A. Procedural Considerations

• Library: Drug Litigation in South Carolina (SCBar) (2021 Ed.)

A. PROCEDURAL CONSIDERATIONS

1. Chain of Custody

a. General Law

Non-fungible evidence is unique and identifiable, such as a gun or a purse, and does not require the establishment of a strict chain of custody.¹

Where the issue is the admissibility of non-fungible evidence — that is, evidence that is unique and identifiable — the establishment of a strict chain of custody is not required: If the offered item 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 a substantially unchanged condition.²

"Readily identifiable items must merely be authenticated by a showing of evidence sufficient to support a finding that the matter in question is what its proponent claims."³ In State v. Hatcher,⁴ the S.C. Supreme Court examined three factors to determine whether a trial court abused its discretion in admitting evidence over a chain of custody objection. The court examined "the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it."⁵

In contrast, fungible evidence is not readily identifiable and may easily be tampered with, such as drugs or blood samples, and, thus, does require the establishment of a strict chain of custody.⁶ "A party offering fungible items, such as drugs, as evidence must establish a chain of custody as far as practicable."⁷ Admissibilty does not require a perfect chain of custody, but it does require a complete chain.⁸ "The ultimate goal of chain of custody requirements is simply to ensure that the item is what it is purported to be."⁹

"When multiple people have handled [an] analyzed substance, the identity of the individuals who acquired the evidence and what was done with the evidence must not be left to conjecture."¹⁰ Regarding whether each person handling the evidence must testify, the S.C. Supreme Court has stated:

Testimony from each custodian of fungible evidence, however, is not a prerequisite to establishing a chain of custody for admissibility. Where other evidence establishes the identity of those who have handled the evidence and reasonably demonstrates the manner of handling of the evidence, our courts have been willing to fill gaps in the chain of custody due to an absent witness.¹¹

Thus, if the party offering the fungible evidence identifies each person handling the evidence, "and the manner of handling is reasonably demonstrated, the circuit court does not abuse its discretion in admitting the evidence absent proof of tampering, bad faith, or ill-motive."¹²

The question becomes whether any gaps in the chain are missing links or weak links. While proof of chain of custody need not negate all evidence of tampering, when a link in the chain is missing "because the identity of those who handled the substance was not established at least as far a practicable,"¹³ the evidence is inadmissible.¹⁴ "Who acquired the evidence and what was done with the evidence between the taking and the analysis must not be left to conjecture."¹⁵

In State v. Sweet,¹⁶ the South Carolina Supreme Court held that the State failed to establish a complete chain of custody where the confidential informant in an undercover buy did not testify. The court rejected the State's argument that officers' knowledge of the confidential informant's name established his identity.

Furthermore, although the unavailability of the confidential informant made it impracticable to produce him as a witness at trial, the State could have taken a sworn statement from the informant before he left the station and produced the statement at trial under the procedures of South Carolina Rule of Criminal Procedure 6(b).¹⁷

Thus, the identity of the confidential informant was a missing link, and the drug evidence was inadmissible.

"Where there is a weak link in the chain of custody, as opposed to a missing link, the question is only one of credibility and not admissibility."¹⁸ Thus, if the State establishes a continuous chain of custody of all the persons who had custody or control of the evidence, any discrepancies in the chain regarding the care of the evidence, including discrepancies as to the dates within the chain¹⁹ or failure to comply with law enforcement policies,²⁰ go to the weight or credibility of the evidence and not to its admissibility.²¹

In State v. Trapp,²² the State established the identities of all persons who handled the drug evidence. However, one of the witnesses died before trial. The trial court found the witness's absence at trial a weak link rather than a missing link in the chain because another witness could testify as to what the deceased witness did with the drug evidence. The court of appeals affirmed stating:

Precedent does not require the court to account for every minute of the custody and control of the evidence. Rather we must view the evidence and ascertain whether the State identified the individuals involved in handling the evidence, reasonably demonstrated that the evidence was handled properly, and established that the evidence was the same as the evidence tested.²³

Thus, any issues regarding the less-than-perfect chain involved credibility rather than admissibility.

b. Rule 6, South Carolina Rules of Criminal Procedure

Rule 6 of the South Carolina Rules of Criminal Procedure is an alternative to presenting testimonial evidence establishing the identity of all persons in the chain of custody.²⁴ "Rule 6 does not supplant the general law governing chain of custody requirements but provides an alternate means of establishing chain of custody."²⁵ Rule 6 sets forth the procedures for the admission of chemical analysis reports and of chain of custody statements. The rule first provides that a report signed by the chemist or analyst who performed the tests to determine whether the substance at issue is a controlled substance is "evidence that the material delivered to him or her was properly tested under procedures approved by [SLED], that those procedures are legally reliable, and that the material is or contains the substance or substances stated."²⁶

The report may be admitted without the necessity of the testimony of the chemist or analyst if the following conditions are met. First, the report must, at a minimum, identify each item tested, identify the kind of tests performed, and identify the conclusion of whether the substance tested is a controlled substance.²⁷ If weight or quantity are appropriate to the substance at issue, the report must include the weight or quantity of the particular substance tested.²⁸ The report must be in language that a juror can understand without need for expert testimony.²⁹ The second condition requires the chemist or analyst to submit an affidavit with the report stating that the chemist or analyst is certified by SLED to analyze controlled substances; setting forth the chemist's or analyst's training and experience as a chemist or analyst, including the number of times he or she has been qualified as an expert to testify in court; and stating that the chemist or analyst conducted the tests indicated in the report using approved SLED procedures and that the report is an accurate reflection of his or her opinion regarding the test results.³⁰

A defendant may demand that the chemist or analyst appear in court despite the provisions of Rule 6(a)(1) and (2) if the defendant properly objects to the introduction of the report at the preliminary hearing.³¹ If no preliminary hearing is held, the defendant must make an objection to the introduction of the report no later than ten days prior to trial of the case.³² If the defendant objects within these time parameters, the court must require the chemist or analyst to be present at trial to testify.³³ However, if the defendant fails to timely object, the report will be admitted without the need for testimony of the chemist or analyst.

Under Rule 6(b), in order to establish a chain of custody for the substance tested, a certified or sworn statement signed by each successive person having custody or control of the substance that he or she delivered the substance to the person stated is sufficient evidence that the person had custody of the substance and delivered the substance as stated.³⁴ The statement obviates the need for the person signing the statement to appear in court to testify only if the statement contains a description of the substance or its container that is sufficient to distinguish it and if the statement avers that the substance was delivered in substantially the same condition that it was in when received.³⁵

However, the court of appeals stated in State v. Chisolm,³⁶ "[c]ustodial signatures on an evidence bag fail to establish adequate chain of custody where the custodians do not provide testimony under oath or produce sworn statements pursuant to Rule 6(b)."³⁷ In State v. Taylor,³⁸ the court of appeals explained this statement. In Chisolm, the dates and signatures on the evidence bag indicated that an evidence technician had retrieved it and six weeks later delivered to a subsequent technician. The State presented no evidence "indicating how long the first technician possessed the bag, in what condition he received it, where it was stored, or how the second technician came into possession of the bag."³⁹ Neither technician testified at trial. Under these circumstances, the court of appeals held in Chisolm that the cocaine evidence was inadmissible because "the identity of the persons handling the evidence was left to conjecture."⁴⁰ According to the Taylor court, the Chisolm statement was applying "the longstanding rule that where there are unexplained gaps in the chain of possession, leaving to conjecture the identities of the people who handled the evidence and the...