360 Degree Chain of Custody
Written by Shawn Henderson   

Rethinking the traditional, linear view of chain of custody in evidence management

This article appeared in the May-June 2021 issue of Evidence Technology Magazine.
You can view that full issue here.

REGARDLESS OF WHERE YOU FIT on the political spectrum, the cultural environment for law enforcement and investigative work is changing across the country. For most of our history, and for much of the population, trust in law enforcement was presumed—and the work product of law enforcement investigations was rarely challenged. In that environment, chain of custody was almost a binary issue: you either have it or you don’t.

As cultural assumptions change, it’s important to meet these issues head on, and to build public trust and confidence where trust is lacking. A great place to start is chain of custody.

Fortunately for law enforcement, forensic science has evolved even as public trust has declined. Trusted forensic processes have been subjected to the scrutiny of the scientific method and standardization. Forensic investigative work is increasingly being performed by trained forensic scientists and less by detectives working all aspects of an investigation. Performed under appropriate conditions, forensic evidence can yield objective truth without bias or conjecture. We’ve reached a balancing point where even if the public doesn’t trust law enforcement, they can trust the science. In this context, chain of custody is more important now than at any point in history.

As Strong as the Weakest Link
Appropriately obtained, collected, preserved, and analyzed forensic evidence possesses unique potential. It possesses the dispassionate potential of objective truth. It possesses the potential to scientifically link a specific person to a specific place or a specific thing. It possesses the potential to exonerate the innocent and to convict the guilty. With all this potential power and utility, there is one simple factor that can reduce it all to meaningless packages on a shelf: chain of custody.

Chain of custody is a fundamental principle of evidence management. The old adage about a chain only being as strong as the weakest link is true, especially when you’re talking about evidence management and chain of custody. Without a strong chain of custody, critical case evidence loses its value and character as evidence, becoming nothing more than a storage problem. A strong, secure chain of custody safeguards the integrity of evidence and ensures the equitable delivery of justice.

In our justice system, chain of custody can be the difference between true justice or a miscarriage of justice. Since chain of custody is so foundational to both justice and evidence management, it’s important to think critically about chain of custody to ensure the integrity of our evidence. It’s also important to remember that this is more than a piece of paper or a taped and sealed package. There are lives impacted and affected by the cases they represent.

A New Point of Attack
With the evolution of forensic science, it’s become increasingly difficult to challenge the science behind the evidence, or the analysis of the evidence by forensic laboratories. Scientific processes, conducted in a lab and executed appropriately, leave far less room for doubt than field processes. As an anecdotal example, look at blood alcohol specimen analysis versus traditional breath alcohol testing equipment. When our agency switched from breath specimens to blood draws, our conviction rates on alcohol offenses increased dramatically. A lot of this was directly correlated to the switch to a more scientifically validated lab analysis rather than field testing by a technician.

If the primary objective for a defense attorney is to convince a judge or jury that reasonable doubt exists to convict their client, then it’s not surprising that they will attack the elements of a case at the weakest point. If probable cause and testimony is solid, then the most reasonable place to build doubt centers on the evidence. If the science and collection of evidence is solid, the path to doubt narrows. That leaves one obvious place to turn, and that is the custody of the evidence as recorded in the chain of custody document. As with the rest of the investigation and prosecution, the burden of proof remains with the state. It’s our job to ensure that the chain of custody for that evidence is accurate, complete, transparent, and reflective of the history and integrity of evidence presented in court.

Traditional Chain of Custody
Chain of custody has a history as old as jurisprudence. Most people today view chain of custody as a piece of paper that documents the who, what, when, where, and how about the history of each piece of evidence. That perception of chain of custody is far too limited to meet the current needs of the justice system. In today’s cultural climate, a strong chain of custody is vital in establishing evidence as credible, building trust in the system, and operating transparently.

To see why this makes sense, it helps to look a little deeper at the fundamental and functional elements that comprise a chain of custody. The historical and legal definition of chain of custody is pretty easily broken down into three distinct elements.

Chain of custody is:

  • the state’s record to establish and prove that a particular item of evidence
  • can be positively identified as the actual item used in, or directly related to the alleged offense;
  • and that the item has not been materially altered, changed or been tampered with during custody.

It’s ostensibly simple, but each clause carries significant implications for law enforcement and evidence integrity. It is a document, but it is also an environment, an obligation, and a declaration of integrity that can be demonstrated. Just from the definition of chain of custody, you can determine that a linear historical chain of custody document is insufficient to prove each of the elements required for an actual chain of custody. That piece of paper can cover the chain, but not the custody.

Missing Links: The Chain, Without Custody
A linear chain-of-custody record captures most of the chain, but misses several critical links related to custody. Ask yourself the question, is it possible to have a pristine and complete chain of custody document while storing your evidence in an unlocked hall closet that can be accessed by everyone in your department? Or is it possible to have that same pristine record and store evidence under conditions that grow mold like a mushroom factory? If we’re honest with ourselves the answer is Yes.

