A Breakdown of
Courts and Judicial Procedures
§10-1001 to §10-1003
Alternate working title:
“LIMS and You”
Background
In 1974, the General Assembly introduced CJP §10-1001 et seq. in order to allow CDS analyses into evidence without requiring the presence of the chemist or those in the chain of custody.
The legislative purpose of §10-1001
et seq. was to create an “evidentiary shortcut” to assist prosecutors in
streamlining their cases while still respecting the confrontation clause. Best
v. State, 79
“The purpose of Chapter 794 of the Acts of 1974 [CJP §10-1001 et seq] was to facilitate the admission of evidence and not to require the exclusion of evidence.” Best at 252.
In 1987, the Court of Special
Appeals in Parker v. State, 72
In response to Parker[1],
the legislature amended §10-1002 effective July 1, 1988 so that the definition
of "chain of custody" included only those persons who actually
handled the CDS, not those who merely handled the packaging. See Wilkinson
v. State, 78
The floor report for the 1988
amendment observed that police personnel who only deliver or have temporary
custody of a sealed package are not in a position to alter the substance and
are not necessary witnesses. Thompson v. State, 80
The legislature’s quick response to the Parker decision prompted the Court of Special Appeals to alter its perception of the acts, noting that the amendment “reflect[s] a less rigid legislative intent behind all three sections initially enacted by the Acts of 1974.” Best at 256.
The Basics
Chain of Custody and the Chemist – Overview of §10-1001 et seq.
Courts And Judicial Proceedings §10-1001 et seq. provide a “shortcut” to admitting a LIMS or other chemical analysis report as prima facie (but refutable) evidence that the item submitted was the specified type of CDS and that the chain of custody was proper.
In order to obtain this “shortcut,” it is necessary that the State comply with certain standards:
- A copy of the report/statement must be made available to defendant at least 10 days prior to the introduction of the report/statement at trial. CJP § 10-1003(a)(3).
- The report must be signed/certified by the chemist as set out in § 10-1001.
- The chain of custody must have identifying information regarding the property submitted and contain the signatures of each person as set out in § 10-1002.
Even if this is done, the Defendant can file a written request to the State at least 5 days before trial requiring that it produce the chemist and those in the “chain of custody.”
§10-1002(a) defines the “chain of custody” which the State is required to produce (with some caveats) as:
- The seizing officer
- The packaging officer
-
The chemist or other person who actually touched the
substance and not merely the outer sealed package in which the substance was
placed by the law enforcement agency before or during the analysis of the
substance
If the State fails to meet these
requirements, it is merely returned to the standard manner of proof in criminal
cases. Best v. State, 79
In the event that the shortcut does
not apply, the chemist must be called and a chain of custody (generally the
recovering officer, packaging officer, submitting officer, and anyone else who
handled the actual drugs before they were analyzed) must be established. The
State only has to prove that there is a reasonable
probability that the item was not tampered with.
The Statutes
§10-1001. Chemical test report.
(emphasis added and structure shifted for ease of understanding)
For the purpose of establishing that physical evidence in a criminal or civil proceeding constitutes a particular controlled dangerous substance under Title 5 of the Criminal Law Article,
A report signed by the chemist or
analyst who performed the test or tests as to its nature is prima facie evidence
o that the material delivered to the chemist or analyst was properly tested under procedures approved by the Department of Health and Mental Hygiene
o that those procedures are legally reliable
o that the material was delivered to the chemist or analyst by the officer or person stated in the report
o and that the material was or contained the substance therein stated,
without the necessity of the chemist or analyst personally appearing in court,
provided the report
o identifies the chemist or analyst as an individual certified by the Department of Health and Mental Hygiene, the Department of State Police, the Baltimore City Police Department, or any county police department employing analysts of controlled dangerous substances
o [identifies the chemist or analyst] as qualified under standards approved by the Department of Health and Mental Hygiene to analyze those substances
o states that the chemist or analyst made an analysis of the material under procedures approved by that department
o and also states that the substance, in the opinion of the chemist or analyst, is or contains the particular controlled dangerous substance specified
Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumptions raised by the report.
§10-1001 et seq. are a
shortcut, not a mandate
Notably, “§10-1001 does not require the admission of a chemical analysis report.”
