Kenneth Vercammen & Associates
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Proof of Chain of Custody in a Case

     According to N.J. Practice, Criminal Procedure by Honorable Leonard Arnold-Retired, J.S.C. (West Publishing), Volume 32, Chapter 21, Section 1034,Honorable Leonard Arnold, J.S.C. a party seeking to introduce an item of physical evidence must prove that the item was that which was taken from a particular person or place which makes the item relevant as evidence in the trial. Such proof is provided by testimony identifying the item as having been taken from that person or place, and by evidence tracing custody of the item from the time it was taken until it is offered in evidence. This latter evidence is necessary to avoid any claim of substitution or tampering. State v. Johnson, 90 N.J.Super. 105, 216 A.2d 397 (App.Div.1965), aff'd 46 N.J. 289, 216 A.2d 392 (1966).

The required proof includes:
1) testimony by an investigator identifying the item as that which the investigator discovered and took;

2) testimony by that investigator that there was no tampering with the item while it was in his/her custody;

3) testimony regarding delivery of the item to the second person who had custody of the item;

4) possibly similar testimony by the second and each subsequent person who had custody of the item until the time of its presentation in court.  Where the item has been submitted to a laboratory for analysis, proof of the chain of custody should ideally include: testimony from the person who took the item (or specimen) to the laboratory; proof of the method of reception and storage at the laboratory prior to and after analysis; up to the time of trial. Arnold, N.J. Practice, Criminal Procedure,
Sec. 1034.

The most difficult aspect of the proof specified above is usually the identification of the evidence by the investigator who discovered it. This difficulty arises because of the frequent failure to properly "mark" the item. "Marking" means the placing by the investigator of at least his/her initials on the item. Unfortunately, sometimes items are "marked" by affixing an evidence tag to the item with a string. The investigator then puts his/her initials on the tag. When the string breaks and the tag is lost it may then be impossible for the investigator to identify the item as being the item that was discovered. Arnold, N.J. Practice, Criminal Procedure, volume 32, Section 1034.

Many excellent texts, one such text is the Handbook of Forensic Science, published by the Federal Bureau of Investigation provide information on the proper "marking" of various types of evidence, and they should be studied by investigators having responsibility for the collection of physical evidence. But the basic rule is as follows: The item should be "marked" by the investigator placing his/her initials, date, and the case number on the item itself. Metallic surfaces should be so "marked"
with a machinist's scribe. Liquids, soils and small fragments should be placed in a suitable container and sealed. The container should be "marked" by scribing the same information on the container, or by using some other permanent form of marking material on the container. Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.

With respect to avoiding a claim of substitution of another item for that seized or a claim that the item has been tampered with, the problems of proof can be minimized by designating one investigator as the custodian of all the physical evidence in a given investigation.

All investigators who recover physical evidence must turn that evidence over to the custodian, who is then responsible for the evidence from that time forward until trial. Where evidence must be submitted to a laboratory, the custodian delivers that evidence to the laboratory, and obtains a receipt from the laboratory. When the laboratory has completed its examination, it is the custodian who returns to the laboratory, receives the remaining specimen1 from the laboratory, and retains custody of the specimen and brings it to court for trial. By following this procedure, all the physical evidence can be introduced by
calling the various investigators who recovered and marked each item of physical evidence, the custodian, and the laboratory specialist who examined the evidence. (The laboratory specialist testifies not only with respect to the laboratory examination, the specialist's findings and opinion, but also as to the method of reception and storage at the laboratory prior to and after analysis.) Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.

The identification of evidence and chain of evidence rules require that the proponent of the evidence show that the evidence has not been tampered with, and that there has not been any irregularity which altered its probative value. State v. Roszkowski, 129 N.J. Super. 315, 323 A2d 531 (App.Div. 1974).

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       Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week for litigation and contested Probate hearings.

       Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

       He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

       He established the NJlaws website www.njlaws.com which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005
Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998
East Brunswick AARP Wills 2001; -Iselin/ Woodbridge AARP Wills 2000
Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001
North Brunswick Senior Day 2001
Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993
Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995
Senior Citizen Law-Perth Amboy YMHA 1995; Temple Beth Or 2002;
Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993
Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994
Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994
Wills and Estate Planning-Edison Elks and Senior Citizens January 1994
"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993
Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993
BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
Improving Your Elder Law & Estate Practice San Francisco, CA 2007
Elder Law and Estate Planning- ABA Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need ABA Hawaii 2006
Marketing Success Stories ABA Toronto 1998
Opening a Business-Sayreville Adult School 1997,1996,1995
Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996

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Last Revised April 29, 2008

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