7623 - Laserfiche WebLink

Home Browse Search

The regulations relating to the production of documents and the testimony of government employees by subpoena are presently covered by 43 CFR §§ 2.80 and 2.82. The nine exemptions from disclosure provided by the FOIA are found in 43 CFR § 2.13. The general test of what documents may be inspected and copied under the disclosure provisions of the FOIA is: What would be dis- coverable in a civil action under the federal rules? Procedures regarding FOIA request are covered by 43 CFR §§ 2.14-2.19. Some very "fine line" questions can arise where provisions under both the FOIA and the Privacy Act are involved. (See 43 CFR §§ 2.45 et sec.) LABORATORY AND FIELD PROCEDURES SUBJECT TO ATTACK CHAIN OF CUSTODY The scientist or technician who fills water bottles in a stream just below a potential defendant's outfall must take precautions to insure that at trial the sample bottle he refers to can be shown to correspond to a sample taken at a certain time and a certain place. The often elaborately stated rules of chain of custody are nothing more than a means of guaranteeing the integrity of the identification of field samples such as stream transects and photographs. McCormick on Evidence (Cleary 1972) states simply that the expert witness must be able to trace the chain of custody "with sufficient complete- ness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with." This requirement must be met before the evidence can be received at all; it does not simply affect the weight to be given to the evidence. One of the most useful things you can do in this regard is to establish a procedure for a chain of custody (e.g., the tag and receipt method) within your, agency. It will often be necessary to prove that, not only is the sample the expert tested or collected the one that came from a particular stream, but also that it is the one which has been produced in court and about which the expert is testifying. Under many circumstances you may have to produce every person who handled that sample from the day it came from the stream until it appeared in court. As you can see, chains of custody should be short, well established, and the samples retained. Cross-examiners delight in breaking down a chain of custody, thereby impairing the integrity of the sample and the testimony of the expert about it. For example, color slides or photographs are sometimes taken of streams, documenting time, flow, location, and any visible water pollution in the vicinity. Written documentation on the back of the photo should include the signature of the photographer, time, date, and site location. Photographs of this nature, which may be used as evidence, should be handled according to the established chain of custody procedures. Integrity of identification is also of importance relative to the use of field notebooks. In addition to being a valuable reference for refreshing the 11