Most traditional chain of custody documentation fails to capture some of the most critical information required to prove a true chain of custody. This leaves a lot of chain links scattered on the floor. The failure point of traditional chain-of-custody documentation falls into three main areas:

1) Security. Without accurate documentation of security practices and historical access to evidence storage areas, we can’t prove an item has not been materially altered, changed, or tampered with during custody. If we can’t prove who had access to the item, we can’t attest to the fact that no one else could have accessed or altered the item. The security and integrity of that item extends from the package it was sealed in, all the way to the doors that limit access to the area where the item was stored.

2) Storage Environment. Without accurate documentation of storage conditions, we can’t prove that an item has been stored appropriately during custody. Some of our most critical evidence—items that possess the potential for forensic analysis, typically most biological evidence—requires storage in a temperature-controlled environment and packaging that eliminates the potential for cross contamination.

3) Accountability. Without accurate documentation of accountability processes, such as regular inspections and annual audits and inventories, we can’t prove that we’ve stored and managed the item the way we say we do in our policies and procedures. Under scrutiny of the courts, our practices trump our policies and procedures every time. When we don’t do what we say we do, we lose credibility and integrity in one fell swoop.

The Case for a 360° Chain of Custody
So, it might be time to take a second look at the way we think about chain of custody documentation. At the Evidence Management Institute, we believe in a systematic re-defined chain-of-custody model that we call the 360° Chain of Custody. The concept is not too complicated. It’s based on the principle that chain of custody documentation simply needs to cover both chain and custody. Traditional chain-of-custody documentation is still a critical component of the process. We absolutely need to know each who, what, when, where, why, and how for every movement and turn while evidence is in our custody; but we don’t stop there.

A 360° Chain of Custody includes traditional chain-of-custody documentation, but also incorporates an account of all the documentation processes that create the item custody environment. It’s easier to look at a visual depiction of what we’re talking about rather than try and describe it word-for-word:

The Elements of a 360° Chain of Custody
A 360° Chain of Custody is essentially comprised of the fundamental elements of solid evidence management practices and principles. Personally, after retiring from law enforcement, I was ready to stop using acronyms for everything, but here’s one that fits the definition and hopefully will help you remember the basic elements of a 360° Chain of Custody.

360° Chain of Custody is like pasta, which is amazing as a meal but awful if it’s just noodles. In our case, PASTA is proper packaging, accountability processes, storage environment, traditional documentation, and access logs and security.

Proper Packaging. Since custody begins at the collection point, the chain should start in the same place. An evidence package is a microenvironment for appropriate evidence storage. Proper packaging is both a chain of custody document, a storage environment, and a first-line security measure.

Accountability Processes. Documented accountability processes demonstrate the integrity of the entire system in three critical areas. Inventories demonstrate that we know what we have, and we know where to find it. Audits demonstrate we know what to do, and that we do what we say we do. Inspections demonstrate that we’re paying attention to the things that are important, and that we detect and address issues when we find them.

Storage Environment. Documented storage environment conditions demonstrate that evidence has been stored in an appropriate environment under conditions that are favorable for the long-term preservation of the forensic value of the evidence.

Traditional Documentation. The accurate and complete document that tells the story of a piece of evidence from collection through disposition. Quality chain-of-custody documentation provides all of the whos, whens, wheres and whys related to the life cycle of that particular piece of evidence.

Access Logs and Security. Without accurate documentation of access to stored evidence—whether recorded manually or digitally—it’s simply not possible to attest to the security of a storage environment. Even for an agency where there is only one person, one room, and one key, it is critical to identify who has accessed or who could have accessed stored evidence areas. Memory, tradition ,and folklore are insufficient proof of security. Courts like proof.

In life as it is in evidence, pasta requires sauce. Right now, most agencies are relying on a steady diet of plain noodles to meet their chain-of-custody needs. We simply need more than noodles to meet the changing environment of law enforcement investigations in order to preserve the potential of the evidence we have in our custody.

Secure the Chain
Ultimately, chain of custody is about the fundamental integrity of the justice system. When we can establish and prove each of the elements of the accepted, legal definition of chain of custody through our documentation and practices, then we can truly testify to the merits of our efforts as evidence custodians.

It’s absolutely important to do the right thing when it comes to evidence management, but when it goes to court—where your methods and practices are rightfully scrutinized—it’s the documentation that speaks the loudest. It’s the difference between talking the talk and walking the walk. Right now, the 360° Chain of Custody is the path less traveled, but it’s the path toward better evidence management and the strongest possible chain of custody for your evidence.


About the Author
Shawn Henderson is a former police supervisor and educator. He is the Executive Director of the Evidence Management Institute, providing training and consulting services to law enforcement agencies and corporate clients in the area of evidence management. Shawn currently resides in Texas with his wife Michelle and his daughters Abby and Avery. Outside of his passion for evidence management, Shawn loves finding new regional barbecue joints and enjoys freelance writing about Texas/Red Dirt music.

 
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