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BENCH MEMORANDUM
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MATTER—Exclusion of evidence on the basis of indication of probable tampering or

contamination
AUTHOR—Hon. William H. Burgess, III
DATE—October 1, 2018
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This memorandum sets forth the law regarding the exclusion of physical evidence
on the basis of probable tampering or contamination.
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Contents

1. Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. The Proponent’s Initial Burden of Establishing Relevancy and Authenticity. . . . . . . . . . . . . . . 2
3. Chain of Custody. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Reasonable Probability of Tampering.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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1. Generally.

Tampering1 or other contamination2 occurring in the handling or testing of evidence,

which destroys the reliability or integrity of the process, or the reliability or integrity of the
evidence itself, may render the evidence inadmissible.

1
To “tamper” with something is to meddle so as to alter a thing, especially to make illegal, corrupting or
perverting changes. Black’s L. Dist. 1456 (1990 ed.).
2
“Contamination” is the unwanted transfer of material from another source to a piece of physical evidence.
An example would be the inadvertent touching of a weapon, thereby adding fingerprints to it. Cross-contamination
is the unwanted transfer of material between two or more sources of physical evidence. An example would be
improperly collecting biological evidence such as blood in a way that leads to one sample mixing with another
sample and contaminating both samples. Contaminated evidence is admissible if the proponent of the evidence can
prove its authenticity, that is, that the evidence is what the proponent purports it to be, and the issue of contamination
goes to the weight of the evidence and not its admissibility. See State v. Griffin, 818 Utah Adv. Rep. 20, 2016 UT
33, 384 P. 3d 186 (Utah 2016).
 Florida does not have a per se exclusion rule for contaminated evidence.3 There also is
no hard and fast rule that the proponent of an article of evidence must exclude all possibility that
the article may have been tampered with. In each case the trial judge before he or she admits an
article in evidence must be satisfied that in reasonable probability the article has not been
changed in important respects. In reaching his or her conclusion the judge must be guided by the
nature of the article, the circumstances surrounding the preservation and custody of it, and the
likelihood of intermeddlers tampering with it.”4

If upon the consideration of such factors the trial judge is satisfied that in reasonable
probability the article has not been changed in important respects, he or she may permit its
introduction in evidence. The jury, of course, is free to disregard such evidence upon its finding
that the article was not properly identified, or that there has been a change in its nature.
In performing this analysis, there are two questions that should not be confused:

1. The legal question of the admissibility of the evidence. The preliminary issue is for
the court to resolve. It must ascertain whether there is a reasonable probability that the evidence
has not been altered in any material respect since the time of the crime.5

2. The factual question of whether the jury should disregard the evidence. The secondary
issue is for the jury to resolve. It can assign whatever weight to the evidence it feels appropriate,
and can disregard it completely.

Where no evidence is offered that the thing in government custody has been altered,
replaced, or tampered with, the trial judge is entitled to rely on a presumption of official
regularity. The trial judge’s determination that the showing as to identification and nature of
contents is sufficient to warrant reception of an article in evidence may not be overturned except
for clear abuse of discretion.6

2. The Proponent’s Initial Burden of Establishing Relevancy and Authenticity.

Things or documents which are offered in evidence must be probative of a material fact
or issue in order to be admissible. Section 90.901, Fla. Stat., requires the authentication or

3
See U.S. v. Morrow, 374 F. Supp. 42 (D.D.C. 2005) (rejecting policy arguments for a per se exclusionary
rule for contaminated DNA evidence and holding that the current practice of allowing defendants to undermine the
weight of questionable evidence is sufficient to compel overall compliance with rules and regulations designed to
prevent contamination).
4
U.S. v. S.B. Penick & Co., 136 F. 2d 413, 415 (2nd Cir. 1943).
5
U.S. v. Luna, 585 F. 2d 1 (1st Cir. 1978).
6
Gallego v. U.S., 276 F. 2d 914 (Fla. 9th Cir. 1960).

