Braun Decision: Why Ensuring A Proper Chain Of Custody Matters

Even in matters of the game of baseball, everyone deserves a fair trial.

There's a reason we don't imprison people accused of crimes based on information disclosed in newspapers and other media. Our Constitution guarantees a right to a fair trial before a jury of one's peers. A fair trial means following rules and procedures designed to ensure the reliability of evidence provided to the jury, meaning that the evidence is what it's claimed to be. There are rules ensuring the reliability of witness testimony, the reliability of documents, and the reliability of things found in and around a crime scene, such as weapons, fingerprints, footprints, blood, saliva and the like.

Physical evidence of a crime is quite powerful and difficult to rebut. That's why it's critical that there be an accurate and precise account of where and how that evidence was found, how it was gathered, and where it was held from the moment it was located until the moment it's shown to the jury. The same holds true for physical evidence gathered and then tested, like blood or saliva used to determine the identity of the assailant through DNA. This documentation is referred to as the "chain of custody."

In a criminal trial, if the prosecution cannot establish each link in the chain of custody for a particular piece of evidence, the judge is likely keep the jury from hearing about or seeing that evidence. Why? Because without an unbreakable chain of custody, the integrity of the evidence is questioned. If the accused is then found not guilty in the trial, he didn't "get off on a technicality." He was acquitted because the prosecution couldn't meet its burden of proving beyond a reasonable doubt -- based on reliable evidence -- that the accused had committed the crime.

What does this have to do with Ryan Braun?

Chain of custody principals are so important to establishing the reliability of evidence that they were incorporated into the MLB's Joint Drug Prevention and Treatment Program -- the policy under which Braun was tested for performance-enhancing drugs. Note the emphasis on the word "Joint." The terms of the Program were negotiated and agreed to by baseball owners and the MLB Players' Association, and were incorporated in the Collective Bargaining Agreement.

The policy -- which you can read in its entirety here -- contains a 28-page addendum describing, in minute detail, the process to be followed from the moment a urine test is scheduled until the moment the urine sample is delivered to the testing laboratory in Quebec, Canada.

Specifically, Section V of the Addendum states, "Absent unusual circumstances, the specimens should be sent by FedEx to the laboratory on the same day they are collected." Section IX then provides more detail about the FedEx process:

SECURITY AND SHIPMENT OF SPECIMENS

A. The urine specimens and chain-of-custody forms are now ready for transport.

B. The Sample Boxes shall be placed in the appropriate packaging.

1. 1 to 6 samples: a Federal Express Labpak will be used.

2. 7 + samples: a brown cardboard box will be used. Be sure to pack any

empty space with newspaper to avoid movement while in transit.

C. The package is to be sent by Federal Express to: [ADDRESS]


--SNIP--

E. If the specimen is not immediately prepared for shipment, the Collector shall

ensure that it is appropriately safeguarded during temporary storage.

1. The Collector must keep the chain of custody intact.

2. The Collector must store the samples in a cool and secure location.


F. When all of the specimens have been collected at the collection site, the

Collector shall take the specimens in the appropriate packaging to a FedEx

Customer Service Center for shipment. The specimens cannot be placed in a

FedEx Drop Box location.

G. The customer copy of the FedEx airbill should be sent (by Federal Express) to

CDT along with Pages 2 and 3 of the chain-of-custody form, test list and any

Problem Collection Logs. For complete paperwork distribution, see MLB

Paperwork Distribution Chart (Exhibit 5).

ESPN, FOX Sports and Yahoo! Sports all have reported that there was a 48-hour delay between the time Braun's urine specimen was collected and the time it was shipped via Federal Express to the laboratory. The urine sample was purportedly collected on a Saturday night, and the collector believed -- mistakenly or otherwise -- that there was no FedEx office open and accepting packages for shipping that evening, meaning that the urine sample could not leave the Milwaukee area until Monday morning.

Sources have told ESPN, FOXSports and Yahoo! Sports that the collector took the specimen to his home in the Milwaukee area and brought it to FedEx on Monday. There is some dispute about whether the collector stored the specimen in his refrigerator or in his basement. Braun's lawyers reportedly argued that neither the collector's refrigerator nor his basement was a "cool and secure location" as described in Section IX.E, above. The independent arbitrator, Shyam Das, apparently agreed.

In essence, it appears Mr. Das concluded that the chain-of-custody procedures set out in the 28-page Addendum were not properly followed and, like a judge overseeing a criminal trial, ruled that the test results derived from Braun's urine specimen could not be relied on by MLB to find a violation of the Joint Drug Policy.

Is Braun innocent? We don't know. It's been reported that Braun provided a urine sample and a testing laboratory determined that the sample contained high doses of testosterone. But we don't know precisely what the collector did with the specimen during the 48 hours in question. And we don't know how the specimen might have become degraded in that time.

Every day, in courtrooms around the country, judges are presented with similar facts and circumstances. And they often conclude, like Mr. Das did here, that when the chain-of-custody protocol has not been followed, the evidence is suspect and unreliable.

It's called getting a fair trial.

Before becoming a Contributor at Baseball Nation, Wendy practiced civil and criminal law for 17 years. She remains an active member of the California Bar.

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