In 2009, the United States Supreme Court ruled in Melendez-Diaz v. Massachusetts that the prosecution could not prove the identity of an unknown substance with a certified lab document and needed to call the chemist who did the analysis at trial. Since then expert witnesses must be called in even the most basic district court drug cases. I not only have extensive experience handling expert witnesses, but I also lecture extensively to lawyers teaching them what to do when facing a drug chemist or other types of expert witnesses. I have lectured for the Committee for Public Counsel Services, Massachusetts Continuing Legal Education, Middlesex Defense Attorneys, and the Greater Lowell Bar Association on confronting drug chemists at trial. When lawyers across the state have questions about their drug cases, they call me. I invite you to do the same.
When Melendez-Diaz first came out, one may have been led to believe that the intended consequence of the opinion was to improve the quality of evidence presented at drug prosecutions. If the chemist is effectively crossed, the jury is in a better position to determine whether the prosecution has proven its case beyond a reasonable doubt. The unintended consequence of the decision is that prosecutors and complicit judges are now trying to prove their cases with weaker evidence than they ever did before Melendez-Diaz. Instead of introducing a “drug cert,” which they can no longer do without a witness from the state lab, prosecutors are relying on so-called visual identification of suspected drugs by visually gifted police officers and/or field testing of the substances. These methods are troubling when presented as proof beyond a reasonable doubt and must be challenged aggressively pre-trial.
Visual Identification of Suspected Drugs
Police officers are routinely being called to take the stand to state that based on his training and experience, he knows that the white powder in question is cocaine. When I am given notice that the Commonwealth intends to present this ridiculous so-called expertise at trial, I demand the officer’s resume, training on drug identification, police protocols on drug identification, and insist on a full hearing to challenge the admissibility of this testimony. This is not a genuine expertise and too many lawyers shrug their shoulders and let the prosecution get away with proving their cases with this unreliable method of drug identification. Completing a non-descript 40 hour course with the DEA does not give an officer the superhuman ability to identify drugs just by looking at them. It does not eliminate the possibility that the powder or plant in question is a counterfeit. I have lectured extensively on how to confront and keep out evidence of visual identification of drugs and am prepared to do so for your case.
Consistent packaging and price are not probative of the substance being cocaine because counterfeit drugs would also look like cocaine, be packaged like cocaine, and be sold for the same street price as cocaine. When Mr. Melendez-Diaz’s case was remanded following his US Supreme Court victory to determine whether the error in admitting the certs was harmless or required reversal, the appeals court wrote that “[m]uch testimony was directed at estimating the street selling prices of the packages. While some of the testimony relied directly on the $320 (found after the codefendants had been taken from the cruiser) as the likely price paid for the four packages seized from Wright, the selling price of cocaine is irrelevant to prove that the substances were cocaine. The defendant cites G. L. c. 94C, § 32G, penalizing the distribution of counterfeit substances as indicating that counterfeit substances are being distributed. It appears likely that only laboratory analysis would determine whether a substance is counterfeit.” Commonwealth v. Melendez-Diaz, 76 Mass. App. Ct. 229, 234 ft. 3 (2010)
Instead of calling a chemist to testify at trial about the identity of a suspected controlled substance, prosecutors often rely on police officers to testify about “positive results” of field testing. Field tests are not designed for, or capable of, identifying an unknown substance. A color test reagent, such as the NarcoPouch kit which is used by many departments in Massachusetts, is nothing more than a preliminary screen that notifies law enforcement of a need for further testing by a chemist in a forensic laboratory. Not only has the National Academy of Science cautioned against the use of field tests alone to prove the identity of a suspected drug in its report, Forensic Science in the United States: A Path Forward , the product insert that comes with the NarcoPouch kit explains that it is a preliminary screen that requires follow-up testing. I have lectured extensively on keeping Field Test evidence out of evidence at trial because it is unreliable and will do so at your trial.
Confronting Police Experts in Drug Cases
The most common prosecution expert witness is the police officer. They are routinely permitted to testify to opinions and conclusions derived from their on the job experience and personal observations. Prosecutors rely on police expert witnesses most frequently in drug cases. In trafficking and distribution cases, these officers may be called to interpret ambiguous behavior as consistent with drug dealing, or that ambiguous words or phrases used by a suspected dealer and co-conspirators are evidence of a drug transaction. In possession with intent to distribute cases, these officers may be called to testify that a quantity of drugs found on the defendant, and the manner in which it is packaged, is not consistent with personal use. The officer will testify that he bases his knowledge on conversations with drug addicts. These conversations are undocumented and therefore very difficult to rebut. Often the testimony can get silly. For example, an officer may suggest that based on his training and experience, drug dealers hold their money in elastic bands. And sure enough the defendant on trial happened to have $106 rolled in an elastic band. It is essential to hire a lawyer who knows the rules about expert witnesses and will keep this type of testimony from being offered at trial through hard-fought motion practice. Too many lawyers let this improper testimony in because it never occurred to them to challenge it. I have lectured to many audiences of practicing lawyers about the danger of this so-called expertise and how to keep it out of evidence.
Contact me today for a free consultation, and to see why I am the attorney that will go the extra mile in your case.