Chain of custody and corporate internal investigations: Possibilities, enforceability and procedural consequences of its violation

Abstract

The aim of the present essay is to analyze the following questions: Is it possible and enforceable the observance of the chain of custody of the evidence from corporate internal investigations? Which are the eventual implications of its violation when it is intended to present these elements in a future criminal procedure? To answer these questions, we will initially carry out a brief study on the origins, formalities and purposes of these procedures, which are closely related to the mechanisms of enforced self-regulation, particularly to the compliance programs. However, since they are diligences promoted in a private scope, without due adversarial procedures and with limited state regulations, it is questioned how to ensure the traceability of the evidence sources in these environments. Therefore, after a study on the chain of custody and its fundamentals, we will seek to analyze, from a deductive methodology, how the authenticity and completeness of the documents arising from internal investigations can be assured and what are the possible consequences in criminal proceedings, of the "breaking" of these chain of evidence.