May 10, 2009 Attack claims of reliable and unbroken drug chain of custody
The criminal justice system is so overgrown that crime evidence is bound too often to get mixed up, misplaced, and contaminated.
For drug prosecutions, the suspected drugs may pass through several hands before being tested by a chemist. Often, the seizing police officers have the alleged controlled dangerous substances field-tested and sealed. From there, the suspected drugs may go to a drug vault at the police station, by the seizing officer or by another officer. From there, a courier may bring the alleged drugs to a storage container at the chemist’s lab. Sometime thereafter, the alleged drugs will go to the chemist, whether the chemist gets them from the drug vault or has someone bring them to the chemist. Consequently, usually more people than the merely the seizing officer and chemist are in the chain of custody.
Prosecutors and cops can make much about heat-sealed bags keeping alleged drugs tamperproof. Is that so? What if the seizing and packaging police officers contaminate the alleged drugs — before sealing is complete — with drugs they touched earlier in the day? What happens if a police officer later opens the plastic bag of alleged drugs, ever so carefully so as to avoid detection, and steals some to sell? That is another opportunity for the alleged drugs to be tainted or contaminated. The chemist who opens the bag of alleged drugs might have contaminants everywhere — on clothes, hands, hair and in the air — to cause a positive chemist’s eading for drugs even if the alleged drugs contained no controlled dangerous substances at all immediately before being seized.
For the foregoing reasons, it is sad that Virginia’s intermediate appellate court two months ago signaled to judges that little evidence is needed in court to prove chain of custody in drug cases. Hargrove v. Virginia, 53 Va. App. 545 (2009).
In part, Hargrove says:
"’A court need not hear, however, from every witness who physically handled the samples for the certificate [of analysis] to be admissible. Nor must the Commonwealth’s evidence ‘exclude every conceivable possibility of substitution, alteration, or tampering.’" Anderson v. Commonwealth, 48 Va. App. 704, 717, 634 S.E.2d 372, 378 (2006) (quoting Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357, 4 Va. Law Rep. 502 (1987)), aff’d, 274 Va. 469, 650 S.E.2d 702 (2007), cert. denied, 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008). ‘It need only provide "reasonable assurance" that the evidence obtained by the police was the same evidence tested.’ Id. (quoting Vinson, 258 Va. at 469, 522 S.E.2d at 177) (emphasis added)."
Hargrove v. Virginia, 53 Va. App. 545 (2009).
Of course, if the law and judges required prosecutors in drug cases to present solid evidence of chain of custody, the court system would become so backlogged that I might finally reach part of my wish of legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory sentencing, eliminating the death penalty, and eliminating per se rules for drunk driving cases. Jon Katz