Judge Burgess Bench Memorandum Re: Exclusion of evidence

on the basis of indication of probable tampering or contamination
2 October 1, 2018
identification of a document or exhibit prior to its admission into evidence.7 Authentication is a
special aspect of relevancy. Evidence which is not authenticated is not admissible.8

The proponent of the evidence has the initial burden of establishing relevancy and
authenticity. In establishing its authenticity, the proponent must prove the item is what the
proponent claims it is. As part of establishing an item’s authenticity, the proponent must also
show that the item is in substantially the same condition as it was at the time of the offense. This
foundational requirement is usually met by testimony by a witness who has personal knowledge
of facts which are sufficient to authenticate the evidence9 or, when the evidence is not readily
identifiable or when it is susceptible to alteration or tampering, by showing the continuous proper
custody (“chain of custody”) of the exhibit was such as to render it improbable that anyone
altered or tampered with the original item or substituted a different item.10 The sufficiency of
such a showing depends in some part on the nature of the exhibit. In the case of DNA, the
evidence does not have to establish identity to a reasonable level of scientific certainty to be
admissible.11 The Florida Supreme Court has allowed the admission of DNA tests which do not
conclusively identify the defendant, and has held that any concerns about the probative value of
the DNA evidence goes to the weight of the evidence and not its admissibility.12

3. Chain of Custody.

The concept of a chain of custody of physical evidence is to ensure that evidence is not
lost, adulterated, or changed pending trial on the merits of a case.13 The relevant factors to be
considered by a court in determining whether the State has adequately traced an item’s
whereabouts through a reliable chain of custody include (1) the nature of the article, (2) the
circumstances surrounding its preservation in custody, and (3) the likelihood of contamination or
intermeddlers having altered or tampered with the item. To establish a chain of custody adequate

7
“Authentication or identification of evidence is required as a condition precedent to its admissibility. The
requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.” § 90.901, Fla. Stat.
8
C. Ehrhardt, Florida Evidence § 901.1 (2018 Edition).
9
C. Ehrhardt, Florida Evidence § 901.2 (2018 Edition).
10
C. Ehrhardt, Florida Evidence § 901.3 (2018 Edition).
11
Mickens v. State, 121 So. 3d 563 (Fla. 4th DCA 2013).
12
Walker v. State, 707 So. 2d 300, 313 (Fla. 1997), citing Mann v. State, 420 So. 2d 578 (Fla. 1982) and
Williams v. State, 143 Fla. 826, 197 So. 562 (Fla. 1940).
13
See e.g., U.S. v. Ellis, 15 F. Supp. 2d 1025, 1031 (D. Colo. 1998) (military police officers’ handling of
substances alleged by prosecution to be methamphetamine made establishment of proper chain of custody
impossible).

Judge Burgess Bench Memorandum Re: Exclusion of evidence

on the basis of indication of probable tampering or contamination
3 October 1, 2018
to justify admission of physical evidence, the proponent must show only circumstances making it
reasonably probable that tampering, substitution, or alteration of evidence did not occur. The test
is whether there is a reasonable probability that no substitution, alteration or tampering has
occurred.14 Absolute certainty is not required. The burden is heavier when the evidence offered
is an item that is very susceptible to alteration, substitution, or tampering, such as drugs. When
the trial court has determined that the proponent has established a sufficient foundation for the
admission of evidence, any speculation to the contrary affects the weight and not the
admissibility of the evidence.15

Where evidence is unique, readily identifiable, and resistant to change, the foundation for
consideration of evidence must support what its proponent claims the evidence to be.16 Chain of
custody is thus not necessary for objects that are unique, readily identifiable, or relatively
resistant to change.17 Conversely, a more stringent standard for chain of custody must exist if an
item is not unique or readily identifiable, and not resistant to change,18 and especially when the
evidence is of a type susceptible to tampering, alteration, or substitution, such as drugs.19

Ordinarily, when an object is taken from the defendant for the purpose of testing and
passes through the hands of several persons a foundation for its admission into evidence must be
laid by the testimony of each person who had possession or custody of the article. But this is not
an inexorable rule of law and the ultimate question is always whether the proof shows with
reasonable certainty that the article offered is the identical article taken from the accused. The
question is addressed in the first instance to the sound discretion of the trial judge.20

