FORENSICS & BALLISTICS JFK
There are many posts and commentaries on these issues spread between several entries on HR1blog, which I hope to consolidate herein on a single entry.
Federal Rules of Evidence # 406
Habit; Routine Practice
“Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”
. . . . .
This rule officiates the concept of Modus Operandi as relevant evidence in criminal law.
Subsequently this rule transfers as relevant in discussion on this forum, and has to do with how the term “Fact” is used and a specific form of “information” derived from a reasonable organization of datum.
The epistemologically mature individual grasps that data points are but “beads” to be snapped together into chains in order to bring out the ‘meaning’ of datum.
In tandem with Routine Habit is the construction of the “profile” of a group or individual. That would be a catalog of the habits and routines of individuals or groups.
This can turn from an exacting science to an art form by talented individuals with long experience in such investigation and research.
Chain of Custody
Paul C. Giannelli
Case Western University School of Law, firstname.lastname@example.org (1996)
Authentication or identification
of real evidence 1 refers to the requirement that an item of evidence be proved to be genuine, that is, that it is what its proponent claims it to be. McCormick expressed the requirement this way: “[W]hen real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged.”2 Federal Evidence Rule 901(a) codifies this requirement.
An object that is inscribed with the initials or markings of a police officer or other person may be readily identifiable. In such cases, the person converts a nonunique object into a readily identifiable one by placing distinctive markings on it. This practice, recommended in crime scene and evidence collection manuals, is well accepted in the cases. Firearms, bullets, currency, laboratory slides, and sundry other objects have been admitted into evidence, at least in part, on this basis.
A witness’s uncertainty in identifying an exhibit, however, affects the weight, not the admissibility, of the evidence.
(Example given here is not an applicable analog to the Parkland Bullet case)
Need for Chain of Custody
In some situations the proponent must establish a chain of custody. Such proof may be necessary either because the item of evidence is not readily identifiable, or because more than simple identification is necessary to establish the item’s relevance.
If the relevance of an exhibit depends on its subsequent laboratory analysis, identification by police markings made at the scene does not provide a sufficient foundation. The markings establish that the exhibit in court was the item seized by the police, but a chain of custody may be necessary to establish that the item seized was the item analyzed at the crime laboratory. For example, in Robinson v. Commonwealth, the court reversed a rape conviction due to a break in the chain of custody: “The mere fact that the blouse and the panties were identified (by the victim at trial] did not prove the chain of possession necessary to validate the F.B.I. analysis of them. ”
Links in Chain
The “links” in the chain of custody are those persons who have had physical custody of the object. Persons who have had access to, but not possession of, the evidence generally need not be accounted for. Such persons are not custodians. As noted by one court: “There is no rule requiring the prosecution to produce as witnesses all persons who were in a position to come into contact with the article sought to be introduced in evidence.
Failure to account for the evidence during possession by a custodian may constitute a critical break in the chain of custody. Some courts have indicated that all the links in the chain of custody must testify at triaJ.58 The prevalent view, however, is that “the fact of a ‘missing link does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be.
Thus, while a custodian in the chain of possession need not testify under all circumstances, the evidence should be accounted for during the time it was under that custodian’scontrol. Several recurrent examples of “missing link” cases are discussed in this article.
Burden and Standard of Proof
The burden of proving the chain of custody rests with the party offering the evidence. Prior to the adoption of the Federal Rules of Evidence, the courts described the standard of proof in various ways. The most common expression of the standard was that the offering party had to establish the identity and condition of the exhibit by a “reasonable probability.” Phrases such as “reasonable certainty” and “reasonable assurance” seem only variants of this standard. The reasonable probability standard appears to require no more than the “preponderance of evidence” or “more probable than not” standard, and some courts have explicitly expressed the standard in those terms. This standard is the typical standard in evidence law. Under this view, chain of custody “requirements go to the competency of the evidence, not merely to its credibility.” Under this view, the trial court determines whether this standard has been satisfied.
The proponent may also introduce evidence of habit or routine practice to establish the chain of custody. Federal Rule 406 provides that evidence of the routine practice of an organization is relevant to prove that the conduct of the organization “on a particular occasion was in conformity with the … routine practice.” Accordingly, evidence of the standard operating procedures of police departments and laboratories in safeguarding real evidence may be used to establish the chain of custody.
Rule 406. Habit; Routine Practice
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1932; Apr. 26, 2011, eff. Dec. 1, 2011.)
Crime Scene Protocol 1963
It was standard practice and mandated by FBI protocol in 1963 (up until the 1980s) to mark a shell or hull with a unique mark for chains of custody.
Federal Bureau of Investigation, Handbook of Forensic Science 100 (rev. ed. 1984); C. O’Hara
Standard F22 Neck
The muscles, soft tissues, airways, and vascular structures of the anterior neck must be examined to identify signs of disease, injury, and therapy. A layer-by-layer dissection is necessary for proper evaluation of trauma to the anterior neck. Removal and ex situ dissection of the upper airway, pharynx, and upper esophagus is a necessary component of this evaluation. A dissection of the posterior neck is necessary when occult neck injury is suspected. The forensic pathologist shall:
F22.1 examine in situ muscles and soft tissues of the anterior neck.
