721.1Real Evidence: Non-fungible

Generally

Real evidence consists of objects offered as having played an actual direct role in the incident giving rise to the trial.  State v. Harbison, 293 N.C. 474, 483, 238 S.E.2d 449, 454 (1977); State v. Glasco, 160 N.C. App. 150, 154, 585 S.E.2d 257, 261 (2003).  When real evidence is properly identified, it is freely admissible.  State v. Bryant, 50 N.C. App. 139, 140–41, 272 S.E.2d 916, 918 (1980).  The trier of fact is permitted to draw inferences from the objects themselves about some fact of consequence.  See 2 Kenneth S. Broun, et al., McCormick on Evidence 11 (6th ed.2006).

Real evidence is admissible upon a showing (1) that such evidence is the same object involved in the incident, and (2) that since the incident the object has undergone no material change in its condition.  State v. Campbell, 311 N.C. 386, 388, 317 S.E.2d 391, 392 (1984); State v. Green, 281 N.C. App. 699, 706, 869 S.E.2d 364, 370 (2022).  There are no specific rules for determining whether an object has been sufficiently identified.  Bryant, 50 N.C. App. at 141, 272 S.E.2d at 918. Accordingly, “[d]etermining the standard of certainty required to show that the item offered is the same as the item involved in the incident and that it is in an unchanged condition lies within the trial court’s sound discretion.”  State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d 720, 736 (1999).

Real evidence remains subject to the general rules of relevancy (Rule 402) and undue prejudice (Rule 403) and to constitutional exclusionary rules.  2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence 993 (8th ed. 2018).

Identification

The requirement of authentication or identification is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.  N.C. R. Evid. 901(a); see also State v. Snead, 368 N.C. 811, 814, 783 S.E.2d 733, 736 (2016).  This can be done by calling a witness, presenting the exhibit, and asking the witness if he or she recognizes the exhibit and, if so, what it is.  State v. Williamson, 146 N.C. App. 325, 336, 553 S.E.2d 54, 61 (2001).  The identification of real evidence “need not be unequivocal.”  State v. Smith, 134 N.C. App. 123, 125, 516 S.E.2d 902, 905 (1999); cf. State v. Andrews, 56 N.C. App. 91, 95, 286 S.E.2d 850, 853 (1982).

For representative cases, see Fleming, 350 N.C. at 132, 512 S.E.2d at 736 (no plain error in admitting black watch found at the crime scene and identified by several witnesses as the defendant’s watch); Green, 281 N.C. App. at 707, 869 S.E.2d at 370 (no error in admitting a handgun identified as that recovered from the defendant’s brother); Glasco, 160 N.C. App. at 155, 585 S.E.2d at 261 (no error in admitting AK-47 rifle, brown bag, plastic garbage bag when items were identified by officer as those found on defendant’s person or near where defendant was seen a jumping fence); Williamson, 146 N.C. App. at 336, 553 S.E.2d at 61 (no error in admitting video case identified by officer as that recovered from the defendant’s bedroom); State v. Cobbins, 66 N.C. App. 616, 621, 311 S.E.2d 653, 657 (1984) (no error in admitting a pistol barrel identified by a witness as the one he pointed at the defendant); State v. Taylor, 56 N.C. App. 113, 115, 287 S.E.2d 129, 130 (1982) (no error in admitting pistol, army jacket, and $89 in currency identified by officer as those recovered from the defendant’s vehicle).

Change in Condition

If the condition of the item is important to its identity, the unchanged condition is part of the authentication requirement.  2 Broun, McCormick on Evidence, 12.  Unchanged condition may be inferred from the item itself.  Id.; cf. State v. Oliver, 302 N.C. 28, 53, 274 S.E.2d 183, 199 (1981) (“the very nature of the items themselves would make a change in condition extremely unlikely”).  “The possibility that physical evidence has been contaminated does not, by itself, bar that evidence from being authenticated and admitted.”  State v. Jackson, 277 N.C. App. 106, 110, 857 S.E.2d 140, 143 (2021).  In a drug case, the “smashing” of the drugs (rock to powder) does not amount to a “material change[] raising admissibility concerns.”  State v. Dawkins, 269 N.C. App. 45, 49, 837 S.E.2d 138, 142 (2019).

