Chain of custody; insurance

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Cowdoc

Registered
Messages
30
Reaction score
2
Location
Rome, GA, USA
# of dives
200 - 499
I have been training a new team for the county EMA using DRI philosophy and methods. (Blades, I made a disclaimer on the first day that I was not a DRI trainer or employer, just a student.) We are all volunteers, and none of us are LEO's. One diver is a county FF. County financial support is nearly non-existent.

Question 1: If an LEO cannot assume custody of evidence in situ on the bottom, how do we maintain the chain such that the evidence cannot be impeached? I have an U/W camera, but visibility is 1 foot on a good day.

The team has been training with the verbal assurance that we were covered by the County's Workmen's Comp. I learned today that we have not been covered and may not be covered in the future.

Question 2: Should we just bail given that the County would leave us hanging if an injury occurred? I'm not sure of the personal insurance coverage of the other divers.
I'm not sure that we have the County's liability insurance either.

Did I mention that I have to whine to get air fills, and that I used personal funds to rent a pool for the first two training sessions?

Any advice will be appreciated.
 
The chain of evidence for PSD’s is no different than anyone else. Just make sure every move, every person and every location is documented and how it was secured. Who, What, When, Where and How.

If you’re not an employee don’t figure on Workman Comp helping out. They can be a battle even if you’re covered. I know as I have a legal battle going with them now.

Check with your personal insurance ref the coverage but I doubt if they are going to jump in and help.

Sounds like your county is lacking in Iron. Someone needs to be smacked in the head with a cast iron skillet. :bash: You know the mentality of not needing you until they need you attitude.

Good luck
 
I will try to explain the chain of custody thing. The chain of custody relates to how evidence is kept as to a certain extent as to how the way evidence is collected. The chain of evidence means an identifiable person must always have the physical custody of a piece of evidence. In practice, this means that a diver that collects the evidence will take charge of a piece of evidence, document its collection, and hand it over to an police investigator or evidence clerk for storage in a secure place. These transactions, and every succeeding transaction between the collection of the evidence and its appearance in court, should be completely documented chronologically in order to withstand legal challenges to the authenticity of the evidence.

Documentation should include the conditions under which the evidence is gathered, the identity of all evidence handlers, duration of evidence custody, security conditions while handling or storing the evidence, and the manner in which evidence is transferred to subsequent custodians each time such a transfer occurs (along with the signatures of persons involved at each step).

For example, suppose a diver finds a handgun. Measurements are taken as well a photographs to document the location. Commonly a metal rod could be driven into the river bottom to further document the location. The gun should be placed in a container that also holds the water in which it is found. I like using a PVC pipe with test caps on the end to keep the gun in. An evidence tag and tamper proof seals are put onto the container. Initials of the finder should be scribed onto the gun and a evidence form kept showing the name and date of each person the gun is given to, the description of the evidence, etc..

If I find a gun diving I do all the above and submit it to the crime lab for analysis. A receipt is kept of each person whose hands the gun goes through. After getting the gun back from the lab I sign for it and then place it into my evidence locker and maintain possession of it up to the time it is introduced into evidence at trail. I then file the certificate of analysis with the clerk of the court where the trail is heard. (Your state requirements may vary). This is a brief example of chain of evidence.

The problem is that you can still maintain a proper chain of evidence and still manage to screw up a criminal case big time by improper evidence handling proceedures if you are not trained to handle evidence, especially evidence found in the water. A gun could hold latent prints underwater for possibly five days. A fresh gun should be handled in a manner that will enable the prints to be collected and not smudged. A person may try to work the action of the gun to determine if it is loaded. Failure to properly document the condition of a gun is very bad mojo. Just because you can document the chain of possession of evidence does not mean that it will be admissible if it was contaminated somehow while it was collected or improperly stored.

For example, if it is a revolver the gun needs to marked which chamber is aligned with the hammer and a sketch made of the cylinder indicating which cylinder is empty, loaded, or has a fired casing in it. Document whether the cylinder rotates clockwise or counterclockwise, etc.Failure to do this could jeapordize a court case.

In the example of the gun found in water it is necessary to package it with the water in which it is found. Even exposing it in air for just a short time could cause flash rust to occur which could jeopardize microscopic analysis of the gun.

Other evidence such as clothing could be destroyed if stored wet and not air dried before packaging. Some evidence is best stored in plastic bags. Other evidence needs to be stored in paper bags to avoid damage to the evidence.

This is just a very short description of some problems that can happen with evidence. The defense attorney will not be doing his job if he does not force you to show that you did everything correctly and the evidence was not mishandled in a matter that the evidence was contaminated, adulterated or manipulated in some way. If they can show that the evidence you worked hard to find was improperly handled it may not be made admissible during trail.