14
Loper v. State, 1994 Del. LEXIS 15 (Del. 1992).
15
State v. Biddle, 652 N.W. 2d 191, 196-197 (Iowa 2002).
16
U.S. v. Cardenas, 864 F.2d 1528, 1531 (10th Cir.1989).
17
See, e.g., U.S. v. Le Pera, 443 F.2d 810 (9th Cir. 1971) (counterfeit notes printed from a single plate are
unique and identifiable without proof of chain of custody); Devito v. T.J. Brooks & Co., Inc., 1986 WL 14138
(N.D.Ill. 1986) (“A chain of custody would be particularly inappropriate for readily identifiable, unique goods such
as antique watches which bear manufacturer’s names and serial numbers.”).
18
U.S. v. Ellis, 15 F. Supp. 2d 1025, 1031 (D. Colo. 1998) (military police officers’ handling of substances
alleged by prosecution to be methamphetamine made establishment of proper chain of custody impossible).
19
See State v. Piper, 663 N.W. 2d 894, 907 (Iowa 2003); State v. Biddle, 652 N.W. 2d 191, 196-197 (Iowa
2002).
20
See State v. Anderson, 242 Or. 368, 409 P.2d 681 (Ore. 1966).

Judge Burgess Bench Memorandum Re: Exclusion of evidence

on the basis of indication of probable tampering or contamination
4 October 1, 2018
4. Reasonable Probability of Tampering.

Thus, in seeking to exclude otherwise relevant evidence due to a gap in the chain of
custody, the opponent bears the initial burden of showing there was a probability of tampering
with the evidence.21 Once this burden has been met, the burden shifts to the proponent of the
evidence to submit evidence that tampering did not occur. A mere possibility or likelihood of
tampering is insufficient, however, to shift the burden.22

Relevant physical evidence is admissible unless there is an indication of probable

tampering.23 Ordinarily, this implicates the chain of custody from seizure of the item to the point
of introduction of the item in evidence, and entails an examination of gaps in the chain of
custody. The test to determine whether a break in the chain of custody operates to bar the
admission of evidence is whether the party seeking to exclude the evidence establishes a
reasonable probability of tampering.24

“Probable” in this context means having more evidence for than against; supported by
evidence which inclines the mind to believe, but leaves room for doubt; likely.25 While
tampering with evidence is ordinarily thought of as deliberate and intentional, tampering can also
be inadvertent,26 as where an item of evidence is lost or destroyed due to administrative
oversight.27 The measure of probable tampering is the extent to which (1) the item of evidence is
not in substantially the same condition as when the offense was committed or the item collected,
and (2) the lack of reasonable explanation for the change raise reasonable doubt as to its

21
One state supreme court has held that this means that the opposing party must show opportunity and
motivation to tamper with, alter, or substitute for, the original item. See State v. Piper, 663 N.W. 2d 884, 909 (Iowa
2003).
22
Murray v. State, 838 So. 2d 1073, 1082 (Fla. 2002); Davis v. State, 788 So. 2d 308 (Fla. 5th DCA 2001);
Jordan v. State, 707 So. 2d 816 (Fla. 5th DCA 1998); State v. Taplis, 684 So. 2d 214 (Fla. 5th DCA 1966), rev.
dismissed, 703 So. 2d 453 (Fla. 1977).
23
Murray v. State, 3 So. 3d 1108 (Fla. 2009), cert. denied, 558 U.S. 948, 130 S. Ct. 396, 175 L. Ed. 2d 273
(2009); Peek v. State, 395 So. 2d 492, 495 (Fla. 1980); see also Dodd v. State, 537 So. 2d 626 (Fla. 3d DCA 1988).
24
C. Ehrhardt, Florida Evidence § 901.3 (2018 Edition).
25
Black’s L. Dict. 1201 (1990 ed.).
26
See Loper v. State, 1994 Del. LEXIS 15 (Del. 1992) (“inadvertent tampering [was] a serious possibility”
where cocaine sat in easily accessible cabinet at police station).
27
See State v. Franklin, 478 A. 2d 1107 (Me. 1994) (loss of seven bullets that had beeen retained as State’s
evidence in the custody of the clerk of courts); People v. Harmes, 38 Colo. App. 378. 560 P. 2d 470 (Colo. Ct. App.
1976) (negligent destruction of videotape by police); Trimble v. State, 75 N.M. 183, 402 P. 2d 162 (N.M. 1965)
(negligent misplacing or handling of evidence necessary to the defense was a denial of due process).

