Criminal defense attorneys or LEO's

Sac Arrow

Sac Arrow

Touchdown! Greaser!
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A detective checks out an item of evidence, takes it home, and forgets about it. He retires. He still has the evidence, sealed in the evidence bag. Chain of custody broken?
 
Well, my last criminal case was in 1994, but...

Maybe. It will definitely be subjected to a chain of custody attack but, as usual, the devil is in the details. It might be ruled inadmissible by the judge; or it may be ruled admissible by the judge, but rejected by the jury.
 
Does the length of time matter? A few days or a few years?
 
If it’s involved with LSU or U of Michigan football, it’s definitely admissible, especially in South Carolina or Kalamazoo.
 
Why he took it home may be a factor.
 
Sac Arrow said:
A detective checks out an item of evidence, takes it home, and forgets about it. He retires. He still has the evidence, sealed in the evidence bag. Chain of custody broken?
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I worked as a supervisor and an evidence technician over my career. Since there is basically no way the retired officer can explain why departmental evidence procedures were not followed or testify that no one else didn’t have access to the unsecured evidence, most courts would rule in favor of defendant during evidentiary hearing.

That doesn’t mean the case would be dismissed or other evidence would not be admitted. just that piece of evidence excluded.
 
I’m not a lawyer. I would think that the rules for lost, found, and abandoned property would apply. Simply because of the timeframe.

I would think that if the statute of limitations for whatever the evidence was collected for has expired, the evidence becomes excess and depending upon the nature of the evidence and how it was seized and whether the material itself was illegal to possess. There is a responsibility to return the property to the rightful owner if that is known.

Why don’t you submit a FOIA request for the departments policy for retaining and disposing of evidence?

The real question is was the policy followed?
 
Just to be clear it's for a book and set in California. The specific piece of evidence is a thermos full of whiskey sour, but it's never been tested for the presence of rohypnol, which could go far to clear the convicted defendant of murder. I don't want it to be sitting in county evidence locker, because, well, that would just be too easy.
 
Sac Arrow said:
Just to be clear it's for a book and set in California. The specific piece of evidence is a thermos full of whiskey sour, but it's never been tested for the presence of rohypnol, which could go far to clear the convicted defendant of murder. I don't want it to be sitting in county evidence locker, because, well, that would just be too easy.
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Since everything seems to be illegal in California, there’s your answer.
 
Sac Arrow said:
Just to be clear it's for a book and set in California. The specific piece of evidence is a thermos full of whiskey sour, but it's never been tested for the presence of rohypnol, which could go far to clear the convicted defendant of murder. I don't want it to be sitting in county evidence locker, because, well, that would just be too easy.
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You could put it in Bin 69 instead of 96, and have it found when the other case gets reopened. ;)

Edit: Don’t forget to blame @Clip4 …it was that screwup that got him promoted to supervisor. :rofl:
 
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Are detectives taking evidence home? Why?

I can see taking a document home to study. But what purpose would there be to taking an object anywhere other than to a lab capable of examining it?

I'm just a layman, but I would bet major departments have detailed policies on why evidence may be taken, where it can be taken, how long it can be kept, and how it must be safeguarded. Any deviation from policy would be a seam for the defense attorney to attack.

I would guess at a minimum a detective would need an approved safe in a locked room for that to be a habitual event.

AI knows.
 
Sac Arrow said:
Just to be clear it's for a book and set in California. The specific piece of evidence is a thermos full of whiskey sour, but it's never been tested for the presence of rohypnol, which could go far to clear the convicted defendant of murder. I don't want it to be sitting in county evidence locker, because, well, that would just be too easy.
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Then your resource should be a California criminal lawyer, preferably one who practices in the county where your case takes place. I suspect the basic chain of custody issues are the same in California as the more general rule that uses the circumstances to decide whether the answer is exclusion or weight (weight meaning the fact finder determines to what degree, if any to accept it).

Plus, your story has a twist. It's the defense which wants the evidence for defense purposes, which changes the picture substantially and raises additional issues of police credibility, intentional spoliation, and probably several others. That can get a bit complicated, so it kind of depends on how much reality you want.
 
midlifeflyer said:
Plus, your story has a twist.
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Yes… @midlifeflyer was the prosecuting attorney, who retired having never lost a case. He also knew about the critical evidence in the thermos, and that it was lost, but he’s been feeling guilty about it ever since. Fortunately, he comes out of retirement for one last case, and he knows his dying words will crack the case wide open, vindicating the falsely imprisoned man, who had actually studied for and passed the bar while in prison so that no one else would have to suffer the same fate. The final words? “Rosebud was the sled!”

Of course, let’s not forget about the old fat guy on a Kansas-built recumbent (steel is real!) who made this all possible. While minding his own business waiting at a red light, he noted two police officers in a foot chase, and since they were wearing full gear in 100-degree temperatures, they were obviously falling behind. So, risking life and limb, the cyclist crossed against the light (after verifying that there was no traffic) and took up the chase. He passed the police officers with a quick, “I got him,” rode up alongside the perpetrator, and gracefully slid off his bike while grabbing the ears of the perpetrator and bulldogging him to the ground. After some initial resistance, the perp noticed Woodworker’s Pattern Baldness on the cyclists left arm, and realized that while the cyclist’s pocketknife was safely ensconced in a belt sheath, it was probably sharp enough to shave off his long, golden locks within a matter of seconds, and since he valued those above all else, he gave up the struggle.

