# Known perp being let go cause of "chain of custody/evidence"? **URL:** \ **Category:** Factual Questions\ **Created:** [November 3, 2006, 5:14am UTC](https://boards.straightdope.com/t/known-perp-being-let-go-cause-of-chain-of-custody-evidence/378941 "2006-11-03T05:14:41Z")\ **Posts on this page:** 8\ **Page:** 1
**Author:** ![happywaffle](https://avatars.discourse-cdn.com/v4/letter/h/ee59a6/32.png) [@happywaffle](https://boards.straightdope.com/u/happywaffle)\ **Post date:** [November 3, 2006, 5:14am UTC](https://boards.straightdope.com/t/known-perp-being-let-go-cause-of-chain-of-custody-evidence/378941/1 "2006-11-03T05:14:41Z")
In an episode of the Sopranos, a character was raped, only to have her rapist released (apparently without any charges) due to some foul-up in the chain of custody or chain of evidence or something like that. This boggled my mind; a rape victim can walk into a room, point a man out, say “He raped me,” and that’s not sufficient to arrest and charge him? Or did I misinterpret the scene? The question, more generally: what kind of tiny procedural snafus could result in a known bad guy being let go by cops? (I know, that’s an open-ended way to put it) ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [November 3, 2006, 5:31am UTC](https://boards.straightdope.com/t/known-perp-being-let-go-cause-of-chain-of-custody-evidence/378941/2 "2006-11-03T05:31:10Z")
An accusation alone is generally not enough to charge someone with a crime, you also need some evidence. (Or witnesses.) The police have very strict procedures for handling evidence and crime scenes so as to be able to prove that the evidence was not contaminated by faulty procedures or tampered with. If there is a serious violation of those procedures, a defense attorney can argue that the evidence is tainted, and if the judge agrees, it would be thrown out. Without evidence, the judge would dismiss the case. In the particular _Sopranos episode_, IIRC, it was some forensic evidence (perhaps a DNA sample) that was mishandled. Because the defense could argue that the evidence was now tainted, the prosecutor chose not to persue the case. I have no idea if that’s actually realistic, but that’s the explanation. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [November 3, 2006, 5:37am UTC](https://boards.straightdope.com/t/known-perp-being-let-go-cause-of-chain-of-custody-evidence/378941/3 "2006-11-03T05:37:48Z")
From the article “Evidence” in CJS, one of the two major legal encyclopedias, § 796: > [@](#): > > When an object passes through several hands before being produced in court, it is necessary to establish a complete chain of evidence which traces possession of the article to the final custodian, and if one link in the chain is missing, the object may not be introduced into evidence. The general purpose of requiring a chain of custody to be established is to insure that the evidence being offered is what the proponent claims it to be, and to establish the chain of custody, the proponent must trace the continuous whereabouts of the item in question. . . . > > The trial court has discretion to decide chain of custody issues, and in deciding such issues, it must consider the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of others tampering with it, and if the trial judge is satisfied within a reasonable probability that the item has not been changed in important respects, he may permit its introduction into evidence. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [November 3, 2006, 5:45am UTC](https://boards.straightdope.com/t/known-perp-being-let-go-cause-of-chain-of-custody-evidence/378941/4 "2006-11-03T05:45:54Z")
From _Federal Practice & Procedure_: > [@](#): > > It is usually unnecessary to establish a perfect or unbroken chain of custody. Given the minimal “sufficient to support a finding” standard of Rule 901(a), the courts commonly tolerate gaps in the chain that might present some limited opportunity for tampering with the evidence. The chain of custody only must be strong enough to make it reasonably probable that the item has not been materially altered or exchanged with some similar appearing item. The presence of such gaps generally raise a serious problem only where there is some significant evidence suggesting that tampering in fact occurred or, under the circumstances, the gap appears substantial. In the absence of such evidence, courts usually conclude that defects in the chain of custody affect only the weight of the evidence, not its admissibility. In fact, where the evidence was in the possession of a public official or a professional such as a physician or nurse, some courts fill gaps in the chain of custody with a rebuttable presumption that the custodian appropriately safeguarded the item. Other courts may be reluctant to recognize such a presumption, particularly where it is used against a defendant in a criminal prosecution. 31 Fed. Prac. & Proc. Evid. § 7106. (Footnotes omitted.) ---