Judge Burgess Bench Memorandum Re: Exclusion of evidence

on the basis of indication of probable tampering or contamination
5 October 1, 2018
authenticity. A mere break in the chain of custody is not in and of itself a basis for exclusion of
physical evidence. Rather, the court should consider the probability that the evidence has been
tampered with during the interim for which it is unaccounted.28 A probability of tampering is not
shown by minor discrepancies in record-keeping29 or packaging,30 but may be shown by gross
discrepancies in the physical appearance of the evidence between initial collection and
introduction at trial in combination with an unexplained gap in the chain of custody.31 A
probability of tampering is also not shown by laboratory past error rates, which may be
inadmissible propensity evidence; if admitted such, would go to the weight of the laboratory’s
results and not the exclusion of those results. In other words, challenging the proficiency of the
tester rather than the reliability of the test goes to the weight of the evidence, not its
admissibility.32

5. Conclusion.

A showing of probable tampering can, in appropriate circumstances, be overcome by

reasonable explanation.33 If and when competent evidence of probable tampering is produced,
the proponent of the evidence is required to establish a proper chain of custody or submit other
evidence that tampering did not occur.34 It is error for the trial court to admit the challenged
evidence in such situations without first receiving other evidence or testimony that explains the
changes in the condition of the challenged evidence between time of collection or seizure and the

28
Bush v. State, 543 So. 2d 283, 284 (Fla. 2d DCA 1989).
29
Behrens v. State, 830 So. 2d 190 (Fla. 4th DCA 2002) (discrepancies in the name and whether there were
two or four swabs taken from defendant did not show a probability of tampering).
30
Armstrong v. State, 73 So. 3d 155 (Fla. 2011) (missing bullet fragment); McElveen v. State, 440 So. 2d
636 (Fla. 1st DCA 1983) (discrepancy between testimony of officer who seized the alleged cannabis and crime lab
chemist who examined the substance as to the manner of packaging of the alleged cannabis did not indicate a
probability of tampering with the evidence).
31
Dodd v. State, 537 So. 2d 626 (Fla. 3d DCA 1989) (gross discrepancies in the weight of drugs between
seizure and introduction in evidence at trial and failure of the prosecution to explain a gap in the chain of custody
were sufficient to show a probability of tampering).
32
U.S. v. McClusky, 954 F. Supp. 2d 1224, 1272 (D.C.N.M. 2013) (laboratory error rate goes to the weight
of the evidence and not its admissibility).
33
Davis v. State, 788 So. 2d 308 (Fla. 5th DCA 2001) (tampering or lack of chain of custody argument
based on fact that cocaine admitted at trial was in one bag, and no longer in the eleven individual bags as when it was
seized, dispelled by testimony of law enforcement officer who testified that the cocaine was placed in one bag so that
the individual bags could be tested for fingerprints).
34
Taplis v. State, 703 So. 2d 453 (Fla. 1997).

Judge Burgess Bench Memorandum Re: Exclusion of evidence

on the basis of indication of probable tampering or contamination
6 October 1, 2018
time of trial.35 A trial court also may not rely on argument by counsel to make factual such
determinations.36

Evidence should not be ruled inadmissible because there is a mere possibility that
tampering might have occurred.37 A defendant’s objection on chain of custody grounds to the
admission of relevant evidence is without merit where the defendant makes no showing of
tampering,38 and the proponent of the evidence is not required to establish a complete chain of
custody where the record does not demonstrate that there was a probability of tampering with the
evidence.39 It is a departure from the essential requirements of law to grant a motion to exclude
evidence on the basis of probable tampering without any evidence to support the assertion.40

Table of Authorities

Colorado

People v. Harmes, 38 Colo. App. 378. 560 P. 2d 470 (Colo. Ct. App. 1976)

Delaware

Loper v. State, 1994 Del. LEXIS 15 (Del. 1992)

Florida

Court Opinions

Armbruster v. State, 453 So. 2d 833 (Fla. 4th DCA 1984)

