secretary who police officer asked to mail kit to chemist did not testify); State v. Wynia, 754 P.2d 667, 670-71 (Utah Ct. App.), cert. denied, 765 P.2d 1278 (Utah 1988).
See also Ex parte Holton, 590 So. 2d 918, 920 (Ala. 1991) (“weak link” exosts where circumstantial evidence must be relied upon; existence of weak link goes to weights rather than admissibility of item).
But see Watson v. Fishbach, 6 Ill. App. 3d 166, 284 N.E.2d 720 (2d Dist. 1972), rev’d on other grounds, 54 Ill. 2d 498 (blood sample excluded due to significant discrepancies in and omissions from the foundation testimony).{/footnote}  Proof of the  chain of custody for common, interchangeable items such as drugs or blood must be more exacting than for most other types of physical evidence.{footnote}Crisco v. State, 1997 Ark. LEXIS 282 (drugs should have excluded where descriptions of their appearance by police officer and chemist differed significantly).{/footnote}

4.  Effect of FRE 901

Under FRE 901 and its state counterparts, evidence may be authenticated by merely adducing "evidence sufficient to support a finding that the matter in question is what its proponent claims." The chain of custody rule is not mentioned in the Rule or the comments to the Rule.  The courts have found no inconsistency between Rule 901 and the chain of custody requirement, however.{footnote}United States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir.), cert. denied, 459 U.S. 874 (1982)
Ex Parte State of Alabama, 690 So. 2d 1222 (Ala. 1996) (in dicta, stating that chain of custody rule unchanged by Ala. R. Evid. 901); State v. Knuckles, 473 S.E.2d 131 (W. Va. 1996) (the chain of custody rule is “simply a variation” of W. Va. R. Evid. 901.”){/footnote}

5. Appeal

An objection to the failure to establish the chain of custody must be made at trial or it is waived on appeal.{footnote}Howell v. State, 610 A.2d 725 (Del. 1992); People v. Polk, 167 N.E.2d 185 (Ill. 19__); People v. Morgan, 358 N.E.2d 280, 285 (Ill. App. Ct. 1976).{/footnote}  Whether a proper chain of custody has been established is left to the sound discretion of the trial court. A trial court’s ruling will not be reversed absent an abuse of discretion.{footnote}Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1154-55 (5th Cir. 1981) (holding trial court’s exclusion of blood alcohol evidence because of break in  chain of custody was abuse of discretion).
State v. Knuckles, 473 S.E.2d 131 (W. Va. 1996) (affirming admission of evidence); Rosenbaum v. State, 915 P.2d 1200, 1202 (Wyo. 1996) (affirming).{/footnote}

Bibliography

Gianelli, Chain of Custody and the Handling of Real Evidence, 20 Am. Crim. L. Rev. 527 (1983).
Imwinklereid, The Identification of Original, Real Evidence, 61 Mil. L. Rev. 145 (1973).