**Author:** ![glee](https://avatars.discourse-cdn.com/v4/letter/g/b5a626/32.png) [@glee](https://boards.straightdope.com/u/glee)\ **Post date:** [November 3, 2006, 9:03am UTC](https://boards.straightdope.com/t/known-perp-being-let-go-cause-of-chain-of-custody-evidence/378941/5 "2006-11-03T09:03:14Z")
[QUOTE=happywaffle] In an episode of the Sopranos, a character was raped, only to have her rapist released (apparently without any charges) due to some foul-up in the chain of custody or chain of evidence or something like that. This boggled my mind; a rape victim can walk into a room, point a man out, say “He raped me,” and that’s not sufficient to arrest and charge him? Or did I misinterpret the scene? The question, more generally: what kind of tiny procedural snafus could result in a known bad guy being let go by cops? (I know, that’s an open-ended way to put it) [/QUOTE] (I am not a lawyer, policeman or forensic expert.) I assume that the police will need to check that the woman has been raped and gather forensic evidence. (Naturally assuming there are no eye-witnesses to the crime.) Defences to a rape victim pointing a man out could include: - mistaken identity - consensual sex - a frame-up While rape is a terrible ordeal, the evidence has to support the accusation. So a suspect will not necessarily be arrested and charged immediately. Suppose a distraught victim misidentifies her attacker (perhaps it’s a brother), and the police charge arrest and lock him up. How will that look in court when the real culprit is ‘identified’? Apart from ‘breaking the chain of evidence’, I understand that an illegal search resulting in evidence of a crime is not admissable in court. ---
**Author:** ![Diceman](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Diceman](https://boards.straightdope.com/u/Diceman)\ **Post date:** [November 3, 2006, 12:51pm UTC](https://boards.straightdope.com/t/known-perp-being-let-go-cause-of-chain-of-custody-evidence/378941/6 "2006-11-03T12:51:35Z")
[QUOTE=glee] Apart from ‘breaking the chain of evidence’, I understand that an illegal search resulting in evidence of a crime is not admissable in court. [/QUOTE] Right. This is meant to discourage the police from making illegal searches, since any evidence obtained in the illegal search will get tossed straight into the dumpster by the trial judge. ---
**Author:** ![don\_t\_ask](https://avatars.discourse-cdn.com/v4/letter/d/e68b1a/32.png) [@don\_t\_ask](https://boards.straightdope.com/u/don_t_ask)\ **Post date:** [November 3, 2006, 1:16pm UTC](https://boards.straightdope.com/t/known-perp-being-let-go-cause-of-chain-of-custody-evidence/378941/7 "2006-11-03T13:16:05Z")
[QUOTE=friedo] An accusation alone is generally not enough to charge someone with a crime, you also need some evidence. (Or witnesses.) [/QUOTE] This is true. You don’t get many people charged on the basis of an unsupported accusation. Sometimes you see crimes where it seems obvious who the guilty party is but no-one is charged due to lack of evidence. Generally the required other evidence comes from the accused or his/her associates. A well known Sydney criminal lawyer chastised a friend of mine for talking to the police when arrested. My friend said that it wasn’t a formal interrogation, just a friendly chat because “the police wanted to help him.” The lawyer told him that the legal system is so rigged in favour of the accused that the police have a very difficult job getting convictions except for the help offered by “the words from your own stupid mouth.” He gave an example of the police finding drugs in a house full of people. If no-one answers any questions about the drugs, not even to deny knowledge of them, the police then have to decide whether it is worth the effort required to obtain hard evidence to prove who “owns” the drugs. They have no idea of any story that all the suspects may later choose to tell in court. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 3, 2006, 3:15pm UTC](https://boards.straightdope.com/t/known-perp-being-let-go-cause-of-chain-of-custody-evidence/378941/8 "2006-11-03T15:15:54Z")
[QUOTE=friedo] An accusation alone is generally not enough to charge someone with a crime, you also need some evidence. (Or witnesses.) The police have very strict procedures for handling evidence and crime scenes so as to be able to prove that the evidence was not contaminated by faulty procedures or tampered with. If there is a serious violation of those procedures, a defense attorney can argue that the evidence is tainted, and if the judge agrees, it would be thrown out. Without evidence, the judge would dismiss the case. In the particular _Sopranos episode_, IIRC, it was some forensic evidence (perhaps a DNA sample) that was mishandled. Because the defense could argue that the evidence was now tainted, the prosecutor chose not to persue the case. I have no idea if that’s actually realistic, but that’s the explanation. [/QUOTE] It’s perhaps worthwhile to point out that an accusation alone is legally sufficient – that is, if you go to trial, the jury is entitled to believe testimony which establishes every element of the crime and convict on that basis. In general practice, however, juries want to see more - they want to see some kind of extrinsic evidence. So it’s not unrealistic to imagine a prosecutor chosing not to go forward with a trial if the accusation is all he has as evidence.