F22.2 ensure proper removal of neck organs and airways.
F22.3 examine neck organs and airways.
F22.4 dissect the posterior neck in cases of suspected occult neck injury.
F22.5 perform anterior neck dissection in neck trauma cases.
Standard F23 Penetrating Injuries, Including Gunshot and Sharp Force Injuries
Documentation of penetrating injuries as listed below should include detail sufficient to provide meaningful information to users of the forensic autopsy report, and to permit another forensic pathologist to draw independent conclusions based on the documentation. The recovery and documentation of foreign bodies is important for evidentiary purposes. Internal wound pathway(s) shall be described according to organs and tissues and size of defects of these organs and tissues. The forensic pathologist shall:
F23.1 correlate internal injury to external injury
F23.2 describe and document the track of wound
F23.3 describe and document the direction of wound
F23.4 recover foreign bodies of evidentiary value
F23.5 describe and document recovered foreign body
Standard G30 Evidence Processing
Custodial maintenance and chain of custody are legally required elements for documenting the handling of
evidence. The forensic pathologist or representative shall:
G30.1 collect, package, label, and preserve all evidentiary items.
G30.2 document chain of custody of all evidentiary items
College Park, Maryland on Tuesday, February 13, 1996
Q. Could you describe how the President’s head looked at the very first time that you saw it after it had been unwrapped?
A. Well, the most obvious thing was a large defect in the right parietal area. The
measurements are in the autopsy protocol, and the hair was matted in that area and bloody and so forth. And there was a suggestion like a contusion in the right frontal area over the right eyebrow. The skin was a little bit discolored in that area, but it wasn’t very remarkable. The most striking thing was this large defect. His face was, for all intents and purposes, normal. Normal as anybody can be in death, I guess. It was not significantly injured in any way.
Q. Were any portions of the brain extruding from any wounds in the head?
A. Well, the wound was so big that–I don’t know what you mean by extruding. It wasn’t really- -it was just a gaping hole and the brain was right there. It wasn’t really being extruded, no.
Q. So you could see it, but it was not as if it were coming out–
Q. –sort of just seeing inside a hole–
A. It was a big hole, yeah.
Q. Right below the middle of the skull, there is the number 17 with, again, arrows pointing, at least on the paper, up and down. Do you see that?
A. Yeah. I would presume that this is the antero-posterior maximum measurement of this defect. Okay?
A. So it was 17 centimeters (approx 6.7 in), fore and aft, if you will, and 10 wide (4 in). I got some slightly different measurement, I think, in my written report, but ball park, you know.
Q. Right below the 17 and the arrow, there’s the word, it looks as if it’s “missing.” Do you see that?
A. That much bone is missing. That was a big defect, you see.
Q. Now, when this 10 by 17 centimeters of bone is missing, does that mean that it was present nowhere in the autopsy room during the autopsy?
A. Not until later when part of it was brought to me, which I described, I believe, in the written report.
Q. So would it–
A. The pieces that were brought to me, it was either two or three, I think three: one pretty sizable one and two smaller ones. Again, I’m talking off the top of my head. When they were repositioned to where they should have been, there was still a defect. We didn’t have sufficient bone to totally close the defect.
Q. So then from the first time that you saw the President’s head without the pieces of skull fragment that came in later, the approximate measurements of the missing scalp would be roughly 10 centimeters to 17 centimeters?
A. By 17, right.
Q. In the autopsy protocol, you referred to the amount as being 10 centimeters by 13 centimeters, and let me show you the protocol.
A. I’m not going to debate it. I mean, it would depend on how you were measuring it, because it wasn’t a–like this room is 25 by 35. It’s got walls and extreme–this was irregular, so you could make any kind of measurement you want…
Q. Was scalp missing from that same–from those same measurements?
A. Not as much scalp. There was some scalp missing, but we were able to pretty much close the scalp, skin, when we finished everything. So I can’t tell you how much was–but it was not that much skin missing, no.
Q. So mostly skull fragments–
Q. –but not the scalp itself?
A. Right. Right.
Q. The next question I wanted to ask you would be where, as best you recall, the lacerations were on just the scalp.
A. They went in every direction. They were– I think I described them as stellate. So they went down this way and back, and the whole area was lacerated.
Q. For the scalp?
Q. In towards the back of the head, so in the occipital–
A. Not really. Not really. The parietal region primarily. Parietal and to some extent occipital, but primarily parietal.
Q. Okay. Just for any scalp lacerations, were there any tears over the occipital bone?
A. No. No.
Q. None whatsoever?
Q. There were tears, however, over the temporal–
A. Temporal and parietal
Q. And the parietal.
Q. Do you have any recollection now about radio-opaque objects being in or appearing in the X-rays?
A. Yes, in the skull. There were some little tiny fragments of radio-opaque material, which we thought to be bullet fragments, traversing from– well, I don’t know. It looked like it was going from posterior to anterior. Very fine, sort of granular-looking material, went almost as far forward as the frontal bone, but not quite that far.
