Chain of custody

📄 Chain of custody — Wednesday, February 22, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\22\CHAIN-OF-CUSTODY.DOC

TRIAL

▲ Day 23 of 167

◀ Cross-examination of Detective Tom Lange (afternoon, part 4) Status check ▶

Date: Wednesday, February 22, 1995 • Utterances: 32

During a noon recess with the jury out, Marcia Clark sought to open returned evidence boxes on the record to document chain of custody before redirect examination of Detective Lange. Barry Scheck objected, raising concerns about missing inventory lists, a potentially lost item of evidence with no photographic record of its original packaging, and the disorder in which boxes were returned. Clark grew frustrated with Scheck's demands for caution and abruptly withdrew her request entirely.

# 1 THE COURT:

THE RECORD SHOULD REFLECT THAT THE JURY HAS WITHDRAWN FROM THE COURTROOM. COUNSEL, BE SEATED. ALL RIGHT. MISS CLARK, IT'S THE NOON HOUR. YOU WANTED TO GO OVER THIS EVIDENCE WITH THE COURIER?

# 2 MS. CLARK:

RIGHT. OH, DARN. YES, YOUR HONOR. THANK YOU. IF WE COULD JUST OPEN IT ON THE RECORD. I JUST WANT TO RETAIN THE CHAIN ON THIS UNLESS COUNSEL WILL STIPULATE TO THE CHAIN.

# 3 MR. BAILEY:

YOUR HONOR, MAY I PRINT OUT THE LIST OF THINGS THAT DETECTIVE LANGE --

# 4 THE COURT:

YOU MAY. WHY? DOES IT MAKE A LOT OF NOISE?

# 5 MR. BAILEY:

MORE THAN YOU WANT THE JURY TO HEAR.

# 6 THE COURT:

ALL RIGHT. COUNSEL, MR. COCHRAN, MR. DOUGLAS, HOW ARE WE GOING TO HANDLE THIS EVIDENCE TRANSFER?

# 7 MR. COCHRAN:

WHAT DOES SHE WANT TO DO?

# 8 MS. CLARK:

I JUST WANT A RECORD --

# 9 MR. SCHECK:

I THINK -- MY SUGGESTION IS THAT WE SHOULD BE VERY CAREFUL ABOUT THIS. AND THE FIRST THING THAT I NOTED, MISS CLARK SAID THAT THERE'S NO INVENTORY LIST. AND I JUST WANT TO MAKE IT CLEAR THAT -- MAYBE MISS CLARK ISN'T AWARE OF THIS, BUT BEFORE WE SENT IT, IT WAS SUGGESTED WE WOULD HAVE AN INVENTORY LIST WITH EACH OF THE BOXES THAT WAS SENT, AND THERE WASN'T, AND THERE'S A VIDEOTAPE THAT WAS MADE OF EACH OF OUR EXPERTS OPENING EACH OF THESE BOXES AT EACH PARTICULAR TIME IN THE PRESENCE OF AGENTS AND THE DISTRICT ATTORNEY'S OFFICE OR MR. NICHOL FROM SID AND DIFFERENT PERSONNEL FROM NEW YORK STATE. SO I AM JUST CONCERNED ABOUT -- IN TERMS OF CHAIN OF CUSTODY, IF THESE THINGS HAVE BEEN RETURNED BACK TO THE DISTRICT ATTORNEY'S OFFICE AND THEY HAVE BEEN REOPENED SINCE THEN, MAYBE MISS CLARK CAN INFORM US AS TO WHAT HAS BEEN DONE IN TERMS OF REOPENING. THAT'S THE FIRST TIME THEY'VE BEEN REOPENED SINCE THEY'VE BEEN BACK. IF NOT, WHAT WAS THE PROCESS. BECAUSE IT WAS MY UNDERSTANDING THAT, NUMBER ONE, THE PACKAGING PROCESS WAS TAKING SOME TIME BECAUSE GREAT CARE WAS DEVOTED BY PERSONNEL FROM SID TO PHOTOGRAPHING EVERYTHING THAT WAS FIRST TAKEN OUT. AND I DID HAVE COMMUNICATIONS WITH MR. HODGMAN DURING THE COURT SESSION ABOUT ONE MATTER THAT WE HEARD YESTERDAY ABOUT, PHOTOGRAPHS TAKEN OF THAT ITEM. SO I'M JUST CURIOUS, MISS CLARK, BEFORE SHE OPENS ANY PACKAGES, IF THEY HAVE BEEN OPENED BEFORE; IF SO, BY WHOM, IF THERE ARE ANY RECORDS OF IT, THAT SHE'S NOT GOING TO MAKE ANY ALLEGATION SOMETHING WAS TAKEN OUT, MISSING.