Best v. State, 79
Legislative purpose
“The legislative intent in adopting
§10-1001 was to accelerate the trial of cases where there is no allegation that
the evidence has been either purposefully adulterated or mistakenly
substituted, by dispensing with the requirement that the chemist appear in
court. His report is deemed acceptable and reliable.” Thompson v. State,
80
Application of Section
The requirement of certification
alluded to in §10-1001 only applies when the chemist does not appear in court to testify. Rice v. State, 89
Pre-requisites and
Limitations
If the State notifies the defense
that it will be calling the chemist as a live witness at trial, it can not rely
on §10-1001 without notifying the defense of its changed intent at least 10
days before trial. Knight v. State, 41
If there is
a mistrial or new trial granted on appeal, the State must once again notify the
defense of its intent to rely on §10-1001 et seq. Harrod v. State, 423
§10-1001 is limited by §10-1003 in that it requires that a copy of the report or statement to be introduced be mailed, delivered, or made available to the defense at least 10 days before trial. CJP §10-1003(a)(3).
Upon written defense request made at least 5 days before trial, the chemist must be called as a state witness and the prima facie evidence described in §1001 does not apply to the chemist’s testimony. CJP §10-1003(a)(1),(2).
§10-1002. Chain of physical custody or
control.
(emphasis added)
(a) "Chain
of custody" defined. -- In this part:
(1) "Chain of custody" means:
(i) The seizing officer;
(ii) The packaging officer, if the packaging officer is not also the seizing
officer; and
(iii) The chemist or other person who actually touched the substance and not merely the outer sealed
package in which the substance was placed by the law enforcement agency before
or during the analysis of the substance; and
(2) "Chain of custody" does not include a
person who handled the substance in any form after analysis of the substance.
(b) Statement. --
(1) For the purpose of establishing, in a criminal or
civil proceeding, the chain of physical custody or control of evidence
consisting of or containing a substance tested or analyzed to determine whether
it is a controlled dangerous substance under Title 5 of the Criminal Law Article,
a statement signed by each successive person in the chain of custody[2] that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement.
(2) The
statement shall contain a sufficient description of the material or its
container so as to distinguish it as the particular item in question and shall
state that the material was delivered in essentially the same condition as
received.
(3) The statement may be placed on the same document as
the report provided for in §10-1001 of this part.
(4) Nothing in
this section precludes the right of any party to introduce any evidence
supporting or contradicting the evidence contained in or the presumption raised
by the statement.
The purpose of §10-1002 is to expedite
“the trial of cases by eliminating from the chain of custody those persons
peripherally or routinely involved in the handling or transportation of the
evidence.” Thompson v. State, 80
§10-1002 is limited by §10-1003 in that it requires state notification to the defense 10 days before trial. CJP §10-1003(a)(3).
Upon defense request, the prima facie evidence described in (b)(1) does not apply to members of the “chain of custody” defined in (a)(1). CJP §10-1003(a)(1),(2).
§10-1003. Presence of chemist or analyst
at criminal proceeding; availability of chemical report to defense counsel.
(emphasis added and structure shifted for ease of understanding)
(a) In general.
--
(1) In a
criminal proceeding, the prosecution shall,
o upon written demand of a defendant
o filed in the proceedings at least 5 days prior to a trial in the proceeding
require the presence of
o the chemist,
o analyst,
o or any person in the chain of custody
as a prosecution witness.
(2) The provisions of
§§10-1001 and 10-1002 of this part concerning prima facie evidence do not apply
to the testimony of that witness.
(3) The provisions of §§10-1001 and 10-1002 of
this part are applicable in a criminal proceeding only when a copy of the
report or statement to be introduced is
mailed, delivered, or made available to counsel for the defendant or to the
defendant personally when the defendant is not represented by counsel, at least 10 days prior to the introduction
of the report or statement at trial.
(b) Witness for defense. -- Nothing contained in this part shall prevent
the defendant from summoning a witness mentioned in this part as a witness for
the defense.
Purpose
§10-1003
preserves the defendant’s confrontation clause right by, upon demand, requiring
the production of “live witness” or else forfeiting the chemist’s “out-of-court
declaration (the chemist's written analysis).” Best v. State, 79
§10-1003 is not, however, “a
technical rule etched in stone requiring either the production of three live
witnesses or forfeiture of the evidence upon which the prosecution is founded.”
Thompson v. State, 80
“Sec. 10-1003 was not intended to be an exclusionary rule.” Thompson
at 683-684 (emphasis added). It must be read in conjunction with §§10-1001 and
10-1002, and the plain meaning of all three sections is to simplify the
production of evidence subject to three qualifications set forth in §10-1003.
Remedy for violation
“Section 10-1003 is not an exclusionary rule, but only a set of
qualifications on an otherwise extraordinary inclusionary rule.” Best v.
