9.2Admission of Physical Evidence
Note that effective January 1, 2024, ADM File No. 2021-10 amended the Michigan Rules of Evidence. Generally, the amendments are stylistic; however, the application of caselaw interpreting older versions of the rules to the current version of the rules has not been addressed by any binding legal authority.
Evidence must be authenticated and identified before admission. See MRE 901. “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what its proponent claims it is.” MRE 901(a). To lay the foundation for the admission of real evidence, the proponent must at least show that:
•the object offered is the object which was involved in the incident, and
•the condition of the object is substantially unchanged. People v White (Prentis), 208 Mich App 126, 129-131 (1994). See also MRE 901(b) (a nonexhaustive list of evidence that satisfies MRE 901).
“[C]hallenges to the authenticity of evidence involve two related, but distinct, questions. The first question is whether the evidence has been authenticated—whether there is sufficient reason to believe that the evidence is what its proponent claims for purposes of admission into evidence. The second question is whether the evidence is actually authentic or genuine—whether the evidence is, in fact, what its proponent claims for purposes of evidentiary weight and reliability.” Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 154 (2017).
The first question, whether the evidence has been authenticated, “is reserved solely for the trial judge.” Mitchell, 321 Mich App at 154. The proponent of the evidence bears the burden of presenting evidence “sufficient to support a finding that the matter in question is what its proponent claims.” Id. at 155 (quotation marks and citation omitted). The proponent is not required “to sustain this burden in any particular fashion,” and “evidence supporting authentication may be direct or circumstantial and need not be free of all doubt.” Id. at 155. The proponent is required “only to make a prima facie showing that a reasonable juror might conclude that the proffered evidence is what the proponent claims it to be.” Id. at 155. “Once the proponent of the evidence has made the prima facie showing, the evidence is authenticated under MRE 901(a) and may be submitted to the jury.” Mitchell, 321 Mich App at 155. Authentication may be opposed “by arguing that a reasonable juror could not conclude that the proffered evidence is what the proponent claims it to be”; however, “this argument must be made on the basis of the proponent’s proffer; the opponent may not present evidence in denial of the genuineness or relevance of the evidence at the authentication stage.” Id. at 155.
“[T]he second question—the weight or reliability (if any) given to the evidence—is reserved solely to the fact-finder[.]” Mitchell, 321 Mich App at 156. “When a bona fide dispute regarding the genuineness of evidence is presented, that issue is for the jury, not the trial court.” Id. at 156. “Accordingly, the parties may submit evidence and argument, pro and con, to the jury regarding whether the authenticated evidence is, in fact, genuine and reliable.” Id. at 156.
More elaborate testimony is required for admission when real evidence, such as a controlled substance, is not readily identifiable or is susceptible to alteration by tampering or contamination. White (Prentis), 208 Mich App at 130. To lay the foundation for admitting such evidence, the prosecution must introduce testimony tracing the chain of custody of the item in addition to showing that the object was involved in the incident and that its condition is substantially unchanged. Id.
“A perfect chain of custody is not required for the admission of [controlled substances].” White (Prentis), 208 Mich App at 132-133. Controlled substances and other evidence that is not readily identifiable or susceptible to alteration by tampering or contamination “may be admitted where the absence of a mistaken exchange, contamination, or tampering has been established to a reasonable degree of probability or certainty.” Id. at 133.
A break or gap in the chain of custody may be relevant to the trial court’s determination of whether the prosecution has met the foundational requirements for introduction of real evidence. White (Prentis), 208 Mich App at 133. However, a break or gap in the chain of custody does not require automatic exclusion of the evidence. Id. “The threshold question remains whether an adequate foundation for admission of the evidence has been laid under all the facts and circumstances of each individual case. Once a proper foundation has been established, any deficiencies in the chain of custody go to the weight afforded to the evidence, rather than its admissibility.” Id. See also People v Mitchell, 493 Mich 883, 884 (2012) (noting that “breaks in the chain of custody go to the weight of the evidence not to its admissibility”).
There was a sufficient foundation for admission of crack cocaine where the chain of custody was incomplete due to the lack of any testimony regarding the transfer of the cocaine from the evidence room safe because the chain of custody was “substantially complete.” White (Prentis), 208 Mich App at 133. Further, “the testimony at trial established that reasonable precautions were taken to preserve the original condition of the evidence and prevent its misidentification.” Id. Specifically, the evidence was sealed in an evidence envelope, locked in a safe at the police station with a receipt and laboratory sheet, the sealed envelope was then transported to a locked evidence locker at the crime laboratory, and removed by a crime lab scientist who wrote the complaint number and signed the envelope. Id. at 133-134.