Armstrong v. State, 73 So. 3d 155 (Fla. 2011)
Behrens v. State, 830 So. 2d 190 (Fla. 4th DCA 2002)
Bush v. State, 543 So. 2d 283 (Fla. 2d DCA 1989)
Davis v. State, 788 So. 2d 308 (Fla. 5th DCA 2001)
Dodd v. State, 537 So. 2d 626 (Fla. 3d DCA 1988)
Garcia v. State, 873 So. 2d 426 (Fla. 3d DCA 2004)
Jordan v. State, 707 So. 2d 816 (Fla. 5th DCA 1998)

35
Dodd v. State, 537 So. 2d 626 (Fla. 3d DCA 1989).
36
State v. Jones, 30 So. 3d 619 (Fla. 2d DCA 2010).
37
State v. Taplis, 684 So. 2d 214, 215 (Fla 5 th DCA 1996), rev. dismissed, 703 So. 2d 453 (Fla. 1997).
38
Armbruster v. State, 453 So. 2d 833 (Fla. 4th DCA 1984).
39
Garcia v. State, 873 So. 2d 426 (Fla. 3d DCA 2004).
40
State v. Jones, 30 So. 3d 619 (Fla. 2d DCA 2010).

Judge Burgess Bench Memorandum Re: Exclusion of evidence

on the basis of indication of probable tampering or contamination
7 October 1, 2018
Mann v. State, 420 So. 2d 578 (Fla. 1982)
McElveen v. State, 440 So. 2d 636 (Fla. 1st DCA 1983)
Mickens v. State, 121 So. 3d 563 (Fla. 4th DCA 2013)
Murray v. State, 838 So. 2d 1073 (Fla. 2002), cert. denied, 558 U.S. 948, 130 S. Ct. 396, 175 L. Ed. 2d 273 (2009)
Peek v. State, 395 So. 2d 492, 495 (Fla. 1980)
State v. Jones, 30 So. 3d 619 (Fla. 2d DCA 2010)
State v. Taplis, 684 So. 2d 214 (Fla. 5th DCA 1966), rev. dismissed, 703 So. 2d 453 (Fla. 1977)
Walker v. State, 707 So. 2d 300 (Fla. 1997)
Williams v. State, 143 Fla. 826, 197 So. 562 (Fla. 1940)

Statutes

§ 90.901, Fla. Stat.

Iowa

State v. Biddle, 652 N.W. 2d 191 (Iowa 2002)

State v. Piper, 663 N.W. 2d 894 (Iowa 2003)

Maine

State v. Franklin, 478 A. 2d 1107 (Me. 1994)

New Mexico

Trimble v. State, 75 N.M. 183, 402 P. 2d 162 (N.M. 1965)

Oregon

State v. Anderson, 242 Or. 368, 409 P. 2d 681 (Ore. 1966)

Utah

State v. Griffin, 818 Utah Adv. Rep. 20, 2016 UT 33, 384 P. 3d 186 (Utah 2016)

Federal Circuit Court

Gallego v. U.S., 276 F. 2d 914 (Fla. 9th Cir. 1960)

U.S. v. Cardenas, 864 F. 2d 1528 (10th Cir. 1989)
U.S. v. Le Pera, 443 F. 2d 810 (9th Cir. 1971)
U.S. v. Luna, 585 F. 2d 1 (1st Cir. 1978)
U.S. v. S.B. Penick & Co., 136 F. 2d 413 (2nd Cir. 1943)

Federal District Court

Devito v. T.J. Brooks & Co., Inc., 1986 WL 14138 (N.D. Ill. 1986).
U.S. v. Ellis, 15 F. Supp. 2d 1025 (D. Colo. 1998)
U.S. v. McClusky, 954 F. Supp. 2d 1224, 1272 (D.C.N.M. 2013)
U.S. v. Morrow, 374 F. Supp. 42 (D.D.C. 2005)

Judge Burgess Bench Memorandum Re: Exclusion of evidence

on the basis of indication of probable tampering or contamination
8 October 1, 2018
Treatises

C. Ehrhardt, Florida Evidence § 901.1 (2018 Edition)

C. Ehrhardt, Florida Evidence § 901.2 (2018 Edition)
C. Ehrhardt, Florida Evidence § 901.3 (2018 Edition)

Dictionaries

Black’s L. Dist. (1990 ed.)

Judge Burgess Bench Memorandum Re: Exclusion of evidence

on the basis of indication of probable tampering or contamination
9 October 1, 2018