Chain of Evidence
Would the Evidence Against Oswald Have Been Admissible in Court?
"Evidence Summary"Marrs makes a number of bogus claims here. For example, the dented lip of Commission Exhibit 543 does not preclude it having been fired from Oswald's rifle, since it was likely dented as it was ejected. But the key issue is whether the evidence against Oswald would have been admissible in court.
Oswald's palm print reportedly found by a Dallas policeman on the underside of the dismantled rifle barrel has no chain of evidence and would not have been permitted in a court of law. Further, it can be shown that the incriminating palm print was likely made at Miller Funeral Home by placing the dead Oswald's hand on the rifle (457).
There is yet another problem with the empty rifle hulls. Although the Warren Commission published a copy of the Dallas Police evidence sheet showing three shell cases were taken from the Depository, in later years a copy of that same evidence sheet was found in the Texas Department of Public Safety files which showed only two cases were found. This is supported by the FBI receipt for assassination evidence from the Dallas Police that indicates only two shell cases arrived in Washington just after the assassination.
Reportedly, Fritz held on to one of the cases for several days before forwarding it to the FBI. This breach of the chain of evidence causes suspicion to be raised about the legitimacy of the third shell. This suspicion is compounded by the fact that while the FBI Crime Lab determined that two of the hulls show marks compatible with being loaded in Oswald's rifle, the third showed no such evidence.
In fact, the third hull - designated Commission Exhibit 543 - had a dent on its lip that would have prevented the fitting of a slug. In its present condition, it could not have fired a bullet on that day (438).
"An Incriminating Palm Print"
The sole piece of hard evidence linking Oswald to the Mannlicher-Carcano rifle was a palm print reportedly found on the underside of the gun's barrel when the rifle was disassembled.
It seems strong evidence until inspected closely. To begin with, the palm print would never have been admitted as evidence in any courtroom trial because it totally lacked a chain of evidence - the unquestioned and documented path from discovery to presentation in court (443).
"The Shooting of J.D. Tippit"
According to the Dallas police radio log, a "white jacket" was found by "279 (Unknown)" a full fifteen minutes before Westbrook arrived on the scene. The Commission made no effort to determine who really found the jacket, if a jacket was actually found, or if it was a white jacket that only later was transformed into Oswald's gray jacket.
Recently, the owner of the Texaco station where the jacket reportedly was found told Texas researchers that no one - neither the FBI, Dallas police, nor the Warren Commission - ever questioned him or his employees about this important piece of evidence.
In addition, the jacket identified by federal authorities as belonging to Oswald carried inside a laundry mark "30 030" and a dry-cleaning tag "B 9738." A full-scale search by the FBI in both Dallas and New Orleans failed to identify any laundry or dry cleaners using those marks.
Oswald's wife, Marina, testified she could not recall her husband ever sending his jackets to a cleaning establishment, but that she did recall washing them herself. Further investigation by the FBI turned up no laundry or dry-cleaning tags on any of Oswald's other clothing.
With all this, plus a broken chain of evidence, the jacket cannot be considered evidence of Oswald's guilt in the killing of Officer Tippit (347).
. . .
Then there's the problem of identification of the empty shells. Police man J.M. Poe received two cartridge cases from witness Benavides at the scene. In an FBI report, Poe firmly stated that he marked the case with his initials, "J.M.P." before turning them over to Dallas Crime Lab personnel.
However, on June 12, 1964, the FBI showed Poe the four .38 Special cases used as evidence of Oswald's guilt by the Warren Commission. The Bureau reported:"...He [Poe] recalled marking these cases before giving them to [lab personnel], but he stated after a thorough examination of the four cartridges shown to him. . . he cannot locate his marks; therefore, he cannot positively identify any of these cartridges as being the same ones he received from Benavides (343)."
Of course, whether a piece of evidence is admissible in court is a legal issue, not an historical issue. It's possible for evidence to be perfectly valid, but inadmissible because of a legal technicality. And it's also possible for faked or forged evidence to be admissible if the necessary "chain of evidence" is faked or forged too. Indeed, conspiracists argue that the Dallas cops and Federal agencies forged and faked all kinds of evidence against Oswald. If so, why wouldn't they falsify the necessary markings, testimony, and documents to render the evidence admissible? Why, for example, didn't somebody simply take officer Poe aside and have him put his marks in the spent cartridges where they were needed?
The reality, however, is that virtually all the evidence against Oswald would have been perfectly admissible in court had Oswald gone to trial. The reasons are explained in the authoritative volume Evidence for the Law Enforcement Officer by Gilbert B. Stuckey.
