Plaintiff Motion (Goldman) to Establish Chain of Custody of Evidence

DANIEL M. PETROCELLI (State Bar No. 97802)
EDWARD M. MEDVENE (State Bar No. 32227)
THOMAS P LAMBERT (State Bar No. 50952)
PETER B. GELBLUM (State Bar No. 102695)
11377 West Olympic Boulevard
Los Angeles, California 90064-1683
(310) 312-2000
Attorneys for Plaintiff



FREDRIC GOLDMAN, etc. et al.,


Case No. SC 031947
Consolidated With
Case No. SC 036340
Case No. SC 036876


Trial Date: September 17, 1996


At the trial of this action, plaintiff Fredric Goldman intends to introduce evidence of the results of scientific testing (e.g., DNA tests) performed on key items of physical evidence collected in this case. This physical evidence-including blood, hair, and fibers - was collected by a number of LAPD criminalists from the crime scene on Bundy, the Rockingham residence, the Ford Bronco, and the body of defendant Orenthal James Simpson. Each item of physical evidence was handled by at least three people from the time it was collected to the time it was tested. To lay a foundation for the results of scientific testing of the physical evidence, Goldman intends to establish a sufficient chain of custody for each tested item of physical evidence, showing that it was "reasonably certain" that each item tested by a laboratory was the same item that was originally collected./1

The actual evidence establishing a continuous chain of custody includes official written reports from LAPD personnel and others documenting their collection or handling of items of physical evidence and chain of custody reports logging each movement of a given item of evidence from its collection to the time it was tested. The chain of custody reports necessarily contain the observations of several different individuals. In all, hundreds of individual records in combination establish the continuous chain of custody for the many items of relevant physical evidence that were collected and tested in this case./2

To help streamline the trial, and to avoid unnecessary and lengthy testimony, Goldman hereby seeks an order in limine permitting chain of custody to be established for each of the items set forth in Appendices A (blood evidence) and B (hair and fiber evidence) through the testimony of witnesses Gregory Matheson and Susan Brockbank, respectively, and summary exhibits to which the witnesses will refer during their testimony. The proposed procedure, which is commonly used in criminal cases, is appropriate because: (1) all of the chain of custody documents are admissible under the official and business records exceptions to the hearsay rule; (2) the testimony of individual members of the chain of custody is not required; and (3) summary evidence (as opposed to the introduction of thousands of individual documents) is permitted by the voluminous records exception to the best evidence rule.

A. The Chain of Custody Documentation is Admissible Under the Official Records Exception to the Hearsay Rule.

Goldman will present competent testimony by witnesses Matheson and Brockbank -- who work at the LAPD Scientific Investigations Division and were involved in the collection, storing, and testing of the evidence in this case/3 that all of the chain of custody records in this case (1) were created by a public employee within the scope and regular course of his or her duties/,4 (2) were created "at or near the time of the act, condition, or event" recorded, and (3) "[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness." Cal. Evid. Code 1271, 1280. In addition to the testimony of Goldman's witnesses, the "trustworthiness" of the chain of custody documentation also is established by the presumption that public offlcials -- such as the LAPD criminalists and scientists in this case - correctly perform their duties. Cal. Evid. Code 664 ("It is presumed that official duty has been regularly performed."). Thus, the chain of custody documentation at issue is presumptively trustworthy, shifting the burden on Simpson to prove otherwise.Based on the testimony of Goldman's "qualified witnesses" and the "official duty" presumption, all of the documents establishing the chain of custody for the items of physical evidence at issue will be admissible under the business and official records exceptions to the hearsay rule. See, e.g., County of Sonoma v. Grant W., 187 Cal. App. 3d 1439, 1450-52 (1986) (records from blood laboratory establishing chain of custody admissible as business records where one witness testified to the reliability of the lab's procedures); People v. Aguilar, 16 Cal. App. 3d 1001, 1005 (1971) (chain of custody statement on envelope containing evidence constituted a "practical procedure developed by the police" and satisfied business and official records exceptions).

