chain of custody

Chain of Custody Rule in Drug Cases

One of the most common defenses in the criminal prosecution of drug cases under the Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165) is the failure of the prosecution to establish the “chain of custody”. The law prescribes a strict procedure for handling object evidence, particularly the custody of confiscated dangerous drugs by law enforcement agencies and by the courts. Non-compliance with the said procedure renders the evidence non-admissible, resulting in the eventual acquittal of the accused if there is no other sufficient evidence to convict him.

Suppose a person is arrested pursuant to an entrapment operation effected by the police for the apprehension of drug traffickers. In the course of the arrest, it is a standard operating procedure for the law enforcement officer to confiscate the illegal drugs obtained in the crime scene.

Section 21 of R.A. No. 9165 directs the apprehending team having initial custody and control of the drugs to immediately undertake a physical inventory of the confiscated drugs, and to take photographs of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel. The law also requires a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory.

Within 24 hours upon confiscation of dangerous drugs, these must be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination. The forensic laboratory examiner must then make a certification of the forensic laboratory examination results. The said certification must be issued within 24 hours after the receipt of the subject item/s.

What if the confiscated drugs are so numerous as to render it impossible to conduct an examination within 24 hours from confiscation? In this case, a partial laboratory examination report shall be provisionally issued stating the quantities of dangerous drugs still to be examined by the forensic laboratory. However, a final certification must be issued on the completed forensic laboratory examination within the next 24 hours. In other words, the law only allows an extension period of 24 hours.

While the PDEA has custody of the confiscated drugs, the police agents file the complaint with the prosecutor, who in turn files the criminal Information in court. Seventy-two (72) hours after filing, the court must conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs. Within 24 hours thereafter, the PDEA shall then proceed with the destruction or burning of the confiscated drugs, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official.

The PDEA Board afterward issues a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA. The sworn certification must be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board.

During trial, the prosecution has the burden of proving the chain of custody — i.e., the prosecutor must prove that the sample of drugs being presented into evidence forms part of the inventory of drugs at the time and place of confiscation. Moreover, the prosecutor must prove that the said drugs which are being presented into evidence are the same substances taken from the possession of the accused.

If there are substantial gaps in the testimony of witnesses on the chain of custody of the seized dangerous drugs, these raise doubts about the authenticity of the evidence presented in court, and therefore the accused cannot be convicted beyond reasonable doubt.

Respicio & Co. specializes in criminal law and defense of persons accused of drug-related offenses.