There are three procedures which may be followed by the officer that
will enable him to positively identify an object as the one he found, and
to establish that it has a relation to the case at hand:
1. He may keep the object in his complete and exclusive custody and control from the time it was found until it is presented in court.
2. He may maintain a complete and accurate record of the chain of possession.
3. He may mark the object in some distinctive manner which will enable
him to recognize it at a later time.
Conspiracy theorists like to claim that much of the evidence for the Oswald trial would have been inadmissible because the officers lost exclusive custody. As this brief from the O. J. Simpson Civil Trial makes clear, the law is not nearly so rigid.
Identification by custody and control. One of the most positive means whereby the officer can identify an object to be introduced in evidence is for him to keep the object in his possession, or exclusive control, from the time he picks it up at the crime scene until he produces it in court. Yet from a realistic standpoint this means is the most impracticable for a number of reasons. First of all, it is almost impossible for an officer to maintain any object under his exclusive control. Available storage facilities for such items alone makes a most difficult means of identification. Second and probably more important, in most instances that object is of such a nature that it must come into the hands of others. It may be necessary to examine it for latent fingerprints, or it may have to be examined by an expert in the crime laboratory. There is a third reason why this means of identification is impractical, and that is the "right of discovery" by the defendant. This right gives to the defendant the privilege of reviewing the physical evidence which may be introduced during the trial. The right of discovery will be discussed in Chapter 10. Consequently the officer may lose control of the objects during the review by the defendant.
Inasmuch as there may be instances when the officer is not required to release physical evidence to another, some consideration should be given to what is entailed in complete custody and control of objects. Obviously, this does not mean that the officer must carry the object with him at all times, but it does mean that from the time that he picked it up at the crime scene until it produced in court, the object has to be continuously under his exclusive control. In other words, after picking the object up at the scene of the crime, he must transport it to the station, or to a place where he will store it, and it must be kept where no one else has an opportunity to handle the object outside his presence. This necessitates a locker, or cabinet, to which only he has the key of access. This complete custody and control further implies that if the object is to be viewed or examined by another, the officer must be present at all times. All of this makes for a very clumsy system of identification, and so other means have been developed which are more workable.
Identification by chain of possession. As has been pointed out, by the very nature of some objects found at crime scene by an officer, they must pass into the hands of others besides the finder. This is particularly true when the object is one which must be examined by a crime-laboratory expert. Under these circumstances the officer loses his complete custody and control of the object. When this takes place the officer must know to whom the object was released, when it was released, and the purpose for which it was released. In other words, he must maintain the chain of possession.
Specifically, what is meant by the term "chain of possession"? It is merely the knowledge, or a record, of each person who has come into possession of a physical object found at a crime scene from the time it was discovered until it is presented in court. This record is important for two basic reasons: First, it may be the only way that it can be definitely proved that the article presented in court is the one that was found at the scene, and is thus a part of the transaction; second, this record may be the only way that it can be established that the thing examined and analyzed by the expert was the one found in connection with the crime, or that it had not in some way been altered or tampered with between the time it was found and analyzed. If this proof is not available, the object may be excluded from evidence.
"However, if all the persons who came in contact with this knife are known and are available to testify concerning their part in the transaction and can establish that the knife had not been tampered with, the knife and the analysis will undoubtedly be admitted in evidence."
To cite an example of how the doctrine of chain of possession works and how it can be most important to the prosecution of a case, assume that an officer, whom we shall call A, finds a knife on a suspect in a murder case. On this knife is a stain which is believed to be blood, and so A desires that the stain be examined by a laboratory expert to determine whether this stain is blood, and whether it is of human origin, and the blood type. A gives the knife to officer B to take to the police station, where it is to be sent to the crime laboratory. Upon arrival to the station, B finds that officer C is going to the crime laboratory with some other physical evidence, and so B gives the knife to C to take also. C takes the knife to the laboratory where he turns it over to clerk D. D gives the knife to expert E, who makes a scientific examination of the stains on the knife. He concludes from his examination that the brownish stains are blood of human origin, and that the blood is of the AB type grouping, which is a rare type, and is the same type as the victim of the murder. This knife and the analysis of the expert become most important to the prosecution of the suspect. In the meantime, officer A asks officer F, who is going to the laboratory, to pick up the knife and return it to the station. F does pick up the knife and returns it to the station, where he places it in the evidence room until the time of trial. On the day of the trial, A gets the knife from the evidence room and takes it to court. There may be something distinctive about this knife which enables A to positively identify it as the one he took from the suspect even though he has lost possession of it, but how can he possibly state in convincing manner that the stains which were on the knife when he took it from the suspect are the same ones examined by the expert? He cannot do so because this knife has gone through several hands, and it cannot be proved that someone did not use this knife for some purpose between the time that it was found and that it was examined, and that the blood examined was the blood that was on the knife originally. Since this proof is not available, the knife as well as the analysis may be excluded from evidence. However, if all the persons who came in contact with this knife are known and are available to testify concerning their part in the transaction and can establish that the knife had not been tampered with, the knife and the analysis will undoubtedly be admitted in evidence.