B. The Testimony of Members of the Chain of Custody is Not Required.

The testimony of Matheson and Brockbank that they are familiar with the procedures for preparing the various chain of custody documents, that the persons who prepared the documents had a duty to do so, and that the documents were prepared at or near the time of the events recorded on them is sufficient to establish all of the foundational requirements of the business and official records exceptions. People v. Clark 3 Cal. 4th 41, 151 (1992). The further testimony of the individuals who prepared each entry in the various chain of custody documents is unnecessary. California courts routinely admit official and business records, including chain of custody documents, without the testimony of any of the persons who prepared the records. County of Sonoma 187 Cal. App. 3d at 1450-52 (chain of custody records admissible without testimony of individual members of chain); Aguilar, 16 Cal. App. 3d at 1005 (same); see also People v. Wardlow, 118 Cal. App. 3d 375, 388 (1981) (autopsy report admissible without testimony of examining coroner who prepared report); People v. Utter, 24 Cal. App. 3d 535, 552 (1972) (hospital records admissible to prove blood type despite lack of testimony from technician who performed blood test). Indeed, the very object of the business and official records exceptions is to "eliminate the calling of each witness involved in preparation of the record and substitute the record of the transaction instead." County of Sonoma, 187 Cal. App. 3d at 1451 (business records); McNary. 45 Cal. App. 4th 688 (official records).

C. The Chain of Custody Documentation May Be Introduced Through Summary Exhibits and Testimony.

To avoid unnecessarily prolonging the trial in this case, Goldman does not intend to introduce into evidence the hundreds of actual chain of custody documents. Instead, Goldman seeks to establish the chain of custody for the various items of physical evidence (which is simply part of the foundation for the various scientific test results) through summary exhibits introduced in connection with the testimony of knowledgeable witnesses Matheson and Brockbank. The use of "written or oral" summary evidence instead of the original writings is appropriate whenever there are "numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole." Cal. Evid. Code 1509. Here, the chain of custody documentation consists of a huge number of reports. Introduction of each one individually would involve an extensive and unnecessary waste of time and judicial resources. Accordingly, Goldman's chain of custody witnesses should be permitted to testify regarding chain of custody in summary form and with the aid of summary exhibits.5


For the foregoing reasons, Goldman respectfully requests that the Court issue an order in limine permitting Goldman to establish the chain of custody for the physical evidence listed in Appendices A and B through the summary testimony of witnesses Matheson and Brockbank, respectively.

Dated: August 26,1996


Attorneys for Plaintiff Fredric Goldman


1. To establish a proper chain of custody for the physical evidence at issue, rendering that evidence (and the various tests thereon) admissible, Goldman need only "show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration." People v. Riser. 47 Cal. 2d 566, 580 (1956) (emphasis added). Where there is only "the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." Id. at 581; accord People v. Lozano, 57 Cal. App. 3d 490, 493-96 (1976).

2. The chain of custody documentation consists primarily of the following: (1) property reports from criminalists recording the collection or sampling of a particular item; (2) "Request for Physical Evidence Examination" forms documenting the circulation of evidence between government agencies; (3) chain of custody logs on the envelopes in which evidence was stored and transported; or (4) chain of custody reports --compiled by the LAPD, summarizing all movements of each item of evidence, including collection, transport to the LAPD crime lab, and all handling of the evidence for testing.

3 During the relevant time period, Gregory Matheson was a chief forensic chemist 1 at, and the assistant director of, the LAPD SID laboratory. Among his other duties relating to this case, he managed the delivery of items of physical evidence for testing at other laboratories. Susan Brockbank was a criminalist assigned to the trace analysis unit of the SID and also was involved in delivering relevant items of physical evidence to other laboratories for testing.

4 The official records exception is fully applicable to all chain of custody documents in this case even though some of the scientific testing at issue was done by non-governmental laboratories. Imachi v. Dept. of Motor Vehicles, 2 Cal. App. 4th 809, 817 n.5 (1992) (even where the laboratory performing the tests is not "itself a public entity, the Analyst performing chemical tests for a law enforcement agency would be a 'public employee' within the statutory definition of that term"), disapproved on other grounds by McNary v. Dept. of Motor Vehicles, 45 Cal. App. 4th 688 (1996). Moreover, the business records exception applies in any event because "'a business includes every kind of . . . governmental activity." Cal. Evid. Code 1270; see also People v. Champion, 9 Cal. 4th 879, 915-16 (1995) (admitting testimony of fingerprint expert regarding report prepared by other laboratory employee because expert's testimony established foundational facts for business records exception).5 The "voluminous records" exception to the best evidence rule is subject only to the condition that "the court in its discretion may require that [the original] writings be produced for inspection by the adverse party." Cal. Evid. Code 1509. Here, Simpson has had the underlying chain of custody documents for about two years. If necessary, however, Goldman can make them available again.