The problem of authentication arises whenever the relevancy of any evidence depends upon its identity, source, or connection with a particular person, place, thing, or event.

A witness' out-of-court statements are not admissible simply because the witness is available at trial and subject to cross-examination.

So how would you handle this problem?

Corrections officer discovers evidence (methamphetamine) showing commission of prohibited substance in correctional facility. He takes the packet immediately to a deputy sheriff and tells the deputy what has happened and who he believes violated 38.11. Deputy marks the substance in such a way as it can be properly identified (by him) later and it is secured. There is no claim of alteration of the evidence. Corrections officer, however, would have no means of positively identifying the packet at any later time, i.e., he cannot look at it at trial and say it is what he says it is.

At trial, he offers to testify about what he did with the packet and what he told the deputy at the time it was delivered to the deputy. Court rules the prior statement to the deputy is hearsay. While it seems the statement was offered merely to confirm the deputy's testimony as to the relevance of the packet and its contents, that does seem to be for the truth of the matter asserted and the testimony does not fall within any exception under 803. Is the business record (the "chain of custody" document) the only saving grace? Or was the testimony about the statement made to the deputy admissible? I have Maranda, a 2007 opinion out of Amarillo located, but it does not really explain the interaction of Rules 802 and 901.

[This message was edited by Martin Peterson on 04-27-08 at .]

I'm confused about what you need the statement to the deputy for. You have both the deputy and the corrections officer to testify, correct? I understand that only the deputy can identify the controlled substance itself, but you don't really need to CO's statement for that. The CO testifies where he found the bag and that he brought it to the deputy, then the deputy testifies that the CO brought him the bag and Exhibit X is the same bag.

All that matters is that you prove the bag you have in evidence is the same bag the CO found in the jail. What exactly the CO said when he brought it to the deputy doesn't matter for authentication purposes.

The deputy has no personal knowledge about the meth (i.e., why it is connected to the defendant, only that it is what he received from the CO). Thus, the deputy cannot authenticate the exhibit. The CO also cannot authenticate the exhibit at trial (since one bag of crystalline substance looks so much like another). Thus, how he identified the substance shortly after the offense seems important, if not necessary. The issue is then whether his prior statement (identifying the substance) is hearsay.

But there's no rule that you have to use only one witness to authenticate an evidence. As long as you have testimony that a bag was taken from the cell and that same bag is what was later tested and introduced at court, it doesn't matter if it comes from multiple witnesses. So the corrections officer can testify that he took a bag from the cell and gave it to the deputy on X date and time, and the deputy can testify that he was given a bag by the corrections officer on X date and time, marked it, and identify that bag as the same one that's in court. It doesn't matter why the CO gave him the bag, as long as you can definitively establish that it's the same bag.

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So the corrections officer can testify that he took a bag from the cell and gave it to the deputy on X date and time

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Shouldn't the CO have bagged/marked/labeled or otherwise identified the substance at the time it was confiscated in order to testify that 'yes, this is the bag I took from cell X' and gave to Deputy Y'?

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Originally posted by Waco:
Shouldn't the CO have bagged/marked/labeled or otherwise identified the substance at the time it was confiscated in order to testify that 'yes, this is the bag I took from cell X' and gave to Deputy Y'?

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That would've been nice, but he didn't do that, apparently. But I don't think there's a missing link as long as the CO can say that he took a bag from the cell and took it directly to the deputy, and the deputy says that's the bag he was given. Sure, the defendant can argue that the CO tripped on the way, dropped the bag into a box full of other bags of meth, and picked up the wrong one or something, but there's still enough connecting the bag in the defendant's cell to the bag at trial. You just have it through two witnesses instead of one.

The evidence came in, on the very theory Andrea suggests. The defendant argued that since the exhibit had never been identified by the CO, he was entitled to an instructed verdict. I said identification by the deputy was good enough.

I guess everyone agrees the hearsay objection to the testimony at issue was valid. It just did not occur to me at the time that the evidence really was being introduced for the truth of the matter asserted. Yes, this experience points out that evidence not readily distinguishable should be marked by the first person who seizes it (i.e., someone with personal knowledge of its relevance).

Thank you both for the clarification. I was concerned that without the first ID, defense could prevail on improper chain of custody. Unfortunately in some agencies, this scenario is more the norm than the exception. Glad to know it's not fatal.