Is the Chain of Custody the Only Mechanism Available to Authenticate and Identify Physical Evidence in Criminal Proceedings in Colombia?

Autor: J. Ian Raisbeck

Recent decision SP-2020 issued by the Colombian Supreme Court of Justice - Criminal Cassation Chamber (SCJ - Criminal CC), dated April 29, 2020¹, provides a clear explanation over the mechanisms provided for by the Criminal Procedure Code to authenticate and identify physical evidence, which go beyond the use of the chain of custody. As such, even though the chain of custody is an ideal mechanism to identify and authenticate physical evidence, it is not the only available mechanism.

Without going into the details of the case , which are unimportant to the discussion at hand, I will simply mention that the case revolves around cocaine found in a vehicle during a military checkpoint inspection, where the cocaine was seized by the military without a chain of custody, and three days later the cocaine was subject of another seizure during a military operative which came about from a complaint filed by the driver of the vehicle where the cocaine was originally found.

Moving to the discussion at hand, Presiding Magistrate of the mentioned decision, Chaverra Castro, indicates that authenticity of physical evidence must be established, noting that, despite the well-known importance of the chain of custody, it is not the only mechanism which may be used to authenticate evidence.  Magistrate Chaverra Castro cites multiple prior decisions by the SCJ - Criminal CC², which summarize the position of the Court with respect to this matter as follows:

1. Authentication of physical evidence is nothing more than to prove that something is what the party proposes according to its theory of the case.
2. The Criminal Procedure Code establishes the principle evidentiary freedom, whereby the party intending to prove something is able to use any means established by the Code or other technical or scientific means to do so, so long as human rights are not violated.
3. Notwithstanding the foregoing, the chain of custody is by nature a protocol that allows physical evidence to be secured to avoid tampering of the same, guaranteeing the sameness principle, which indicates that the evidence provided to the Court is the same and possesses the same characteristics, components and elements to that collected in the field.
4. As such, when case law has indicated that the chain of custody problems concern the evaluation of the evidence but not its legality, it does not mean:

i) Exemption from the constitutional and legal obligation of the Prosecutor’s Office to use the chain of custody;

ii) Denial of the significance of the collection, packaging and labelling protocols of the chain of custody in authenticating physical evidence which can easily be altered or supplanted;

iii) Ignoring the importance of proper authentication techniques for physical evidence in determining the facts of a criminal case.La excepción de la obligación constitucional y legal de la Fiscalía de utilizar los protocolos de cadena de custodia;

 Based on the foregoing, Presiding Magistrate Chaverra Castro concludes as follows:

“(...) if for any reason the constitutional and legal obligation to abide by chain of custody protocols for physical evidence was not complied with, article 277 of the Criminal Procedure Code, based on, as outlined, the principle evidentiary freedom, allows authenticity to be accredited by any means.

It is not necessary to emphasize, however, that the chain of custody protocol is ideal when it comes to physical evidence that can easily be confused or altered, such as narcotic substances, compared to those that can be identified with the naked eye by their external characteristics, or that may be marked and therefore become identifiable, events in which the authentication procedure can be supplemented by witnesses who have ‘personal and direct’ knowledge of the facts, as established by the Article 402 of Law 906 of 2004.

In any case, the authentication of the physical evidence it to be accredited by the party that submits it, specifying and providing, in the absence of the chain of custody, each of the means of evidence that determine its very nature, that establish, as in this case, that the substance seized is the same presented as evidence before the Judge.”

To conclude, as Magistrate Chaverra Castro did in his recent Decision SP-2020, Filing 54784, dated April 29, 2020, the chain of custody protocols are to be used when collecting physical evidence to be submitted during Trial.  However, the fact that the chain of custody protocols are not followed when collecting physical evidence in a particular case, does not mean that the evidence is per se illegal and inadmissible in Court, it simply means that the party using this evidence in Court to argue in favor of its theory, will have to use other evidentiary means available, such as testimonies, documents, etc., in order to convince the Judge of the authenticity of the evidence at hand.

¹ Republic of Colombia.  Supreme Court of Justice - Criminal Cassation Chamber.  Presiding Magistrate Gerson Chaverra Castro. Decision SP-2020, Filing 54784, dated April 29, 2020.

² Presiding Magistrate Chaverra Castro cites the following prior decisions issued by the Supreme Court of Justice - Criminal Cassation Chamber:  SP12229, Filing 43916, dated August 31, 2016; SP160, Filing 44741, dated January 18, 2017; SP , Filing 30598, dated February 19, 2009.