State, 79
Where §10-1001 et seq. cannot be
complied with, it is sufficient that the State be placed “in the same place it
was before the rules were promulgated.” Thompson v. State, 80
“When the defendant, pursuant to §10-1003,
demands the production of certain witnesses, the State may not resort to
the documentary shortcuts but must follow routine practice” under the standard
rules of evidence relating to chain of custody. Best at 254 (emphasis
added). “When the exceptions apply, the State is no better off than it was
before the 1974 statute eased its burden of production. In no event, however,
is the State in a more difficult position than it had been in prior to the 1974
statute.”
The cure for a violation of §10-1001 et seq. is the production of the live witness rather than the production of an out-of-court declaration. Best at 255.
Confrontation Clause
And, of course, the defendant has no duty to explain his decision to exercise his confrontation clause rights under §10-1003. See Thompson at 683 (“A particular defendant may invoke his legislative command because of a firm belief that he can successfully refute or cast doubt upon the allegations made, or he can demand that the witnesses appear for no other reason than to drag out the trial and inconvenience everyone involved. The latter scenario, we agree, was not intended by the Legislature's effort to protect a defendant's right of confrontation in drug cases, but abuse of the process unquestionably remains.”).
Proving Chain of Custody
Where There is a §10-1003 Request
Separating out the Couriers
In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed at least 5 days prior to trial, require the presence of the chemist, analyst, or any person in the chain of custody as a prosecution witness. CJP §10-1003(a)(1).
The “chain of custody” is defined to include anyone who has actually touched “the substance” prior to or while it is being analyzed. CJP §10-1002(a).
Unfortunately, §10-1002 is poorly drafted and uses the words “chain of custody” to refer to the people involved [§10-1002(a)(1)] as well as the actual sequence of physical custody [§10-1002(b)(1)]. The case law cited below, however, directs that “couriers” (those who merely handle the packaged drugs) are excluded from a §10-1003 demand and need not testify.
This is
only the case when the State has provided/made-available to the defense a copy
of the chain-of-custody form 10 days before trial. CJP §10-1003(a)(3).
Otherwise, the State must use standard evidentiary rules. Best v. State,
79
Where there is a
§10-1003 request by the defense for the “Chain of Custody,” who is required?
“Chain of Custody” is defined for purposes of §10-1001 et seq. as: the seizing officer; the packaging officer (if the packaging officer is not also the seizing officer); and the chemist or other person who actually touched the substance and not merely the outer sealed package in which the substance was placed by the law enforcement agency. CJP §10-1002(a)(1)(emphasis added).
“‘Chain of custody’ does not
include a person who handled the substance in any form after analysis of the
substance.” CJP §10-1002(a)(2).
“It is clear that” the legislature “never
intended that couriers should be part of the chain of custody.” Wilkinson v.
State, 78
Whether an individual in the chain
of custody is a required witness or merely a “courier” may be inferred. See
Banks v. State, 84
Proving CDS Chain of Custody Generally
Unique vs. Non-Unique
Items
If offered evidence possesses
characteristics which are fairly unique and readily identifiable, and if the
substance of which the item is composed is relatively impervious to change, the
trial court is viewed as having broad discretion to admit merely on the basis
of testimony that the item is the one in question and is in substantially
unchanged condition. Levine v. State, 93
On the other hand, if the offered
evidence is of such a nature as not to be readily identifiable, or to be
susceptible to alteration by tampering or contamination, sound exercise of the
trial court's discretion may require a substantially more elaborate foundation.
Levine at 565. A foundation of the latter sort will commonly entail
testimonially tracing the 'chain of custody' of the item.
The key, then, is to make the CDS in question as identifiable/unique as possible based on the facts (Batman-logo packaging, manner of bundling, etc).
Where the CDS is in a container,
the container itself may be identified as a “unique” item. See Levine
v. State, 93
Chain of Custody
The proponent of a particular
tangible item of evidence must establish its "chain of
custody," i.e., must account for its handling from the time it was seized
until it is offered into evidence. Jones v. State, 172
The circumstances surrounding the safekeeping of the item of evidence during that time need only be proven as a reasonable probability; in most instances established by responsible parties who can negate a possibility of 'tampering' and thus preclude a likelihood that the thing's condition was changed." Jones at 462 (emphasis added).
Where an item of evidence is
jointly possessed by two people, it is only necessary for one of them to
testify to prove the chain of custody. Lester v. State, 82
Missing Witnesses
Lester v. State, 82
Best v. State, 79
Thompson v. State, 80
Gap in Chain of Custody
Jones v.
State, 172
Wagner v. State, 160 Md. App. 531, 552 (2005)(court finding reasonable probability that glove left on porch overnight by witness before police collected it as evidence and subsequent shipping was in same condition when tested as when discovered not clearly erroneous)
Moore v.
State, 73
Levine v. State, 93
Thompson v. State, 80
Hawkins v. State, 77
Amos v. State, 42