If you don't have proper training and you go grabbing stuff out of the water and screw it up a lawyer is going to make you feel like a complete ass. I have been testifying in court for 30 years and don't like defense attorneys as a rule. I like them even less when they point out a screw up I did and I have done my share. Good training and skills will keep you from being in the hot seat in court and you will look like a porfessional instead of a fool if you do it right.

Most dive teams started the way you have. That is how I started out, with a few guys with an interest in diving. As time went on we became more professional and got proper training. Now we have thirty divers and a bunch of very nice gear including side-scan sonar.

I have various PSD certs in underwater criminal investigations and that is they key to collecting and handling evidence underwater. Setting up and funding a dive team as well as the equipment you need is a whole different headache that I will let someone else address. Good luck !
 
In simple terms, the chain of custody is to establish that an item that is offered into evidence in court is really what it purports to be. For example, that Exhibit A is the gun that you found in the lake and not some other gun and that the lab report was done on that particular gun. A good defense lawyer will do his or her best to raise doubts as to whether the item is the right one, so your goal is to avoid anything that might cast doubt on it.
 
I have been training a new team for the county EMA using DRI philosophy and methods. (Blades, I made a disclaimer on the first day that I was not a DRI trainer or employer, just a student.) We are all volunteers, and none of us are LEO's. One diver is a county FF. County financial support is nearly non-existent.

Question 1: If an LEO cannot assume custody of evidence in situ on the bottom, how do we maintain the chain such that the evidence cannot be impeached? I have an U/W camera, but visibility is 1 foot on a good day.

The team has been training with the verbal assurance that we were covered by the County's Workmen's Comp. I learned today that we have not been covered and may not be covered in the future.

Question 2: Should we just bail given that the County would leave us hanging if an injury occurred? I'm not sure of the personal insurance coverage of the other divers.
I'm not sure that we have the County's liability insurance either.

Did I mention that I have to whine to get air fills, and that I used personal funds to rent a pool for the first two training sessions?

Any advice will be appreciated.

Your expectation for liability insurance and workers comp is not realistic because the public agency is not supervising or directing you.
 
I will try to explain the chain of custody thing. The chain of custody relates to how evidence is kept as to a certain extent as to how the way evidence is collected. The chain of evidence means an identifiable person must always have the physical custody of a piece of evidence. In practice, this means that a diver that collects the evidence will take charge of a piece of evidence, document its collection, and hand it over to an police investigator or evidence clerk for storage in a secure place. These transactions, and every succeeding transaction between the collection of the evidence and its appearance in court, should be completely documented chronologically in order to withstand legal challenges to the authenticity of the evidence.

Documentation should include the conditions under which the evidence is gathered, the identity of all evidence handlers, duration of evidence custody, security conditions while handling or storing the evidence, and the manner in which evidence is transferred to subsequent custodians each time such a transfer occurs (along with the signatures of persons involved at each step).

For example, suppose a diver finds a handgun. Measurements are taken as well a photographs to document the location. Commonly a metal rod could be driven into the river bottom to further document the location. The gun should be placed in a container that also holds the water in which it is found. I like using a PVC pipe with test caps on the end to keep the gun in. An evidence tag and tamper proof seals are put onto the container. Initials of the finder should be scribed onto the gun and a evidence form kept showing the name and date of each person the gun is given to, the description of the evidence, etc..

If I find a gun diving I do all the above and submit it to the crime lab for analysis. A receipt is kept of each person whose hands the gun goes through. After getting the gun back from the lab I sign for it and then place it into my evidence locker and maintain possession of it up to the time it is introduced into evidence at trail. I then file the certificate of analysis with the clerk of the court where the trail is heard. (Your state requirements may vary). This is a brief example of chain of evidence.

The problem is that you can still maintain a proper chain of evidence and still manage to screw up a criminal case big time by improper evidence handling proceedures if you are not trained to handle evidence, especially evidence found in the water. A gun could hold latent prints underwater for possibly five days. A fresh gun should be handled in a manner that will enable the prints to be collected and not smudged. A person may try to work the action of the gun to determine if it is loaded. Failure to properly document the condition of a gun is very bad mojo. Just because you can document the chain of possession of evidence does not mean that it will be admissible if it was contaminated somehow while it was collected or improperly stored.

For example, if it is a revolver the gun needs to marked which chamber is aligned with the hammer and a sketch made of the cylinder indicating which cylinder is empty, loaded, or has a fired casing in it. Document whether the cylinder rotates clockwise or counterclockwise, etc.Failure to do this could jeapordize a court case.

