I have been watching the Oxygen television network series “The Search for Natalee Holloway” on Saturday nights. The show documents Natalee’s father Dave Holloway’s efforts to continue the search for the truth about what happened to his daughter. During the final episode on September 23, 2017, Dave Holloway and his private investigator, with the help of an informant, obtained four pieces of bone from a self-proclaimed accomplice who said he kept them as a trophy when he helped dispose of Natalee’s remains. Initially, the informant turned the bones over to the Aruban Police Chief. However, Dave Holloway’s team began to fear that the police may not want to confirm whether Natalee’s remains had been found. Dave Holloway suspected that some officials were more concerned about the chilling effect such a discovery would have on their tourism industry than about getting to the bottom of what happened to Natalee. He harkened back to what he believed was the widespread police and political corruption that had compromised the investigation from the beginning.

In 2005, 17-year old Natalee Holloway disappeared while vacationing with friends in Aruba. An international media firestorm erupted. The Aruban authorities held Joran Van Der Sloot, a Dutch national, for questioning but eventually released him after concluding there wasn’t enough evidence to charge him. Their investigation, or lack thereof, was criticized and allegations of corruption were an undercurrent in the case. Five years to the day that Natalee disappeared, Van Der Sloot confessed to the violent murder of a young woman in Lima, Peru. He is serving a 28-year sentence.

Natalee’s Holloway’s body was never found. In 2012, Dave Holloway went to court in the United States to have her pronounced dead. However, he has continued to follow up on investigative leads. He hired a private investigator who, working with an informant, obtained taped admissions from a subject who claimed he befriended Van Der Sloot in 2010 when he returned to Aruba. All of these efforts were video recorded and became the basis for the Oxygen television series. This former drug addict admitted to the informant that Van Der Sloot had paid him $1500 to help him dig up Natalee’s body and dispose of her remains. According to this accomplice, Van Der Sloot became nervous in 2010 that renewed efforts to find Natalee and publicity surrounding the discovery of a jawbone which turned out to belong to someone else might reignite interest in finding her.

According to the accomplice, Van Der Sloot and his father had removed Natalee’s body from the beach the night she died. He claimed Van Der Sloot told him they buried her in a burlap sack wrapped in a blue tarp on a hill behind a sparsely populated residential area hours after she was last seen alive. In 2010, Van Der Sloot returned to the burial location and, with the help of the accomplice, dug up her body. They put the burlap sack in the trunk of the accomplice’s Aunt’s car and returned to her house where they crushed up the bones so they wouldn’t be recognizable as human. The accomplice claimed they burned the skull in a firepit to remove trace hair evidence. They then rented a fishing boat and dumped the remaining skeletal material in the ocean.

The accomplice, however, told the informant that he had retained several pieces of the bones as a trophy and buried them in a plastic baggie in his Aunt’s backyard along a fenceline.

He retrieved the bones while the informant took a cell phone video of him digging up the baggie. They turned the bones over to the Aruban police after Van Der Sloot’s accomplice attempted to secure a verbal assurance of immunity.

Several weeks later, the Aruban police met with Dave Holloway and showed him the bones, maintaining that they had an anthropologist examine them and the expert concluded they were animal bones. Believing that the Aruban police had no intention of submitting the bones for DNA testing, and skeptical of whether an expert could tell animal bone fragments from human bone fragments without conducting DNA testing, Dave Holloway requested that the authorities turn the bones over to him so that he could get them independently tested. The Arubans do surrender the bones to Dave Holloway but only after they make perfectly clear that once the bones leave their custody they could not be used as evidence in a trial against Van Der Sloot’s accomplice (if there ever was a trial). Although not specifically explained by the Aruban police chief, he was referring to a well-accepted rule of evidence that requires prosecutors to establish the “chain of custody” of evidence introduced at a trial.

Chain of custody refers to the chronological documentation (paper trail) of the custody, control, transfer, analysis, and disposition of physical or electronic evidence. When evidence is offered for use in court to convict persons of crimes, it must be handled in a manner so as to prevent tampering or contamination. The purpose of recording the chain of custody is to establish that it is actually evidence of the alleged crime, rather than having, for example, been “planted”, tampered with, substituted for, or mixed up with evidence actually connected to the crime.

An identifiable person must always have physical custody of the evidence. This usually means that a police officer will take charge of an item of evidence, document its collection, and hand it over to an evidence clerk for storage in a secure place. Between the collection of the evidence and its appearance in court the movement of the item should be completely documented every time it changes hands (for example, police officer documents he/she transfers custody to the lab or picks up the item once it is tested) in order to withstand legal challenges to the authenticity of the evidence. The signatures of persons involved at each step usually appear on custody forms for this purpose.

If the chain of custody is broken, the evidence may lack credibility and could be deemed inadmissible. A common example would be drug prosecutions where illegal drugs have been seized by law enforcement personnel. In those cases, a chain of custody is important to establish that the substance in evidence was properly tested to confirm it is, in fact, narcotics and that the drugs were in the possession of the defendant. If the sample cannot be located by the lab or the police cannot show the sample remained securely in their custody, the evidence may be suppressed because a chain of custody cannot be established. However, sometimes evidence is admitted even if some breaks in the chain of custody occur and the court may leave it to the jury to give proper weight to the evidence if it believes the evidence is what it is offered to be. See eg Fed.R.Evid. 901.

In the Holloway example, once the Aruban police transfer custody of the bones to a civilian, they can no longer document that the bones have not been tampered with or prove they retained the same character as when they first examined and possessed them. Therefore, if

Aruban prosecutors charge Van Der Sloot’s accomplice with a crime, they may be prevented from introducing the bones or any testing into evidence. There would be an argument, however, that even though Dave Holloway is a civilian, the break in the chain of custody should be a matter for the jury who could give the evidence whatever weight they determined was appropriate. If the Aruban anthropologist had documented either in photos or reports the character of the samples that he examined, the lab that received the bones from Dave Holloway may be able to sufficiently establish the bones were in the same or a similar condition, thereby minimizing the effect of the break in custody. It would all be fact dependent upon what the documented condition of the bones was before and after Dave Holloway had them.

The bones were a catch-22 for Dave Holloway; he didn’t believe the Aruban authorities intended to have them scientifically tested to prove definitively whether they were Natalee’s remains; if he took the bones to test himself and they turned out to be Natalee’s, he risked jeopardizing the prosecution of an admitted accomplice of Joran Van Der Sloot. The final lab results are due to be reported on October 6, 2017. Whether the legal principle of chain of custody becomes an issue depends, in part, on the final identification of the remains by the lab next month.