legal advice

As a narcotics prosecutor, getting drugs into evidence is often times the last thing you think about. This is not surprising, as you often times are worrying about how your police officer is going to describe his transaction with the defendant or how you plan on cross-examining witnesses. But having a thorough understanding of the legal requirements for getting your drugs into evidence and establishing chain of custody is critical. If you cannot get your drugs in evidence, then you have no case, regardless of how well your police officers testified or how effective your cross-examination was.
A prosecutor must establish two things to get drugs admitted into evidence. First, the prosecutor must show that the drugs offered at trial are the same drugs associated with the crime for which the defendant is charged. Second, the prosecutor must show that the drugs have not been tampered with.
How can a narcotics prosecutor provide reasonable assurances to the court of a drug's identity and unchanged condition? The answer lies with establishing an unbroken chain of custody. Establishing an unbroken chain of custody is not rocket science. In fact, as the New York Court of Appeals has observed, establishing it should be resolved in a common-sense fashion. People v. Julian, 41 N.Y.2d. at 342-44. Moreover, once an unbroken chain of custody has been established, any defects in the chain will ultimately affect the weight the jury places on the evidence, as opposed to its admissibility.
The critical factors that a narcotics prosecutor must establish are that the drugs at issue have remained in police custody throughout, and that the chemist received a sealed, identifiable container holding those drugs. People v. Matos, 255 A.D.2d at 156-57. Here are some of the questions to ask yourself in determining whether the drugs have remained in continuous police custody.
-Are the drugs in substantially the same condition as when the officer had recovered them?
-Were the drugs placed in a sealed narcotics envelope at the scene of the defendant's arrest?
-Did anyone else have access to the drugs apart from the officer in possession of the narcotics envelope?
-Were the drugs taken from the scene and brought to the precinct?
-Were the drugs assigned a unique voucher number?
-Were the drugs placed inside a narcotic safe at the precinct until they came into the possession of a police chemist?
It is the last question that some savvy defense attorneys will take issue with. Typically, drugs are not tested immediately after a defendant's arrest. In some cases, a few weeks to a month elapse before drugs are tested by the police chemist. And, when drugs are tested, they do not go directly to a chemist, but instead to the laboratory. Only when the chemist is ready to test the drugs does a clerk assign the drugs to the chemist. When the chemist is done testing the drugs, the chemist will then give it back to the clerk, who then secures it.
Using these facts, a defense attorney will argue that a drug's chain of custody could not be established, because the officer who recovered and vouchered the drugs did not see the drugs between the time he recovered it until it was tested, and because the chemist did not remember who had given him or her the narcotics or who had come to retrieve them after the testing.
Most judges know that these arguments are without merit. But you must be prepared for them, because if a judge does not understand chain of custody as it relates to narcotics, a defense argument like the one above will sound logical. In such a case, a judge will starting ordering you to call every witness who touched the drugs or who had access to them, from all the police officers who were responsible for the narcotic safe to the clerks at the laboratory who retrieved the drugs.
Of course, so long as you can show that the drugs were continuously in police custody and were in sealed condition, you have provided the reasonable assurances of the identity and unchanged condition of the drugs for its admissibility. But, just because you were able to get the drugs into evidence, does not necessarily mean the jury will give it the appropriate weight. If the defense starts cross-examining your witnesses on chain of custody issues, then he will more likely than not raise those arguments to the jury during his summation. You should consider protecting your case by calling a few witnesses that can bolster your proof that the drugs were, in fact, in continuous police custody.