North Carolina § 8-58 - 20. Forensic analysis admissible as evidence.

§ 8-58. 20. Forensic analysis admissible as evidence.

In any criminal prosecution, a laboratory report of a written forensic analysis, including an analysis of the defendant's DNA, or a forensic sample alleged to be the defendant's DNA, as that term is defined in G.S. 15A-266.2(2), that states the results of the analysis and that is signed and sworn to by the person performing the analysis may be admissible in evidence without the testimony of the analyst who prepared the report in accordance with the requirements of this section. A forensic analysis, to be admissible under this section, shall be performed by a laboratory that is accredited by an accrediting body that requires conformance to forensic specific requirements and which is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement For Testing for the submission, identification, analysis, and storage of forensic analyses. The analyses of DNA samples and typing results of DNA samples shall be performed by a laboratory that is accredited by an accrediting body that requires conformance to forensic specific requirements and which is a signatory to the ILAC Mutual Recognition Arrangement For Testing. The analyst who analyzes the forensic sample and signs the report shall complete an affidavit on a form developed by the State Crime Laboratory. In the affidavit, the analyst shall state (i) that the person is qualified by education, training, and experience to perform the analysis, (ii) the name and location of the laboratory where the analysis was performed, and (iii) that performing the analysis is part of that person's regular duties. The analyst shall also aver in the affidavit that the tests were performed pursuant to the accrediting body's standards for that discipline and that the evidence was handled in accordance with established and accepted procedures while in the custody of the laboratory. The affidavit shall be sufficient to constitute prima facie evidence regarding the person's qualifications. The analyst shall attach the affidavit to the laboratory report and shall provide the affidavit to the investigating officer and the district attorney in the prosecutorial district in which the criminal charges are pending. An affidavit by a forensic analyst sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in any criminal proceeding with respect to the forensic analysis administered and the procedures followed. The district attorney shall serve a copy of the laboratory report and affidavit and indicate whether the report and affidavit will be offered as evidence at any proceeding against the defendant on the attorney of record for the defendant, or on the defendant if that person has no attorney, no later than five business days after receiving the report and affidavit, or 30 business days before any proceeding in which the report may be used against the defendant, whichever occurs first. Upon receipt of a copy of the laboratory report and affidavit, the attorney of record for the defendant or the defendant if that person has no attorney, shall have 15 business days to file a written objection to the use of the laboratory report and affidavit at any proceeding against the defendant. The written objection shall be filed with the court in which the matter is pending with a copy provided to the district attorney. If the defendant's attorney of record, or the defendant if that person has no attorney, fails to file a written objection with the court to the use of the laboratory report and affidavit within the time allowed by this section, then the objection shall be deemed waived and the laboratory report and affidavit shall be admitted in evidence in any proceeding without the testimony of the analyst subject to the presiding judge ruling otherwise at the proceeding when offered. If, however, a written objection is filed, this section does not apply and the admissibility of the evidence shall be determined and governed by the appropriate rules of evidence. Procedure for Establishing Chain of Custody of Evidence Subject to Forensic Analysis Without Calling Unnecessary Witnesses. - For the purpose of establishing the chain of physical custody or control of evidence that has been subjected to forensic analysis performed as provided in subsection (b) of this section, a statement signed by each successive person in the chain of custody 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. 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. The statement may be placed on the same document as the report provided for in subsection (a) of this section. The provisions of this subsection may be utilized by the State only if (i) the State notifies the defendant at least 15 business days before any proceeding at which the statement would be used of its intention to introduce the statement into evidence under this subsection and provides the defendant with a copy of the statement and (ii) the defendant fails to file a written notification with the court, with a copy to the State, at least five business days before the proceeding that the defendant objects to the introduction of the statement into evidence. In lieu of the notice required in subdivision (3) of this subsection, the State may include the statement with the laboratory report and affidavit, as provided in subsection (d) of this section. If the defendant's attorney of record, or the defendant if that person has no attorney, fails to file the written objection as provided in this subsection, then the objection shall be deemed waived and the statement shall be admitted into evidence without the necessity of a personal appearance by the person signing the statement. Upon filing a timely objection, the admissibility of the statement shall be determined and governed by the appropriate rules of evidence. This section does not apply to chemical analyses under G.S. 20-139.1. Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the statement. History (2004-124, s. 15.2(c); 2007-484, s. 1; 2009-473, s. 7; 2011-19, s. 7; 2011-307, s. 9; 2012-168, s. 6; 2013-171, ss. 2, 3; 2013-194, s. 2; 2013-338, s. 1; 2014-100, s. 17.1(u); 2015-173, s. 1.) Cross References. - As to the North Carolina State Crime Laboratory Ombudsman, see G. S. 114-62. Editor's Note. - Session Laws 2005-276, s. 15.7(c), as amended by Session Laws 2011-19, s. 5, provides: "Except as provided otherwise by this subsection, the Department of Justice shall hire only nonsworn personnel to fill vacant positions in the North Carolina State Crime Laboratory. A position may be filled with a sworn agent in any of the following circumstances: (i) the position is a promotion for a sworn agent who was employed at the State Crime Laboratory prior to July 1, 2005, (ii) the position is a forensic drug chemist position that has as a primary duty 'responding to clandestine methamphetamine laboratories,' or (iii) the position is a forensic impressions analyst position that has as a primary duty 'responding to clandestine methamphetamine laboratories.'" Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005'." Session Laws 2005-276, s. 46.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium." Session Laws 2005-276, s. 46.5 is a severability clause. Session Laws 2011-19, s. 1, provides: "This act shall be known as 'The Forensic Sciences Act of 2011.'" Session Laws 2011-19, s. 3, provides: "The State Bureau of Investigation (SBI) shall encourage and seek collaborative opportunities and grant funds for research programs, in association, whenever possible, with the university system or independent nationally recognized forensic institutions, on human observer bias and sources of human error in forensic examinations. Such programs might include studies to determine the effects of contextual bias in forensic practice (e.g., studies to determine whether and to what extent the results of forensic analysis are influenced by knowledge regarding the background of the suspect and the investigator's theory of the case). In addition, research on sources of human error should be closely linked with research conducted to quantify and characterize the amount of error. Based on the results of these studies, and in consultation with the North Carolina Forensic Sciences Advisory Board, the North Carolina State Crime Laboratory should develop standard operating procedures (that will lay the foundation for model protocols) to minimize, to the extent possible, potential bias and sources of human error in forensic science. These standard operating procedures should apply to all forensic analyses that may be used in litigation." Session Laws 2011-19, s. 4, as amended by Session Laws 2011-307, s. 8, and as amended by Session Laws 2012-168, s. 6.1, provides: "Forensic Scientists I, II, and III, forensic science supervisors, and forensic scientist managers at the State Crime Laboratory shall be required to obtain individual certification consistent with international and ISO standards within 18 months of the date the scientist becomes eligible to seek certification according to the standards of the certifying entity or by January 1, 2013, or as soon as practicable after that date unless no certification is available. All such forensic scientists shall have access to the certification process." Session Laws 2011-19, s. 11, as amended by Session Laws 2011-307, s. 9, as amended by Session Laws 2012-168, s. 6, and as amended by Session Laws 2013-338, s. 1, provides: "Sections 1 through 5 and Sections 9 through 11 are effective when this act becomes law [March 31, 2011], and Section 6 becomes effective July 1, 2011. Sections 7 and 8 of this act are effective when they become law; however, until July 1, 2016, the provisions of those sections shall apply only to the North Carolina State Crime Laboratory, and on or after July 1, 2016, the provisions of Sections 7 and 8 shall apply to all laboratories conducting forensic or chemical analysis for admission in the courts of this State. Nothing in this act is intended to amend or modify either the statutory or common law applicable to discovery in criminal cases which was applicable prior to the effective date of this act. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions." Effect of Amendments. - Session Laws 2007-484, s. 1, effective August 30, 2007, in subsection (b), substituted "accredited" for "certified," substituted "Directors/Laboratory Accreditation Board (ASCLD/LAB)" for "Directors (ASCLD)," and substituted "ASCLD/LAB-accredited" for "ASCLD-certified"; and substituted "ASCLD/LAB" for "ASCLD" in subsection (c). Session Laws 2009-473, ss. 1 and 2, effective October 1, 2009, and applicable to offenses committed on or after that date, in subsection (d), inserted "and indicate whether the report and affidavit will be offered as evidence at any proceeding against the defendant" near the middle; and added subsection (g). Session Laws 2011-19, s. 7, rewrote subsection (b); and substituted "accrediting body's standards" for "ASCLD/LAB standards" in the third sentence of subsection (c). For effective date and applicability, see editor's note. Session Laws 2013-171, s. 2, effective December 1, 2013, substituted "shall be admitted" for "may be admitted" in subsection (f) and subdivision (g)(5). For applicability, see editor's note. Session Laws 2013-194, s. 2, effective June 26, 2013, added subsection (h). Session Laws 2014-100, s. 17.1(u), effective July 1, 2014, substituted "State Crime Laboratory" for "State Bureau of Investigation" in the first sentence of subsection (c). Session Laws 2015-173, s. 1, effective July 31, 2015, and applicable to notices of intent to introduce a statement or report provided by the State on or after that date, inserted "the objection shall be deemed waived and" in subsection (f) and subdivision (g)(5). Legal Periodicals. - For article, "Another 'Straightforward Application': The Impact of Melendez-Diaz on Forensic Testing and Expert Testimony in Controlled Substance Cases," see 33 Campbell L. Rev. 1 (2010). For comment, "Corrosion of the Confrontation Clause in North Carolina: A Comparison of State v. Brewington and State v. Ortiz-Zape with State v. Craven," see 36 N.C. Cent. L. Rev. 295 (2014).