Conspiracy theorists have claimed that much of the evidence for the Oswald trial would have been inadmissible either because the chain of possession was lost or because of tampering. Commission Evidence 399 is an example of the false claim of a broken chain of possession. The number of shells found at the School Book Depository is an example of false claims of tampering.
It accordingly becomes mandatory that some type of record be maintained which will list those persons coming in contact with the object which is to be produced in court. This is particularly true when some scientific analysis is to be made. It must be proved that there was no tampering with, alteration of, or substitution of, the object between the time it was found in connection with a crime and the time that analysis was made by the expert in the crime laboratory. In People v. Riser, 47 Cal. 2d 566 (1956), the California Supreme Court stated that the burden is on the party offering in evidence any object to prove to the satisfaction of the trial judge that there had been no opportunity for any alteration of the object between the time of discovery and the analysis. In this case Riser was convicted of the murder of two operators of a cafe; during the investigation of the case a deputy sheriff picked up some drinking glasses which he took to his office and locked in the identification trunk. He later removed them and placed them in an unlocked bookcase in his office, where they remained for approximately fours hours before he was able to dust the glasses for the purpose of developing latent prints. Latent fingerprints of Riser were found on the glasses. The prints were introduced in evidence over the objection of Riser's attorney. His attorney alleged that the deputy had lost the chain of possession during the time that the glasses were in the unlocked bookcase. The appellate court in this case held that the fingerprints were properly admitted under the circumstances. It was stated that the party relying on an expert analysis of demonstrative evidence must show that the evidence found at the scene of a crime was in fact the same evidence that was analyzed in the crime laboratory and that no substitution or tampering had taken place. It was further stated that there has been no criterion set forth for the amount of proof that would be required, but it was no considered necessary to negate all possibilities of substitution or tampering. However, the requirement of reasonable certainty that tampering has not taken place will not have been met if some vital link in the chain of possession is not accounted for, particularly when there is a possibility that the evidence analyzed was not the same as that originally found at the scene. When there is speculation that this may be the case, the trial judge must exclude the evidence. The court in the Riser case held that although the glasses were in an unlocked bookcase for approximately four hours, there was no allegation on the part of the defendant that he had had an opportunity to handle the glasses during that period or that the prints were forged; therefore the period of time that the glasses were in the bookcase did not create a vital break in the chain of possession. Attention is called to the fact that the appellate court could have just as easily taken an opposite view. Therefore it is most important that each person who comes in possession of a piece of physical evidence maintain complete custody and control in order that the evidence may not be contaminated.
Although an accurate and complete record is maintained of the chain
of possession of physical evidence, it is still highly advisable that the
objects through as few hands as possible. The reasons for this are many.
First, the fewer persons who come in contact with the physical evidence,
the less chance there is that it will be tampered with, altered, or lost
entirely. Second, what is properly most important is that each person who
comes in contact with the physical evidence may have to be called as a
witness to establish the fact that the evidence analyzed was in fact that
found in connection with the crime now in issue. The production of a long
line of witnesses to prove a relatively small segment of the case can be
a time-consuming matter as well as boring to the jury, who could well lose
interest in the case, so that the value of the physical evidence would
be lost entirely. Also where a number of witnesses are required to prove
a point, there is always that possibility that one witness in the chain
may for some reason be unavailable at the time of the trial. The unavailability
of any one witness may be enough to exclude the object from being introduced.
So returning to our example of the officer finding the knife with the stains
believed to be blood, it would have been a much better procedure for the
officer to have maintained possession of this knife until he could have
personally taken it to the crime laboratory and turned it over directly
to the blood-analysis expert. By following this procedure, three potential
witnesses could have been eliminated, that is, officer B who took the knife
to the station; officer C to transport the knife to the crime laboratory;
and clerk D who accepted the knife from C. It would have also been just
as well if officer A had obtained the knife from the crime laboratory after
the analysis was made, though once the analysis is completed the object
may be treated somewhat differently. Prior to the analysis proof must be
presented that no tampering, contamination, or substitution took place
between the finding of the object and the analysis. After the analysis
all that is necessary is that the officer who found the object be able
to recognize it at the time it is produced in court. However, there are
many objects which do not lend themselves to ready recognition, so the
chain of possession even after analysis should not be overlooked.
Evidence for the Law Enforcement Officer by Gilbert B. Stuckey.