When the police officers arrived, they took a moment to catch their breath, and put the perpetrator in cuffs. The cyclist picked up his bike, and with a hearty, “heigh ho, iron steed!” he rode off into the sunset.

The perpetrator, who now looked like a Van Gogh painting with long, golden locks, confessed to numerous crimes, including the one that reopened case #69, resulting in the discovery of the thermos.
_____

Wow! This stuff just writes itself, doesn’t it? @Sac Arrow , you can start cutting me in at the third million.
 
MauleSkinner said:
Yes… @midlifeflyer was the prosecuting attorney, who retired having never lost a case
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I'm definitely retired and was about to say there are two errors in that statement. But I guess that since I only every prosecuted one criminal case* and won, it's at least partially correct.

(* that one was (a) under protest and (b) unconstitutional)
 
midlifeflyer said:
I'm definitely retired and was about to say there are two errors in that statement. But I guess that since I only every prosecuted one criminal case* and won, it's at least partially correct.

(* that one was (a) under protest and (b) unconstitutional)
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Well, and technically the cyclist isn’t fat…he’s just bulked up and needs a little toning. But this IS a fictional story, right?
 
Lying around the house not locked up even if the LEO was still employed would be suspect. Forgotten about for years is certainly a break in the chain unless it could be shown that there was no way it could have been interfered with.
 
MauleSkinner said:
Fortunately, he comes out of retirement for one last case, and he knows his dying words will crack the case wide open,
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I was just glancing at this thread... Didn't realize it was about a script. Movie or TV?
 
The case isn't going to hinge on the bottle, it would just be strong supporting evidence - at least to the PI and legal team. So, its disallowance would be a blow, but not a fatal* one.

*no pun intended
 
Sac Arrow said:
Just to be clear it's for a book and set in California. The specific piece of evidence is a thermos full of whiskey sour, but it's never been tested for the presence of rohypnol, which could go far to clear the convicted defendant of murder. I don't want it to be sitting in county evidence locker, because, well, that would just be too easy.
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So it's (allegedly) exculpatory evidence. And we're dealing with appeals (or habeas?) because the "defendant" has already been convicted. And it's been years. I don't think chain of custody is going to be the main issue (if an issue at all). The defense would likely need to get its hands on the thermos and have it tested, or get a court order to have the detective produce the thermos for testing at a defense-designated lab (why would the defense trust the state to test it?). At that point, it would be the defense wanting to show that the thermos wasn't tampered with, but why would the detective tamper with evidence to exculpate the defendant and then conceal it? So it would be the prosecution that would be arguing that the defense manufactured this evidence or its authenticity couldn't be proved, but if it's exculpatory of a murder, that might not go over well. My guess would be that how this goes would depend a lot more on the stage of the game you're in than the chain of custody argument.
 
Lindberg said:
So it's (allegedly) exculpatory evidence. And we're dealing with appeals (or habeas?) because the "defendant" has already been convicted. And it's been years. I don't think chain of custody is going to be the main issue (if an issue at all). The defense would likely need to get its hands on the thermos and have it tested, or get a court order to have the detective produce the thermos for testing at a defense-designated lab (why would the defense trust the state to test it?). At that point, it would be the defense wanting to show that the thermos wasn't tampered with, but why would the detective tamper with evidence to exculpate the defendant and then conceal it? So it would be the prosecution that would be arguing that the defense manufactured this evidence or its authenticity couldn't be proved, but if it's exculpatory of a murder, that might not go over well. My guess would be that how this goes would depend a lot more on the stage of the game you're in than the chain of custody argument.
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In a nutshell, yes.
 
Sac Arrow said:
Just to be clear it's for a book and set in California. The specific piece of evidence is a thermos full of whiskey sour, but it's never been tested for the presence of rohypnol, which could go far to clear the convicted defendant of murder. I don't want it to be sitting in county evidence locker, because, well, that would just be too easy.
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Oh. California. Well you should have started with that…. Definitely admissible.
 
Lindberg said:
So it's (allegedly) exculpatory evidence. And we're dealing with appeals (or habeas?) because the "defendant" has already been convicted. And it's been years. I don't think chain of custody is going to be the main issue (if an issue at all). The defense would likely need to get its hands on the thermos and have it tested, or get a court order to have the detective produce the thermos for testing at a defense-designated lab (why would the defense trust the state to test it?). At that point, it would be the defense wanting to show that the thermos wasn't tampered with, but why would the detective tamper with evidence to exculpate the defendant and then conceal it? So it would be the prosecution that would be arguing that the defense manufactured this evidence or its authenticity couldn't be proved, but if it's exculpatory of a murder, that might not go over well. My guess would be that how this goes would depend a lot more on the stage of the game you're in than the chain of custody argument.
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Yep. Most here are still looking at it in the context of the prosecution using it against the defendant. But as @Sac Arrow clarified, that’s not the case, so the issues are different. And perhaps more interesting.
 
