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RULE 6

RULE 6
RULE FOR CHEMICAL ANALYSIS AND CHAIN OF CUSTODY

(a) Report of Chemical Analysis. For the purpose of establishing the physical evidence of a controlled substance or other substance regulated by Title 44, Chapter 53 of the Code of Laws or Rule 61-4 of the Department of Health and Environmental Control, a report signed by the chemist or analyst who performed the test or tests required concerning its nature shall be evidence that the material delivered to him or her was properly tested under procedures approved by the State Law Enforcement Division (SLED), that those procedures are legally reliable and that the material is or contains the substance or substances stated. The report shall be admitted without the necessity of the chemist or analyst personally being present or appearing in court provided:

(1) the report, at a minimum, identifies each item tested, the kind of test or tests conducted on each item, and the chemist's or analyst's conclusion whether the item is or contains a controlled or other regulated substance (to include weight or quantity, if appropriate) in language which can be understood by a juror without the necessity for expert testimony; and,

(2) the report is accompanied by an affidavit of the chemist or analyst who performed the test or tests that:

(A) he or she is certified by SLED as qualified under standards approved by SLED to analyze those substances;

(B) sets forth his or her training and experience as a chemist or analyst, to include the number of times he or she has been qualified as an expert witness and testified in court; and,

(C) he or she conducted the test or tests shown on the report using procedures approved by SLED and that the report accurately reflects his or her opinion regarding the results of those tests.

The defendant or opposing party may object to the introduction of a chemist's or analyst's report at a preliminary hearing, or if no preliminary hearing is held, not later than ten (10) days prior to the trial of the case. If such objection is properly made, the trial judge shall require the chemist or analyst to be present at trial for the purpose of personally testifying.

(b) Certified or Sworn Statement. For the purpose of establishing a chain of physical custody or control of evidence entered under Part A of this Rule, a certified or sworn statement signed by each successive person having custody of the evidence that he or she delivered it to the person stated is evidence that the person had custody and made delivery as stated without the necessity of the person who signed the statement being present in court provided: (1) the statement contains a sufficient description of the substance or its container to distinguish it; and (2) the statement says the substance was delivered in substantially the same condition as when received.

The defendant or his attorney may demand appearance in court of the persons within the chain of custody in the same manner as provided in Section (a).

(c) Disclosure. In a criminal prosecution any reports or papers mentioned in Sections (a) or (b) shall be made available to the defendant or his attorney at the preliminary hearing or if no hearing is held, not later than eleven (11) days prior to the trial of the case.

(d) Waiver of Rights. Nothing in this Rule shall preclude the right of any defendant to obtain an expert chemist or analyst to test a substance in his behalf, provided it is tested under the supervision of the authority having custody of the substance or of SLED. Nothing in this Rule shall preclude the right of any party to introduce any evidence supporting or contradicting reports or papers entered into evidence under this Rule.

Note:

Rule 6 is the language of Criminal Practice Rule 7.

Notes to 1994 Amendment:

This amendment changes Rule 6(a). Under the former rule, all the requirements of this rule were intended to be shown by a single report. This amendment allows the report of the chemist or analyst containing the results of the testing to be a separate document from the affidavit of the chemist or analyst establishing the remaining requirements of this rule. Additionally, the amendment makes minor changes to clarify the meaning of the rule.