Chain of Fools, Take 5: Chain of Custody & The Failure to Properly Seal Blood Evidence

In Episode 4 of the Undisclosed Podcast, Susan Simpson noted a disturbing discovery regarding the blood samples used to determine the source of the stains found on the t-shirt in Hae Min Lee’s car. While the seal on the blood sample for Jay was intact at the time it was tested, the blood samples for both Hae and Adnan Syed had been inexplicably broken before they were tested. As I noted on the episode, this should have formed the basis for a chain of custody objection by defense counsel.

I’ve noted before that

the proponent of evidence (e.g., drugs seized from the defendant) uses the chain of custody (evidence or proffers from everyone who handled the evidence) to satisfy the requirement that the evidence introduced at trial is that same evidence (e.g., the drugs) in substantially the same condition. If problems with the chain of custody make it so that there is not a reasonable probability of sameness (e.g., there is a decent chance the drugs were cross-contaminated), the evidence is inadmissible. If, despite problems with the chain of custody, there is still a reasonable probability of sameness, the evidence is still admissible, and the problems merely go to the weight of the evidence (e.g., how much weight the jury should give the evidence).

Here’s the Chain of Custody Form for the blood evidence in the Adnan Syed case. As you can see, the form has both (1) property numbers for each of the blood samples; and (2) the date and time for each person who handled the blood evidence.

As such, Adnan’s case was not a case in which there were gaps in the chain of custody for blood evidence, leading to its inadmissibility, as in State v. Carney, 714 P.2d 532 (Mont. 1986) That said, Adnan’s case was clearly a case in which blood samples were improperly sealed, which could have led to defense counsel claiming that the samples (and any tests done on them) were inadmissible due to chain of custody concerns. That was the case in State v. Wright, 426 N.W.2d 3 (N.D. 1988), in which the court sustained the defendant’s argument “that the results of the blood-alcohol test should have been excluded because the vial was not properly sealed and labeled as required in the directions for sample collection issued by the State Toxicologist.”*

Indeed, the entire point of sealing evidence is to make sure that there is not cross-contamination, meaning that the failure to properly seal evidence creates serious issues. See, e.g.,  Cooper v. Brown, 510 F.3d 870 (9th Cir. 2007).

[Update: Here’s more on the blood testing from the Undisclosed website.].

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*State v. Nygaard, 426 N.W.2d 547 (N.D. 1988), is a similar case from the same court reaching the same result.

-CM