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Crime scene evidence and chain of custody

Summary of the topic

Physical evidence is worth only what can be proved about it later. This topic covers the law behind scene work: the officer duties in article 2A.051, the inquest rules in Chapter 49, the forensic analysis rules in article 38.35, the retention duties in articles 38.43 and 38.50, and the offense of tampering in Penal Code section 37.09. The chain of custody runs through all of it. It is a continuous, documented account of who held an item, when, and in what condition, and a question about it usually comes down to whether that account has a gap.

Article 2A.051 lists the general duties of a peace officer. Two of them frame scene work, which are to interfere without a warrant to prevent or suppress crime and to give notice to an appropriate magistrate of all offenses committed in the officer's jurisdiction.

Article 49.04 lists the deaths that require an inquest by a justice of the peace, including a death in jail, an unnatural death, a body found where the cause is unknown or the person is unidentified, and a suicide or suspected suicide. Article 49.07 requires a peace officer who learns of such a death to notify the justice of the peace immediately. Under article 49.05, except in emergency circumstances, a peace officer may not move the body without the justice of the peace's authorization, and an unauthorized person who moves or tampers with the body commits an offense punishable by a fine of up to $500.

Under article 38.35(d), a forensic analysis and the expert testimony about it are inadmissible in a criminal action if the crime laboratory was not accredited by the Texas Forensic Science Commission at the time of the analysis. Subsection (e) saves the evidence only where the laboratory was eligible for accreditation at the time and obtains it before the testimony is given.

Article 38.43 requires governmental entities, including law enforcement agencies, to preserve biological evidence collected in a felony investigation. Where there is an unapprehended actor, the evidence is kept for not less than 40 years or until the limitation period expires. After a conviction or deferred adjudication, it is kept until the sentence or supervision ends, or until the inmate is executed or dies in a capital case. Destruction under subsection (d) needs written notice to the defendant, the last attorney of record and the convicting court, and 91 days without a written objection.

Article 38.50 requires a blood or urine specimen taken in an intoxication investigation to be kept for set periods, with notice of the retention period to the person it came from. Penal Code section 37.09 makes it a third degree felony to alter, destroy or conceal a thing with intent to impair its availability as evidence, knowing that an investigation or official proceeding is pending. It rises to the second degree where the thing is a human corpse.

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