TITLE ELEVEN — MISCELLANEOUS RULES
Rule 1109. Chain of Custody
When a Chain of Custody Must Be Shown.
Items Requiring a Chain. A showing of the chain of custody is required where the item offered is not readily identifiable by its appearance, where its evidentiary value depends upon its condition or composition, where it is susceptible to alteration, substitution, contamination, or tampering without ready detection, or where the item has been subjected to testing or analysis the result of which is offered.
Items Not Requiring a Chain. No showing of the chain of custody is required where the item is unique, or has been made unique by a mark, tag, serial number, inscription, or other identifying characteristic, and a witness with knowledge identifies it as the item in question and states that it is in substantially the same condition as when it was obtained. Testimony under Rule 901(2)(a) suffices for such an item.
Relation to Authentication. A chain of custody is a means of authentication under Rule 901(1) and is not a separate condition of admissibility. Where authenticity is established by another means sufficient under Rule 901, no chain need be shown.
What Suffices. A chain of custody is sufficiently shown where the proponent establishes, by testimony or by records made in the ordinary course of the custodian’s duties:
the time and place at which the item was obtained, expressed in Coordinated Universal Time, and the identity of the person who obtained it;
the manner in which the item was marked, tagged, described, or otherwise identified at the time it was obtained;
the successive persons who had custody of the item, and the manner and place of its keeping while in each person’s custody;
that the item was kept in a manner reasonably calculated to prevent alteration, substitution, contamination, or loss; and
that the item offered is the item obtained and is in substantially the same condition, or that any change in its condition is accounted for.
Reasonable Probability. The proponent need not exclude every possibility of alteration or substitution. It is sufficient that the evidence establishes a reasonable probability that the item is what it is claimed to be and has not been changed in an important respect.
Effect of a Gap. A gap or weakness in the chain of custody goes to the weight of the evidence and not to its admissibility, and is a proper subject of cross-examination and of argument. The court shall exclude the item only where:
the opponent makes a showing of tampering, substitution, or material alteration, and the proponent does not rebut it; or
the gap is so substantial that the evidence does not support a finding that the item offered is the item obtained.
Physical Items Seized Under a Search Warrant.
Inventory Required. Upon the return of a search warrant, the executing officer shall attach a true inventory of the property taken under the warrant and shall swear it by the affidavit which 6 R. Stat. § 131.016 prescribes, taken before the issuing officer or before another officer authorized to administer oaths, stating that the inventory contains a true and detailed account of all the property taken under the warrant.
Copy Left with the Owner. The officers executing the warrant shall ensure that a copy of the warrant and inventory is left with the owner of the searched premises, as 6 R. Stat. § 131.014 requires.
Return to the Court. The officer responsible for the execution of the warrant shall return the warrant to the issuing court in a timely manner, providing the court with information upon the contraband seized, as Rid. R. Crim. P. 44(12)(a) requires, and shall mark the warrant cleared in the dispatch channel as Rid. R. Crim. P. 44(11) provides.
The Inventory as the Beginning of the Chain. The sworn inventory establishes the matters stated in Rule 1109(2)(a) and Rule 1109(2)(b) for each item it lists, and is admissible for that purpose under Rule 1005(7) and Rule 902(2).
Suppression Distinguished. This subdivision governs the custody of an item. Whether an item was lawfully seized is governed by Const. art. I, § 8, by 6 R. Stat. §§ 131.009 through 131.017, and by Rid. R. Crim. P. 13.1.
Items Seized Incident to Arrest or Otherwise Without a Warrant. An item seized incident to a lawful arrest under 6 R. Stat. § 131.007, or otherwise seized without a warrant, shall be identified at the time of seizure by a mark, tag, or record identifying the item, the person from whom it was taken by username, and the time and place of the seizure, expressed in Coordinated Universal Time. The chain thereafter is shown as Rule 1109(2) provides.
Electronic Items.
What Shall Be Shown. For an electronic item the chain is shown by establishing the account, channel, server, system, or device from which the item was obtained; the person who obtained it and the manner and time of obtaining it, expressed in Coordinated Universal Time; each person who has had access to the item since; the manner in which it has been stored; and that it has not been altered except as Rule 1108(6) discloses.
Self-Authenticating and Certified Items. No chain need be shown for an item self-authenticating under Rule 902, including a record of the electronic filing system under Rule 902(8) and a recording or capture within Rule 902(4), or for an item accompanied by a certification sufficient under Rule 902(10).
Items Obtained by the Parties. Where an item was captured or exported by a party or by a party’s agent rather than by an officer, the chain is shown by the testimony of the person who made the capture or export and of each person who has held it since. The absence of a formal custody record does not require exclusion.
Hosted Items. Where an item has been maintained upon a trusted file hosting website under Rule 1108(8)(c), the chain includes the identity of the person who uploaded it, the time of upload, and evidence that the item at the address has not been replaced or modified.
Testing and Analysis. Where an item has been tested, analysed, or examined and the result is offered, the proponent shall establish the custody of the item from its seizure to the test and the identity of the item tested with the item seized. A break in that portion of the chain is governed by Rule 1109(3).
Proof of the Chain.
By Testimony. The chain may be proved by the testimony of each custodian, or by the testimony of one witness with knowledge of the records of custody kept in the ordinary course of the custodian’s duties.
By Record. The chain may be proved by a custody record, evidence log, inventory, or property receipt made in the ordinary course of duty, which is admissible under Rule 803(3) and, where it is an official record, under Rule 1005.
Every Custodian Need Not Testify. The proponent is not required to call every person who had custody of the item, provided the evidence accounts for the custody of the item throughout.
Stipulation and Waiver. The parties may stipulate to the chain of custody of an item, and the stipulation shall be stated in the proceeding communications or filed through the electronic filing system. An objection to the chain of custody which is not made when the item is offered is waived, except as Rule 103(5) provides in a criminal case.
Burden and Standard. The proponent bears the burden of establishing the chain of custody. The question is a preliminary one for the court under Rule 104(1), determined by a preponderance of the evidence. Where the court admits the item, the sufficiency of the chain remains open to the fact finder upon the weight to be given the item.
Failure to Preserve Custody. Where an item within the custody of a party, or of the State or an agency of the State, has been lost, destroyed, altered, or rendered untestable, Rule 1101 governs the sanction, and Rule 1104 governs the admissibility of evidence of the failure. The proponent may offer secondary evidence of the item under Rule 1004 where that rule permits.
Findings. The court shall state upon the record its ruling upon a chain of custody objection and the ground of that ruling, and shall state the respects, if any, in which it finds the chain deficient.