Q. Those are dust-like fragments?
A. Yes, right.
Q. Were there any–
A. A couple of them were–we did retrieve a couple that were maybe a couple millimeters, as I recall, from that path, you know. But that was about all.
Q. Do you recall where you retrieved those fragments?
A. I think from the frontal lobe of the brain.
Q. Were there any X-rays taken between the time that you–or after the time that you removed the small fragments?
Q. So all of the X-rays of the cranium were taken before any–
Q. –metal fragments were removed?
A. Exactly, exactly.
Q. Do you have any recollection now about the shapes of the fragments that were removed?
A. They were small and irregular. That’s all I can tell you.
Q. Long and sliver-like or roundish or–any recollection?
A. Flat, irregular, two or three millimeters.
Q. Dr. Humes, let me show you part of your testimony to the HSCA. Question by Mr. Cornwell– I’ll read this into the record. It’s from page 330, and it is Exhibit 21 to this deposition.
“Mr. Cornwell: And you finally began to write the autopsy report at what time?”
“Dr. Humes: It was decided that three people couldn’t write the report simultaneously, so I assumed the responsibility for writing the report, which I began about 11 o’clock in the evening of Saturday November 23rd, having wrestled with it for four or five, six hours in the afternoon, and worked on it until 3 or 4 o’clock in the morning of Sunday, the 24th.”
“Mr. Cornwell: Did you have any notes or records at that point as to the exact location of the –
“Dr. Humes: I had the draft notes which we had prepared in the autopsy room, which I copied.”
Now, again, the question would be: Did you copy the notes so that you would have a version of the notes without the blood on them but still notes rather than a draft report?
A. Yes, precisely. Yes. And from that I made a first draft, and then I destroyed the first draft and the notes.
Q. So there were, then, two sorts of documents that were burned: one, the draft notes, and, two, a draft report?
Q. Is that correct?
A. That’s right. So that the only thing remaining was the one that you have.
Q. Why did you burn the draft report as opposed to the draft notes?
A. I don’t recall. I don’t know. There was no reason–see, we’re splitting hairs here, and I’ll tell you, it’s getting to me a little bit, as you may be able to detect. The only thing I wanted to finish to hand over to whomever, in this case Admiral Burkley, was my completed version. So I burned everything else. Now, why I didn’t burn the thing that J wrote, I have no way of knowing. But whether it was a draft or whether it was the notes or what, I don’t know. There was nothing left when I got finished with it, in any event, but the thing that you now have, period.
Q. Well, the concern, of course, is if there is a record related to the autopsy that is destroyed, we’re interested in finding out what the exact circumstances–
A. I’ve told you what the circumstances were. I used it only as an aide-memoire to do what I was doing and then destroyed it. Is that hard to understand?
Q. When I first asked the question, you explained that the reason that you had destroyed it was that it had the blood of the President on it.
Q. The draft report, of course, would not have had the blood of–
A. Well, it may have had errors in spelling or I don’t know what was the matter with it, or whether I even ever did that. I don’t know. I can’t recall. I absolutely can’t recall, and I apologize for that. But that’s the way the cookie crumbles. I didn’t want anything to remain that some squirrel would grab on and make whatever use that they might. Now, whether you felt that was reasonable or not, I don’t know. But it doesn’t make any difference because that was my decision and mine alone. Nobody else’s.
Q. You’re welcome to read as much as you would prefer.
Q. It’s just I have a question for you on the first sentence only.
Q. You see that Dr. Burkley identifies the posterior back at about the level of the third thoracic vertebra. Do you see that?
Q. Was that correct?
A. I don’t know. I didn’t measure from which vertebra it was. It’s sometimes hard to decide which vertebra, to tell you the truth, by palpation. Maybe you can do it accurately because the first and second–did I say the third? Oh, he says third thoracic. I think that’s much lower than it actually was. I think it’s much lower than it actually–you have seven cervical vertebrae. I don’t know. I mean, he’s got a right to say anything he wants, but I never saw it before, and I don’t have an opinion about it.
Q. Did you ever discuss which vertebra–
A. I never discussed anything about it with George Burkley, period, or anybody else.
I mean, with all due respect, you seem to have come to me from left field. You know, I just- -they’re not things of which I’m aware.
The measurements I made, as far as I’m concerned, were accurate. You could debate whether they were wise choices to be made or not, but they were accurate.
. . .
It is my opinion that from the moment JFK’s body was removed from Parkland Hospital, a medical cover-up was assured.
The so-called “autopsy” at Bethesda was beyond incompetent, it was criminal negligence__a complete fraud. This can only indicate one thing: CONSPIRACY.