# 10 MS. CLARK:

YOUR HONOR, COULD WE COME BACK AT 1:45? IF MR. SCHECK IS GOING TO MAKE SUCH A BIG DEAL -- ALL I WANT TO DO IS DOCUMENT WHAT IS IN EACH PACKAGE FOR THE PURPOSE OF CHAIN OF CUSTODY. I DO NOT KNOW WHETHER IT'S BEEN OPENED BEFORE. ALL I HAVE BEEN INFORMED IS, THEY WERE NOT RETURNED IN THE SAME ORDER, THE PACKAGING, AS THEY WERE SENT; AND THEREFORE WE DO NOT KNOW WHAT IS IN EACH PACKAGE. AND I WANT TO MAKE SURE THAT I FIND THE ITEM THAT I WANT MARKED TODAY WITH DETECTIVE LANGE AND IF I HAVE TO OPEN UP MORE THAN THE PACKAGE THAT'S CONTAINED IN THAT, THERE IS A PRESERVATION ON THE RECORD OF THE CHAIN OF CUSTODY. THAT'S ALL I WANT TO DO RIGHT NOW. I DON'T WANT TO TALK ABOUT WHAT HAPPENED BEFORE THIS THING CAME INTO THE COURTROOM THIS MORNING BECAUSE I AM UNCERTAIN ABOUT THAT. I JUST WANT TO OPEN THESE BOXES RIGHT NOW IF I CAN ON THE RECORD AND DESCRIBE WHAT'S IN EACH OF THEM. IS THAT ALL RIGHT?

# 11 MR. SCHECK:

WELL, THEN I WOULD SUGGEST IF SHE DOESN'T KNOW AND IF THERE'S ANY CONFUSION, THAT WE DO THIS A SYSTEMATIC WAY WITH THE PEOPLE AND WITH YOUR COURIERS. I WILL GO AND I WILL HAVE -- I WILL BE THERE AS A WITNESS AND WE'LL HAVE AGENTS FROM YOUR OFFICE DO IT. MISS CLARK, I THINK YOU'D BETTER DO IT CAREFULLY BECAUSE THERE IS A PROBLEM WITH CHAIN OF CUSTODY.

# 12 MS. CLARK:

WHY DON'T YOU ADDRESS THE COURT, COUNSEL.

# 13 MR. SCHECK:

YES. I DON'T MEAN TO SAY THIS TO YOU. YOU MAY NOT EVEN BE AWARE OF IT. BUT THERE IS A PROBLEM WITH RESPECT TO CHAIN OF CUSTODY OF AN IMPORTANT ITEM AND I JUST THINK THAT THIS SHOULD BE DONE IN A CAREFUL FASHION. AND IF THOSE HAVEN'T BEEN OPENED BEFORE, I THINK WE SHOULD JUST HAVE A CLEAR RECORD AS TO WHO'S OPENED THEM SINCE THEY CAME BACK THAT ACCORDING TO YOUR KNOWLEDGE, THAT THEY'RE NOT IN THE SAME ORDER IN WHICH THEY WERE SENT. IF WE ARE GOING TO DO IT, WE SHOULD BE CAREFUL AND MAKE A RECORD.

# 14 MS. CLARK:

YOUR HONOR, COULD WE JUST SEE WHAT'S IN THE BOX? I WANT TO KNOW WHERE THE ITEM IS THAT I WANT TO MARK.

# 15 THE COURT:

YOU'RE NOT CONCERNED ABOUT COMPROMISING ANYTHING THAT MIGHT BE IN THERE BY OPENING IT?

# 16 MS. CLARK:

I AM SURE WE WILL NOT.

# 17 THE COURT:

ALL RIGHT.

# 18 MR. SCHECK:

YOUR HONOR, I WAS INFORMED BY MR. HODGMAN --

# 19 MS. CLARK:

YOUR HONOR, YOU KNOW SOMETHING? THE PEOPLE'S CASE --

# 20 THE COURT:

MISS CLARK, WAIT. DON'T INTERRUPT COUNSEL, PLEASE.

# 21 MR. SCHECK:

I WAS INFORMED BY MR. HODGMAN, HE MADE INQUIRY WITH RESPECT TO THE PACKAGE THAT WE OPENED IN CHAMBERS YESTERDAY AND THAT THERE IS NO PHOTOGRAPHIC RECORD OF HOW THAT ITEM WAS ORIGINALLY PACKAGED, AND THEY'RE STILL MAKING INQUIRY AS TO HOW THIS ITEM OF EVIDENCE WAS MISSING. IF YOU WANT, WE CAN PUT ALL THAT ON THE RECORD NOW. IT'S UP TO THE COURT.

# 22 MS. CLARK:

YOU KNOW WHAT? FORGET IT.