For representative cases, see Oliver, 302 N.C. at 53, 274 S.E.2d at 199 (no error in admitting several items, including clothes, pistol, and bullets despite lack of positive testimony that the objects had undergone no material change); Jackson, 277 N.C. App. at 110, 857 S.E.2d at 144 (no error in admitting white rocks identified by chemical analysis as cocaine despite the possibility the white rocks were contaminated when the detective handled them with his bare hands and placed them in his car); State v. McAllister, 190 N.C. App. 289, 299, 660 S.E.2d 247, 253 (2008) (no error in admitting DNA evidence despite supposition that lead detective had motive and opportunity to plant evidence); State v. Brown, 176 N.C. App. 72, 81, 626 S.E.2d 307, 314 (2006) (no error in admitting computers despite argument that computers were susceptible to alteration during seizure and storage); Glasco, 160 N.C. App. at 155, 585 S.E.2d at 261 (no error in admitting AK-47 rifle and magazine despite argument that the evidence could have been altered).

Chain of Custody

Chain of custody refers to the movement and location of real evidence, and the history of those persons who had it in their custody, from the time it is obtained to the time it is presented in court. Black’s Law Dictionary 277 (10th ed. 2009); cf. McAllister, 190 N.C. App. at 296, 660 S.E.2d at 252 (assimilating identification with chain of custody).  When an item of real evidence can be specifically identified by a testifying witness, as by its unique characteristics, it is not necessary to establish a chain of custody.  State v. Taylor, 344 N.C. 31, 48, 473 S.E.2d 596, 606 (1996); State v. Kistle, 59 N.C. App. 724, 726, 297 S.E.2d 626, 627 (1982); Andrews, 56 N.C. App. at 95, 286 S.E.2d at 853; cf. 2 Broun, Brandis & Broun, 993-94 (“if the witness can positively identify the object . . . proof of interim custody may be unnecessary”).

“A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered.”  Campbell, 311 N.C. at 389, 317 S.E.2d at 392; accord Snead, 368 N.C. at 815, 783 S.E.2d at 737.  “Further, any weak links in a chain of custody relate only to the weight to be given evidence and not to its admissibility.”  Campbell, 311 N.C. at 389, 317 S.E.2d at 392; accord Fleming, 350 N.C. at 131, 512 S.E.2d at 736.  Most of the cases in which chain of custody issues are raised found no error in the admission of the evidence.  2 Broun, Brandis & Broun, 994 n. 92.

For representative cases, see State v. Bucklew, 280 N.C. App. 494, 867 S.E.2d 362, 375, (2021) (chain of custody for blood sample established when the security seal upon the vial and the chain of custody report tended to prove that the sample at all times contained defendant’s blood); Dawkins, 269 N.C. App. at 50, 837 S.E.2d at 142 (chain of custody for drugs established by testimony from police officer and lab technician that proper procedures were followed); State v. Berryman, 170 N.C. App. 336, 340, 612 S.E.2d 672, 675 (2005) (same), aff’d, 360 N.C. 209, 624 S.E.2d 350 (2006); State v. Ferguson, 145 N.C. App. 302, 313, 549 S.E.2d 889, 897 (2001) (detailed chain of custody was unnecessary when motel owner identified the registration card as that completed by defendant); State v. Stinnett, 129 N.C. App. 192, 198, 497 S.E.2d 696, 701 (1998) (no error in admitting two dollar bill found in the defendant’s bag, though arresting officer did not remember seeing the item); State v. Taylor, 332 N.C. 372, 389, 420 S.E.2d 414, 424 (1992) (chain of custody established by testimony from each person who handled the projectile that he had custody of the bullet and that it was not altered); State v. King, 311 N.C. 603, 618, 320 S.E.2d 1, 10 (1984) (chain of custody established by testimony from officer who took custody of weapons seized from the defendant’s car and by SBI agents who examined the weapons); State v. Bell, 311 N.C. 131, 144, 316 S.E.2d 611, 618 (1984) (chain of custody for hawkbill knife found in glove compartment of co-conspirator’s car established by evidence that car was towed to privately owned garage where it remained until searched); State v. Newman, 308 N.C. 231, 241, 302 S.E.2d 174, 181 (1983) (chain of custody established by testimony that items seized from the defendant were tagged and placed in police locker until retrieved for trial).