In the example of the gun found in water it is necessary to package it with the water in which it is found. Even exposing it in air for just a short time could cause flash rust to occur which could jeopardize microscopic analysis of the gun.

Other evidence such as clothing could be destroyed if stored wet and not air dried before packaging. Some evidence is best stored in plastic bags. Other evidence needs to be stored in paper bags to avoid damage to the evidence.

This is just a very short description of some problems that can happen with evidence. The defense attorney will not be doing his job if he does not force you to show that you did everything correctly and the evidence was not mishandled in a matter that the evidence was contaminated, adulterated or manipulated in some way. If they can show that the evidence you worked hard to find was improperly handled it may not be made admissible during trail.

If you don't have proper training and you go grabbing stuff out of the water and screw it up a lawyer is going to make you feel like a complete ass. I have been testifying in court for 30 years and don't like defense attorneys as a rule. I like them even less when they point out a screw up I did and I have done my share. Good training and skills will keep you from being in the hot seat in court and you will look like a porfessional instead of a fool if you do it right.

Most dive teams started the way you have. That is how I started out, with a few guys with an interest in diving. As time went on we became more professional and got proper training. Now we have thirty divers and a bunch of very nice gear including side-scan sonar.

I have various PSD certs in underwater criminal investigations and that is they key to collecting and handling evidence underwater. Setting up and funding a dive team as well as the equipment you need is a whole different headache that I will let someone else address. Good luck !


That's a great explanation. I used to be a prosecutor and was on the other side of COC. The other important thing, which may be an issue especially with volunteer teams, is that you will want to make sure that whoever is involved with the COC, is reachable in the future. Make sure you know how to reach and find these people in the forseeable future. If someone is new to the team or retiring, or about to move, etc, they probably shouldn't handle potential evidence. In some states, a prosecutor is required to call all of the witness in the chain. If one witness is missing, no matter how little that person's involvement, the evidence could be suppressed.

I had a case where officer#1 recovered a weapon, bagged it in a sealed bag with evidence tape with his initials, and gave it to officer#2 to drop off at ballistics. Officer#1 went to ballistics to watch the testing, and identified the sealed bag with his initials. Officer#2 left the job and the State and 6 mos later, was not available to testify. The gun was suppressed and the case dismissed, despite officer #2 never physically touching the gun. The less people touching evidence, the better.
 
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Something else to keep in mind - especially if you conduct regional responses - is that while you may have protocols in place for chain of custody locally (along with reporting and documentation of dive team operations), other jurisdictions your respond to probably don't.

This is one of those situations where you have to balance your expertise as a dive team and with the expectations of the local agency, and make sure everyone knows what roles will be covered and by whom. If the investigators assume that the dive team will be able in two years to identify who recovered that murder weapon based on their reports, it's going to embarrass everyone when it turns out you counted on them to document that, or vice-versa.

Ultimately, chain of custody methodology is just an important part of the operational briefing that needs to include both the dive team and the investigators. Count on them to know their local court requirements and if in doubt, ask!
 
My best suggestion to you it to ask your county prosecutor about how they would prefer the evidence to be handled. In some cases the prosecutor might want to oversee the COC at the scene (Dont hold your breath on this one). I know a couple prosecutor that would go out with officers on search warrants to make sure that everything went smoothly in all aspects.

The answer to number 2 is a cheesey answer and really an answer but a question. Do you think its worth quiting over? I was not covered for the longest time with the dive team I am currently with but at the end of the day that really did not play into it for me. I guess you also need to ask yourself how necessary is the dive team in your area? I know where I live the dive team is really needed because we have such a large amount of water around us.

Finally where are you getting your tank filled. We have a dive shop that sponsors our team with fills and discounts on equipment we might need. This really helps because all of our equipment is personally owned and maintained, so I understand where it gets expensive. The WA State Patrol Academy is located in our county and up till a couple years ago we had a really good deal with them on pool usage however that has recently fallen through and now leaves us looking for pools. I have yet to find a place that will let us use the pool free of charge but we are still looking around for the best price.
 
Our team's involvement with the chain of custody ends at the waterline. We require the case agent to take custody at the water's edge.
 
This is sort of off topic, but perhaps relevant. How does your local fire department fill their Scott Airpacs? If they use a compressor to fill their air tanks and it is properly filtered, maintained, and run then you have a source of scuba gas that the local authorities may be less likely to complain about paying for. There are those who will debate this, I'm sure, but the air out of the fire department's fill station is no different than at your LDS.
 

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