# 23 MR. SCHECK:

I'M JUST SAYING, THIS SHOULD BE HANDLED CAREFULLY. I DON'T MIND STICKING AROUND AND HAVING THE PEOPLE WITH THE COURIERS COME BACK. IF THEY'VE ALREADY OPENED IT AND CAN'T FIND SOMETHING, WE'LL CALL THE VARIOUS INDIVIDUALS AND WE'LL FIND IT AND WE'LL MAKE A CLEAR RECORD ON THE CHAIN OF CUSTODY. I DON'T THINK SHE SHOULD JUST BE OPENING THINGS IN THE COURTROOM LIKE THIS WHEN THERE'S ALREADY A SERIOUS MATTER ABOUT A CERTAIN ITEM OF EVIDENCE BEING LOST.

# 24 MS. CLARK:

YOU KNOW WHAT, YOUR HONOR? I DON'T WANT TO HEAR ANOTHER WORD FROM MR. SCHECK. FORGET IT. WE WON'T OPEN ANYTHING. AND WHEN THE TIME COMES FOR ME TO GO ON REDIRECT WITH DETECTIVE LANGE, I WILL DO WHAT I NEED TO DO TO INTRODUCE THE EVIDENCE, AND I'M SURE THAT IT WILL BE FINE. SO I'M WITHDRAWING MY REQUEST. THAT'S IT. WE'RE DONE. THE JUDGE ONLY ASKED US TO STAY BECAUSE OF MY REQUEST. I WITHDRAW THE REQUEST. I ASSUME THAT THERE'S NOTHING ELSE TO TALK ABOUT.

KEY QUOTE

# 25 MR. SCHECK:

WITH RESPECT TO COUNSEL --

# 26 MS. CLARK:

MAY I BE EXCUSED, YOUR HONOR?

# 27 THE COURT:

NO.

# 28 MR. SCHECK:

I WOULD JUST ASK SHE MAKE INQUIRY OF MR. HODGMAN ABOUT A MATTER.

# 29 MS. CLARK:

I HAVE WORK TO DO UPSTAIRS. LET MR. SCHECK COMMUNICATE WITH MR. HODGMAN.

# 30 THE COURT:

COUNSEL.

# 31 MR. SCHECK:

I'M JUST TRYING TO BE HELPFUL.

# 32 THE COURT:

MISS CLARK HAS WITHDRAWN HER REQUEST. WE'RE IN RECESS.

Temperature

tense

Key Quotes (4)

Barry Scheck

THERE IS A PROBLEM WITH CHAIN OF CUSTODY OF AN IMPORTANT ITEM AND I JUST THINK THAT THIS SHOULD BE DONE IN A CAREFUL FASHION.

Scheck signals the defense has identified a specific chain-of-custody vulnerability they intend to exploit — a missing item with no photographic packaging record.

Barry Scheck

I DON'T THINK SHE SHOULD JUST BE OPENING THINGS IN THE COURTROOM LIKE THIS WHEN THERE'S ALREADY A SERIOUS MATTER ABOUT A CERTAIN ITEM OF EVIDENCE BEING LOST.

First explicit mention of a lost or missing item of evidence — a serious allegation dropped almost casually.

Marcia Clark

YOU KNOW WHAT, YOUR HONOR? I DON'T WANT TO HEAR ANOTHER WORD FROM MR. SCHECK. FORGET IT. WE WON'T OPEN ANYTHING.

Clark's exasperation boils over — she withdraws her own request rather than continue sparring with Scheck.

Marcia Clark

I DO NOT KNOW WHETHER IT'S BEEN OPENED BEFORE.

Clark's candid admission of uncertainty about the evidence's handling since it was returned undermines her own chain-of-custody position.

Evidence (2)

Informal

Evidence boxes returned from defense experts — out of original order, no inventory list, contents unknown

discussed, ultimately not opened

Informal

Specific item of evidence discussed in chambers the previous day — reportedly missing, no photographic record of original packaging

flagged as potentially lost

Notable Exchanges (3)

Marcia Clark•Barry Scheck

Scheck repeatedly demands a systematic, witnessed process for opening returned evidence boxes; Clark wants to open them immediately on the record; Clark eventually snaps and withdraws her request entirely.

heated

Lance A. Ito•Marcia Clark

Clark asks to be excused; Ito flatly says 'No.'

terse

Lance A. Ito•F. Lee Bailey

Bailey asks to print a list and warns it makes noise; Ito asks why with apparent dry amusement.

light

Light Moments (1)

F. Lee Bailey

Bailey warns his printer makes 'more noise than you want the jury to hear'; Ito's question suggests mild bemusement.

Credibility Attacks (1)

⚔ Prosecution evidence handling

chain of custody challenge

Scheck highlights that returned evidence boxes had no inventory list, were not in original order, a videotape of expert openings exists, and at least one item may be missing with no photographic packaging record — laying groundwork for later attack on evidence integrity.

Objections

None recorded

Proceeding 4943 • 32 utterances

Criminal Trial

Department 103