Has anyone ever had a motion to suppress DNA evidence based on improper handling of chain of custody or improper storage of the evidence. If so, I need help with a response for a hearing TOMORROW MORNING- PLEASE HELP!!!!!
There is no case law or statutory law cited in the motion so I am not sure how to proceed.

[This message was edited by msarchet on 01-09-06 at .]

[This message was edited by msarchet on 01-09-06 at .]

You should be able to find numerous cases for the proposition that chain of custody goes to weight, not admissibility. This is so well settled that it does not surprise me to see that he has no case law cited in his motion.

True- but that seems too simple. I am worried that there may be something up the defendant's sleeve that I haven't anticipated and so I was hoping for a response to just take care of this on the motions.

Don't let the defendant confuse the issue of suppression with admissibility.

A motion to suppress addresses whether the evidence was legally obtained. In other words, should the evidence be suppressed because of some violation of the 4th Amendment or a statute dealing with search and seizure. Such a motion may be heard before trial and appealed by the state if the judge grants the motion.

Admissibility deals with the predicate for admissiion of evidence. In other words, what sort of indication is there that the evidence is authentic under the Rules of Evidence or some special statute regarding admissibility. Admissibility is handled during trial, not in a pretrial motion.

So, a defendant should not be permitted to ask a judge to make a decision on the admissibility of DNA evidence before trial. That decision comes during trial after the judge has heard the chain of custody, etc.

Chain of custody is a very flexible concept. Check the Predicate Questions Manual for the latest cites.

Chill a little bit. Unless your expert tells you there is a problem somewhere in the handling of the evidence, or unless it was otherwise compromised somewhere in the chain (generally very hard to do), you're in good shape.

There is usually no motion to be filed that will be dispositive of these types of claims. You have to hear evidence, make argument, yada yada yada. There is no magic bullet motion.

Try finding some prosecutors in this lawyers home turf (if he is not local) who may have dealt with his claims before, and see what they encountered. Or if he is local, then you should know whether there will be "something up his sleeve" or not.

Every case I have tried that involved DNA evidence certainly involved extensive questioning, and subsequent closing arguments based thereon, about the chain of custody and the handling. Although none of the cases I have tried led to extensive questioning the about the accuracy of the testing itself, surely every case we try from here on in will have those issues thoroughly explored in voir dire, opening, the cross by defendant, the defendant's case (i.e. experts), in short, that will be a strong focus of every defendant in dna cases.

With all of the problems some of our crime labs are having, this defense approach will neither be novel or infrequent. I mean, if you were a defense lawyer, wouldn't you want to know every step and see every piece of evidence available to protect your client's rights, especially in light of recent bad pub (unfortunately true) about some labs.

Excellent advice JB!

See State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (op. on rehearing)

This reply is probably too late to help you, but here goes.
I did once have a DNA Suppression hearing, but the facts were very unique. It was a case that I inherited on retrial in which it was discovered well after conviction that the infamous (and now deceased) Fred Zain had falsified pretty much all of the serology results that he'd testified to at the original trial. When confronted w/ his perjury on a post conviction writ, he pled the 5th.

The defense was then claiming that all our subsequent DNA testing should be suppressed b/c there was affirmative evidence of tampering, therefore the entire chain had to be proven, and since he was a necessary link in the chain of custody and we weren't calling him, we couldn't get there. Our argument was that there was no evidence of actual tampering - that he'd planted any of the bloodstains - there was just evidence that he'd lied about his results, thus the entire chain was not required.

I agree w/ John, even this bizarre scenario should have been handled as an admissibility issue at trial. However, we didn't push the issue and went ahead w/ a suppression hearing b/c, frankly, the whole case pretty much hinged on our DNA and we wanted to know ahead of time if we could get it before the jury, and if the trial court said we couldn't, at least we could appeal that. (Trial court let it in, jury convicted in 2 hours, affirmed)

I've got the suppression hearing transcript, a pretty lengthy trial brief, as well as a very lengthy brief I can email you if you need any of it.

Thanks for all the help. I was looking for a response before the hearing because I thought that making the defense submit a more specific motion would buy me some time. There are some issues with the evidence that I needed to work out, not the least of which was that my officers couldn't find part of it, and thought that it may have been thrown out. Luckily, my lead officer found it literally in the middle of my hearing and came rushing in with an affidavit saying that it had been in the property room the whole time. Now the only issue that I have is that the first investigator on the case is has now been indicted for the same type of offense, and he is somewhat unwilling to cooperate with me- but that's an altogether different posting.