State v. Trapp – The Slow Erosion of the Confrontation Clause Continues

The S.C. Court of Appeals upheld a Newberry County conviction for trafficking crack cocaine last week and held that both search warrants and chain of custody affidavits are admissible even though the authors of the documents are not available to testify. The result ignores the U.S. Supreme Court’s holdings in the Melendez-Diaz and Briscoe opinions but may be consistent with prior holdings of the S.C. Supreme Court.

Chain of Custody

The chain of custody as testified to at trial was:

  1. Investigator Bouknight collected the evidence at the scene, filled out the search warrant return and chain of custody forms specifying what items were seized, and delivered the evidence to SLED 13 days later. Bouknight was not available to testify at trial.
  2. Selena Kinard received the evidence from Bouknight at SLED. She apparently also did not testify at trial.
  3. Patricia Crooks testified that she transferred the evidence from storage to Lynn Black for testing.
  4. Lynn Black was the chemist who tested the drugs and she testified at trial.

Two of four critical witnesses in the chain of custody were not present at trial. The Court allowed another officer to testify as to what Bouknight did and admit the forms that Bouknight filled out, then allowed Black to testify that Kinard received the evidence from Bouknight and allowed Black to testify as to what Kinard wrote on the chain of custody forms. There was a discrepancy in what Bouknight recorded as seizing from the crime scene and what Black testified that Kinard received at SLED and yet the defense had no opportunity to cross-examine Bouknight or Kinard. The Court of Appeals held that it is acceptable for other witnesses to testify as to what Bouknight and Kinard wrote on the forms and as to the departments’ normal practices.

Confrontation Clause and Hearsay

The Court of Appeals affirmed the admission at trial of the search warrant, evidence log-in form, SLED analysis request, and chain of custody forms in the absence of the authors of the documents. The Court engages in a Crawford analysis but never mentions Melendez-Diaz or Briscoe. The Court acknowledges that the Confrontation Clause prohibits the admission of testimonial hearsay which is “when the out-of-court statement’s primary purpose is to serve as evidence,” but finds that these documents are nontestimonial:

Reviewing these documents and the relevant case law, we find these documents are nontestimonial and, thus, do not trigger a Crawford Sixth Amendment analysis. Rather, we find the “primary purpose” for their creation and maintenance was to document seized evidence and attempt to accurately account for the items as they were transferred from the incident location to the sheriff’s department and ultimately to SLED for testing.

And what is the purpose of accurately accounting for the items “as they were transferred from the incident location to the sheriff’s department and ultimately to SLED for testing,” if not so that it can later be proven in court? To find that the purpose of chain of custody documents or a search warrant are anything but testimonial is intellectually dishonest. The documents are carefully created for the purpose of proving the chain of custody in a trial, and, if they were not, the evidence would not be admitted at trial. This is what it looks like when the courts reach a decision and then write an opinion to justify it. Melendez-Diaz and Briscoe, ignored by the Court of Appeals in this case, held that a chemist’s affidavit is not admissible without the testimony of the document’s author and that the state cannot rely on a default provision that would make it admissible unless the defense objects pre-trial.

I don’t expect that the S.C. Supreme Court will reverse this decision. Melendez-Diaz and Briscoe deal with a chemist’s affidavit and not chain of custody documents. The Court of Appeals admits the documents under the business records exception to the hearsay rule, relying on State v. Brockmeyer, a 2013 S.C. Supreme Court case which stated, in dicta, that portions of chain of custody logs were not testimonial and not subject to the Confrontation Clause. In State v. Anderson, a 2009 S.C. Supreme Court case, they similarly held that fingerprint cards were admissible under the public records exception without the testimony of the person who created the cards.

This case has pushed this line of reasoning further than any case that I have seen before. Under this analysis, prosecutors can now admit any search warrant or chain of custody documents without live witnesses and with the approval of South Carolina’s appellate courts.


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