By Mark A. Ober
When law enforcement collects evidence during the course of an investigation, that evidence must be secured prior to trial. Law enforcement agencies have procedures in place regarding the collection, storage, transfer, and testing of evidence. These safeguards exist to protect the integrity of the evidence used to secure convictions.
At trial, when the state introduces physical items into evidence that have been in the custody of law enforcement agencies, the state must lay a proper foundation to establish the admissibility of the evidence. In most cases, that foundation does not include the introduction of testimony by every witness in the chain of custody. “Relevant physical evidence is admissible unless there is an indication of probable tampering.”
Peek v. State, 395 So. 2d 492, 495 (Fla. 1980). Although it is important that law enforcement agencies maintain a proper chain of custody, the state is not normally required to prove that complete chain of custody at trial. See Dodd v. State, 537 So. 2d 626 (Fla. 3d DCA 1988).
In some cases, there may be a break in the chain of custody. “A mere break in the chain of custody is not in and of itself a basis for exclusion of physical evidence.” Bush v. State, 543 So. 2d 283, 284 (Fla. 2d DCA 1989). If defense shows that there has been a probability of tampering, the state must prove a complete chain of custody before evidence can be admitted. See Floyd v. State, 850 So. 2d 383 (Fla. 2002); State v. Taplis, 684 So. 2d 214 (Fla. 5th
DCA 1996); Hildwin v. State, 141 So.
3d 1178 (Fla. 2014). A probability of tampering is more than a bare allegation, Terry v. State, 668 So. 2d 954 (Fla. 1996), or a possibility, Robinson v. State, 561 So. 2d 1264 (Fla. 3d DCA
1990). For example, the admission of evidence that has been repackaged, if explained by the testifying witness, is not an error. See Garcia v. State, 873 So. 2d 426 (Fla. 3d DCA 2004);
Robinson v. State, 561 So. 2d 1264
(Fla. 3d 1990). If the defense is able to meet their initial burden of showing a probability of tampering, the burden would then shift to the state to prove that tampering did not occur. Murray v. State, 838 So. 2d 1073 (Fla. 2002). At this point, the state may need to proceed with proving the complete chain of custody.
As your state attorney, I seek justice. Justice requires that convictions be based upon sound, reliable evidence. The integrity of our evidence supports the integrity of our convictions.
