You’re on the way to court.  You swing by the police property warehouse to get the evidence for your trial, and you are told it is no longer available, or at least in a suitable condition for presentation in court.  The recent flood/tornado/hurricane has damaged the building and your property was destroyed. 

After Super Storm Sandy hit the New York/New Jersey area, several police warehouses in Brooklyn were flooded with raw sewage. In a similar vein, after Hurricane Katrina in New Orleans, many people sat in jail awaiting trial, but there were no public defenders and limited prosecutors to try them.  How long can you keep people presumed innocent in jail waiting for the lawyers to return and the courthouse to be made habitable?

What to do?  What will happen to your case?  Will a bad guy go free because of the natural disaster or a fire?  As with many questions in the law, it all depends.

When a defendant is charged with possession of something illegal, drugs, guns, stolen property, gambling slips, he has the right to have it produced in court.  The jury must see it. The court must rule it is, in fact, what it purports to be. Although those charged with Possession of a Stolen Motor Vehicle get tried with the VIN number alone. Can’t bring the car into court. No hard and fast rules.

Many years ago I was trying a man for possession of gambling paraphernalia.  We moved the bolita slips into evidence.  They sat on the clerk’s desk for several hours.  When it was time to submit the case to the jury, the slips were missing. Did the defendant eat them?  Without proof of that, despite my strong suspicions, the case was dismissed.  Since then, just as with knives, scissors, guns and bludgeons, all evidence was kept far from my defendants.

What happens when other evidence, needed for trial, but not the typical contraband that possession of is illegal, is not available?  The witnesses saw the robber fleeing with a red jacket, and that is missing or destroyed. A good defense attorney will argue that the jacket the defendant was wearing when arrested, was not the same shade of red the robber wore.  He will want to show it to the witnesses and see what they say.

What happens when the firearm the armed robber used and was arrested with is now gone?  How do we show that to the jury.  Good crime scene techs will take plenty of photos.  Many bulky items, like furniture or the forced door to a home are generally not brought into court when a photo will satisfy the question of what it looked like.  Usually bloodstains on a rug will have samples cut out for testing, but a photo of the stains on the rug will suffice for trial.  Does that mean we can’t bring the rug in?

Of course not.  That’s what trial tactics are all about.

When one defendant told the detective he left home for a few days after his friend and a lady who was visiting him “hit it off” and did not notice the huge blood stains on the rug upon his return, we brought the entire section to court.  The jurors were covering their noses as the defendant told us how he lived there for two weeks until his arrest.  He noticed nothing wrong.   I doubt the fact that the carpet was hermetically sealed for two years changed matters much!

Another defendant, charged with transporting two hundred bales of marijuana on a boat feigned no knowledge of the contents of the cargo hold.  A photo of the bales would not make the point we needed. Bringing 6 of the 50 pound bales into the court (as opposed to the minimum amount necessary for trafficking weight), sealed his fate.  Half the courthouse got high from the smell.

Producing physical evidence is not necessary, but it can be important.  But what happens when it is gone? There are trial problems that will arise, not necessarily resulting in a dismissal, but something that can cause the jury to find reasonable doubts.

Most states have some form of pre-trial discovery.  That means the prosecution sends the defense attorney a letter announcing, not only what his evidence is, but that it may be “examined, copied, photographed and tested.”  While this is form language in the letter, it can be very important should these problems arise. 

In major murder cases, many attorneys do examine the evidence before trial and may even have certain items tested by their own independent experts.  Some forgo that right. When the prosecution announces the unintentional destruction of the evidence, the defense attorney’s failure to “examine and test” can be fatal to his objections.

What happens when the small amount of drugs found on a defendant is “consumed in the testing” process.  Now the defense attorney demands his right to “examine and test.” The law varies by jurisdiction, but his lack of opportunity to test may merely become a jury issue, but the trial can proceed.

One case I tried some time ago involved the forcible rape of a girl under 12, by a person over 18. This is called capital rape in Florida, but now is merely punished by life in prison. Doctors at the Rape Treatment Center (RTC) examined the victim, washed out her vaginal vault and placed the contents into a sealed test tube, marked it and had it shipped to the police lab.  The chemist broke the seals, analyzed the contents, and found the DNA of the defendant therein. The chemist resealed the evidence and forwarded it to the property room.

Five years later, after a jury was selected and the first few witnesses testified, I asked the detective to bring the test tube to court the next day.  It had been tossed, as the case was five years old, and some custodian assumed the case was over.  What are we to do?

First we announced to the court the missing evidence.  When the defense attorney stopped yelling and dancing, I reminded the court of our offer to “examine and test.”  We put the head person of the property room on the stand to testify to his foolish but good faith destruction. 

Then the chain of custody was proven thru the RTC doctor, the detective, the chemist, and then back to the property room.  All property receipts were produced.  The chemist was allowed to testify to her analysis.  The defense attorney did his dance again for the jury, but his client was convicted and given a “Buck Rogers” sentence;  he gets out in the Twenty-fifth century.  I was concerned about his constitutional right to “confront the evidence against him.”  Thankfully, the court of appeals ruled he had waived it!

Most of the property taken by the police may never be used.  Some cases are not filed, or defendants are placed into pre-trial diversion programs.  Others take pleas. Most of the damaged property in the warehouse will not be a problem.  Of the few that do go to trial (5% in Dade County) the evidence must be protected. 

Procedures must be in place prohibiting the destruction without the approval of the lead detective, who must have a memo from the prosecutor that the case is closed.  The detective should go to the property room a week before trial. 

Most things that are “not here” have merely been misplaced.  It will take a few days to find it.  If all goes well in trial, and the defendant is convicted and receives a healthy sentence, the property will be in the possession of the court clerk.  They have less to be responsible for, and should there be a reversal and new trial ordered, check with them to make sure the evidence is still available.  Have them keep it forever.

The department can then destroy any property we did not use. Occasionally, the clerk’s office will attempt to clean out their overflowing evidence room.  They will circulate a memo with cases listed, before going to the court for an order to destroy.  Check that list very carefully.  I once saw a murder case listed that had yet to be tried (some of the evidence had been used in another trial).

If all else fails, honesty with the court and a good chain of custody will usually help.  Plenty of photos will also assist. In addition to photos there should be sufficient documentation, in case the property suffers a weather calamity.

A woman was taken to the emergency room, unconscious and close to being brain dead. The cops were notified.  As if that were not enough of a tragedy, it was learned that her boyfriend had given her one Ecstasy pill, he being her counselor at the drug program. There was not much of a crime scene to examine, but the detectives got a Consent to Search from the live in boyfriend.  A quantity of prescription pill vials was observed, as the woman had other medical problems.

Each vial was recorded on a property receipt, listing the name, the amount prescribed, the amount left, and the size, shape and color of each pill, along with any lettering or imprint.  Why was this important? 

When the medical examiner’s office accidentally disposed of the pills, the defense became, “She overdosed on those pills and we cannot prove it.”

Due to the exact descriptions recorded, the ME’s toxicologist was able to accurately identify each prescription, and none of them showed up in the autopsy toxilogical report. Another argument, which didn’t get far, was that the drug-addicted woman might have had other drugs in those vials.  That failed as her tox screen only showed Ecstasy.

I am not suggesting we should lose things, but accidents do happen.  Be prepared for them and try lessen their impact.

An efficient police property custodian can properly empty his warehouse of most items within 90 days of arrest, merely by checking with the prosecutor’s office on the status of those cases.

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with of the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall. He can be reached at [email protected] or thru LET.