I’m not a lawyer, although I have absorbed a disproportionate amount of legal procedure from all 456 episodes of Law & Order - while staying at a Holiday Inn. o_O

My question: why was the thermos entered into evidence in the first place?

My concern, would likely be the stability of Rohypnol in the thermos and whether the substance could have degraded over time.

Another questions is why were the thermos contents were not subjected to toxicology testing immediately after being entered into evidence—particularly if there was a reason to believe the contents might be relevant since the autopsy and its toxicology findings would have showed something if not in the blood, certainly in the liver, and this is a standard with all autopsies. I would expect an initial toxicology screen to identify possible red flags, followed by confirmatory testing for any suspected substance. Those findings, along with the testing methodology, chain of custody, and results, should be thoroughly documented in the case file making the actual thermos moot.

A separate question is why the evidence custodian did not make a documented effort to notify the owner or otherwise arrange for the thermos’s return once it was no longer needed as evidence.

A friend of my wife was a Ventura County prosecutor, and my understanding is that, especially since the O.J. Simpson trial, prosecutors and law-enforcement agencies tend to be exceptionally careful with significant physical evidence: check it, double-check it, and document every step.

You're welcome
 
Ventucky Red said:
I’m not a lawyer, although I have absorbed a disproportionate amount of legal procedure from all 456 episodes of Law & Order - while staying at a Holiday Inn. o_O

My question: why was the thermos entered into evidence in the first place?
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The alleged crime occurred on a sailboat off the coast of San Francisco. Defendant's wife went missing at sea. Relevant to both BUI and potentially murder charges.
Ventucky Red said:
My concern, would likely be the stability of Rohypnol in the thermos and whether the substance could have degraded over time.
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Good point. I'll need to look in to that.
Ventucky Red said:
Another questions is why were the thermos contents were not subjected to toxicology testing immediately after being entered into evidence—particularly if there was a reason to believe the contents might be relevant since the autopsy and its toxicology findings would have showed something if not in the blood, certainly in the liver, and this is a standard with all autopsies. I would expect an initial toxicology screen to identify possible red flags, followed by confirmatory testing for any suspected substance. Those findings, along with the testing methodology, chain of custody, and results, should be thoroughly documented in the case file making the actual thermos moot.
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The alcohol was consumed by the defendant, not the victim. The victim's body had never been recovered.
Ventucky Red said:
A separate question is why the evidence custodian did not make a documented effort to notify the owner or otherwise arrange for the thermos’s return once it was no longer needed as evidence.
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The case was closed. I know most agencies have a long retention period for major crimes. Probably not too important to the plot however.
Ventucky Red said:
A friend of my wife was a Ventura County prosecutor, and my understanding is that, especially since the O.J. Simpson trial, prosecutors and law-enforcement agencies tend to be exceptionally careful with significant physical evidence: check it, double-check it, and document every step.
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No doubt. I may take literary license and have things fall through the cracks. Sift happens.
Thank you.
Ventucky Red said:
You're welcome
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Ventucky Red said:
My concern, would likely be the stability of Rohypnol in the thermos and whether the substance could have degraded over time.
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I think there is a good chance it would have degraded. The retired chemist in me had to look up the structure to refresh my memory (I'm probably on all kinds of watch lists now), and that heterocyclic ring isn't acid-stable. Is the lemon juice in the whisky sour enough to open the ring? Quite possibly-lemon juice is about as acidic as anything you'd ever want to put in your mouth. AI (caveat emptor) tells me that toxicologists avoid using acidic conditions when extracting rohypnol from biological samples to avoid the degradation problem.

Sure, you'd be left with degradation products that would strongly point to rohypnol in the original sample, but I'm not sure there would be any rohypnol left in the thermos.

On the other hand, your readers would probably thank you for not going that deep into the chemical rabbit hole.
 
Sac Arrow said:
The alleged crime occurred on a sailboat off the coast of San Francisco. Defendant's wife went missing at sea. Relevant to both BUI and potentially murder charges.

Good point. I'll need to look in to that.

The alcohol was consumed by the defendant, not the victim. The victim's body had never been recovered.

The case was closed. I know most agencies have a long retention period for major crimes. Probably not too important to the plot however.

No doubt. I may take literary license and have things fall through the cracks. Sift happens.

Thank you.
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To add some spice to it, maybe they were doing the double handed Farallon Island sailing race... if you go overboard there and you'll either freeze to death or the sharks will get ya... let alone the California Current pulling what is left of your corpse west by south west, that is if you survive the feeding frenzy.

Double Handed Farallones - SFBAMA

sfbama.org sfbama.org

Sounds like the Robert Wagner/Natalie Wood case....

www.cbsnews.com

Natalie Wood death: Investigator calls new witnesses "very credible"

Nearly four decades after the mysterious drowning death of the Hollywood star, Los Angeles County Sheriff's investigators disclose new clues, new witnesses and a person of interest in the case to "48 Hours."
www.cbsnews.com www.cbsnews.com
 
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