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Laying Foundations for Evidence (podcast transcript)

Roddini: Good morning. I am Ariana Roddini with the Enforcement Operations Division at the Federal Law Enforcement Training Center. I am here today with Keith Hodges, an attorney who has been a Senior Instructor in the FLETC Legal Division for eight years.

We are here this morning to discuss the legal requirements on getting evidence admitted at trial. Keith, would you like to set the stage?

Hodges: Glad to. This podcast is not about the techniques of collecting evidence so as to preserve the evidence’s forensic value - the need to wear gloves, handling hazardous items correctly, and using the correct collection methods. They are important, of course, but they’re not the focus of what we’re going to talk about. Let’s talk about some law.

Roddini: Keith, can you give us an overview of the legal requirements?

Hodges: Of course. Only items that have been received in evidence by the judge can be admitted into evidence, and only that which has been admitted into evidence can be considered by a jury. So let’s use a simple example where an officer finds drugs in the defendant’s pocket during a search incident to arrest, and the prosecutor wants to have those drugs admitted into evidence on a charge of possession of a controlled substance.

To have the evidence admitted, the prosecutor has to fulfill the authentication requirement of Federal Rule of Evidence 901.

Roddini: How about in a state court?

Hodges: The state court evidence rules are identical, or nearly so, to the Federal rules.

Roddini: So, how does the prosecutor go about meeting the authentication requirement?

Hodges: He does that by offering facts that the evidence the prosecutor wants admitted is what the prosecution claims it is. In our scenario, the prosecutor can’t just walk up and say, “These are the drugs found in the defendant’s pocket on day X.” The prosecutor has to lay a foundation with facts that the drugs are THE drugs found in the defendant’s pocket.

Roddini: So how does the prosecutor lay the foundation?

Hodges: A foundation is laid by having a witness who has personal knowledge about the item testify in court. In the best and ordinary situation, the officer who found the evidence would be the person testifying on the foundation because that officer can testify from personal knowledge.

Roddini: Can you tell us what the officer can expect to testify about?

Hodges: Sure. Let me tell you the four standard questions an officer can expect when asked to testify on a foundation for evidence.

First - Do you recognize the exhibit? In our case, the prosecutor would be referring to the drugs.

Second - What do you recognize this exhibit to be?

Third - How do you recognize it to be THE drugs you found?

And fourth - Is this exhibit in the same or substantially same condition as when you found it?

Roddini: Now before this podcast, you and I wrote a little trial script of an officer testifying about finding the drugs. Should we go through what the officer’s testimony would sound like?

Hodges: I think that’s a good idea. I tell you what, I’ll be the prosecutor and you be the witness. Here goes.

Are you the officer that arrested Mr. Jones?

Roddini: Yes sir, I am.

Hodges: Did you conduct a search incident to arrest after your arrested Mr. Jones?

Roddini: I did.

Hodges: During the search incident to arrest, did you find any suspected contraband?

Roddini: Yes sir, I did.

Hodges: Please tell us what you found and where you found it?

Roddini: While searching Mr. Jones, I found a bag of what I recognized from my training as probably marijuana. I found it in the right front pants pocket of Mr. Jones.

Hodges: After finding the bag, what did you do with it?

Roddini: After finding the bag, I placed the bag of suspected drugs into an evidence bag. I labeled the bag with my name, the date and time of discovery, a brief description of what I had found, and the location I had found it.

Hodges: What did you do then?

Roddini: I signed the bag and gave it to Officer Smith, who is our department’s evidence custodian.

Hodges: Okay, now get ready for those four questions that we talked about earlier.

If you saw the bag you seized again, would you recognize it?

Roddini: Yes sir, I would.

Hodges: I am showing you what has been marked as prosecution exhibit 2 for identification, do you recognize it?

Roddini: Yes sir, I do.

Hodges: What do you recognize it to be?

Roddini: These are the drugs that I found in Mr. Jones’ right front pants pocket.

Hodges: How do you recognize this exhibit as the drugs you found in his pocket?

Roddini: Because at the time I found it, I placed the bag of suspected drugs into this evidence bag. I then labeled it with my name, the time and date of discovery, the location where I found the item, and a description of the item.

Hodges: Is this item in the same or substantially same condition as when you found it.

Roddini: Yes sir, it is.

Hodges: Now that’s how it would go. In our case, the drugs would have gone to the lab for testing so we could prove it was a controlled substance. So the officer may testify on the last question that the item is in the same condition but also testify the item had been sent to the lab for analysis.

Roddini: Well then would the officer be expected to testify about the lab analysis?

Hodges: No Ariana, he wouldn’t. The prosecutor would either have the lab report admitted or call the lab person who did the analysis.

Roddini: Can there be a cross-examination of the officer?

Hodges: You bet. Any witness who testifies can be subject to cross-examination. In our example, the defense will be allowed to cross-examine the witness to challenge the officer’s testimony on the foundation.

Roddini: So Keith, let me ask you this. Now, where does chain of custody come in?

Hodges: Let me first point out that the part that our officer filled out is the tag that marks the bag into which the evidence was placed. This tag records the facts that establish the factual basis for the foundation.

A chain of custody serves a different purpose. It records where the item has been in the event there is a challenge the evidence has been altered, switched, or is not the same as what was found.

Roddini: And who prepares the chain of custody?

Hodges: That depends on the agency’s policy. In some agencies, the officer who finds, bags, and tags the evidence starts the chain of custody. In other departments, the officer who found, bagged, and tagged the evidence would take the evidence to the evidence custodian and the custodian would prepare the custody document.

Roddini: Well then let me ask you does it legally make a difference?

Hodges: No, it doesn’t. As long as the chain of custody has entries from the time the item came into law enforcement custody until it gets to trial, it makes no difference.

Roddini: So, what happens if it isn’t an officer who first finds the evidence? For example, let’s say that a citizen finds a bloody knife and then gives it to an officer?

Hodges: That’s a good question. The officer would bag and tag the knife and fill out the evidence tag and give the bagged knife to the evidence custodian. The officer would reflect on the tag that he got the knife from the citizen.

Roddini: But who testifies at trial on the foundation?

Hodges: In your knife example, the prosecutor would have the citizen testify where he or she found the knife, and that the citizen gave the knife to the officer. The officer would then testify just as we described earlier in the drug example.

Roddini: I’ve noticed that a lot of times during a trial evidence comes in and no foundation is laid in court. Why would that be?

Hodges: There are lots of reasons. The defense could have stipulated as to the origin of the evidence, or perhaps a motion was made earlier to suppress and that motion was denied. Sometimes when the foundation and chain of custody is so clean the defense doesn’t contest the evidence’s admissibility.

But I need to emphasize here that all evidence should be collected, bagged, and tagged in such a way that a foundation can be laid in court. With that Ariana, can I remind the listeners of those four questions again?

Roddini: That’s a great idea.

Hodges: Here are those four questions again. When collecting evidence, have them in mind, and if the procedure you are about to use will not yield the answers to these questions, then follow a process that will. Here it goes:

First, do you recognize the exhibit?

2. What do you recognize this exhibit to be?

3. How do you recognize it to be THE item?

4. Is this exhibit in the same or substantially same condition as when you found it?

Roddini: Thanks Keith. I think that explains it well for our listeners and I hope they find the information useful. On behalf of the Legal and Enforcement Operations Division at the FLETC, thanks for tuning in.