Saturday, November 23, 2013
The disagreements about the videotape evidence in the Kendrick Johnson case demonstrate the importance of establishing and following procedures regarding the acquisition and preservation of evidence by law enforcement personnel.
Acquisition of Evidence
Evidence can consist of real (land) and personal (things) property. Personal property includes statements, documents and photographs as well as audio and video recordings and the hard drives of computers and cell phones.
Personal property can be acquired from a person, business or organization by abandonment, consent, plain view seizure, Terry patdown, plain feel seizure, search incident to arrest, search authorized by warrant, inventory search, subpoena duces tecum.
Abandoned property is free for the taking. Anyone can seize it without the former owner’s permission.
Property may be seized from a person, business or organization by obtaining consent freely and voluntarily given by the person or authorized representative of a business or organization.
Police may seize any property they immediately recognize as evidence of a crime without consent or a search warrant, if it is in plain view and they have a right to be where they are doing what they are doing.
Pursuant to Terry v. Ohio, police may stop and temporarily detain a person whom they reasonably suspect has committed, is committing or is about to commit a crime in order to identify the person and briefly investigate the suspicion. To protect themselves, they may also pat down the suspect’s outer clothing and seize anything that feels like a weapon or controlled substance.
Police may arrest and search a person, if they have probable cause to believe that he or she has committed a felony. This is a search incident to arrest.
Upon a showing of probable cause to believe that certain property such as a vehicle, airplane, boat, residence or business, contains evidence of a particular crime, police may obtain a search warrant from a neutral and detached magistrate or judge authorizing them to search the property and seize that evidence. The Affidavit for Search Warrant in Philip Chism’s case, which was unsealed yesterday after a grand jury indicted him, is an example of an application for a search warrant and it reveals some, but probably not all, of the information obtained by police at that point in the investigation. Affidavits for search warrants are excellent sources for discovery material and, with the exception of a client’s statements, they are the only discovery a criminal-defense lawyer gets before trial in a federal case.
A search-warrant return is an itemized list of all of the property seized during the search authorized by a search warrant. Such a search is called executing the search warrant.
Inventory searches are routine searches of property seized by police, such as a vehicle or a wallet or purse, to itemize the contents. These types of searches occasionally result in a discovery of incriminating evidence. They do not require probable cause, so long as the police lawfully acquired the property being searched and inventoried.
A subpoena duces tecum is a subpoena (i.e., order to appear and testify at a hearing or deposition) to bring specified documents or property to the hearing or deposition.
Preservation of Evidence
With the exception of wet clothing or other wet evidence, every item seized must be maintained in the condition it was in when seized. Wet items must be dried to prevent contamination and possible destruction by fungus or bacteria. Each item must be separately packaged in sealed plastic or paper bags. Clothing and bedding should always be stored in sealed paper bags. Controlled substances must be described, weighed and packaged in sealed plastic bags. All evidence seized must be assigned a number, inventoried and stored in a secure area within the police department that is conducting the investigation.
Each evidence unit must maintain a log or record listing from whom and when evidence was received or to whom it was released and for what purpose.
Chain of Custody
Every item of evidence has a history beginning with who, when and where they seized it, who packaged it, who delivered it to the evidence unit and who logged and stored it away. Every time that item was examined, who examined it and for what reason must be documented in the log. If sent out for analysis and returned, the net weight of the item after testing must equal the difference between its original weight minus the weight of the amount removed for testing.
The chain of custody is the documentation of every human contact with a particular item in evidence. Police are required to document every contact so that defendants, lawyers, judges and juries can know that a particular item in evidence is in the same condition that it was when seized with any differences documented and explained.
A material break in the chain of custody should result in the exclusion of that item of evidence at trial.
The videotapes in KJ’s case
At this point, substantial questions exist regarding the videotapes, including whether they are complete and/or have been subjected to tampering.
I am especially troubled by the remarkable “coincidence” that the only camera focused on the area where the mats are stored and Kendrick’s body was found recorded an out-of-focus or blurry video.
Coupled with other evidence we have reviewed and the failure of the Lowndes County Sheriff’s deputies to immediately seize and preserve all of the videotape evidence, I believe I have a legitimate concern that evidence of a murder may have been destroyed or subjected to tampering in order to protect the person or persons responsible for KJ’s death.
Something is rotten in Denmark and the FBI has a duty to KJ’s family, we the people and to itself (since two sons of a special agent are potential suspects) to figure it out.