Sometimes the crime is caught on video. When this happens, can an officer identify the perpetrator as the defendant? This issue came up in State v. Weldon, a recent court of appeals case. Let’s go through the rules. Continue reading
Tag Archives: identification
This post addresses three recurrent issues concerning eyewitness identification:
- When, if at all, is expert testimony about eyewitness identification admissible?
- When, if at all, is an indigent defendant entitled to funds with which to hire an expert on eyewitness identification?
- May jury instructions, rather than expert testimony, be used to inform the jury about factors relevant to the accuracy of an eyewitness identification?
Visual Identification of Drugs (Again)
The longest opinion issued by the court of appeals this week was Judge Ervin’s 45-page treatise in State v. Ward, __ N.C. App. __ (2009). Although the opinion contains other important material, I want to focus on the court’s holding that the method used by an SBI agent to identify certain prescription drugs was “not consistent with the general thrust of existing precedent concerning how controlled substances should be identified in criminal trials and . . . [was] not sufficiently reliable.”
The defendant in Ward sold what appeared to be prescription drugs to a police informant. A subsequent search of the defendant, his car, and his house turned up enough additional drugs to stock a pharmacy. He was charged with, and convicted of, a variety of drug offenses. Part of the state’s evidence at trial was the testimony of an SBI agent who testified as an expert in the fields of chemical analysis of drugs and forensic chemistry. He testified that “that he performed a chemical analysis or visual examination of the evidence seized from Defendant . . . [and that] these substances included Cocaine, Dihydrocodeinone (an opium derivative), Hydrocodone (an opium derivative), Oxycodone (an opium derivative), [and various other controlled substances].” He indicated that he identified some of the drugs based upon a chemical analysis, but that he “identified certain other substances on the basis of a visual examination of the size, shape, color of and markings on the tablets in question.” Specifically, the agent compared the appearance of the pills, including their pharmaceutical markings, to a reference work called Micromedics Literature, which he testified is “used by the doctors in hospitals and pharmacies to identify prescription medicine[s].”
On appeal, the defendant argued that the trial court erred in allowing this testimony, claiming that the method used by the agent to identify the drugs was not sufficiently reliable to satisfy the requirements of Rule 702 and State v. Goode, 341 N.C. 513 (1995). The court of appeals agreed. First, it addressed State v. Fletcher, 92 N.C. App. 50 (1988) (allowing a police officer to testify as an expert and to identify marijuana based on its appearance), discounting it as a pre-Goode case that was not focused on the reliability of the testimony at issue. The court then noted without comment that Fletcher was applied (post-Goode) to crack cocaine in State v. Freeman, 185 N.C. App. 408 (2007) (allowing a police officer to give his lay opinion that a particular substance was crack cocaine), before focussing on State v. Llamas-Hernandez, 363 N.C. 8 (2009), reversing for reasons stated in dissenting opinion, 189 N.C. App. 640 (2008), a case discussed at length in this prior blog post.
Llamas-Hernandez held that two police officers should not have been allowed to give lay opinion testimony to the effect that a white powder seized during an investigation was cocaine. The court noted that powder cocaine does not possess unique visual characteristics; that the General Assembly adopted “a technical, scientific definition of cocaine,” suggesting the need for scientific testimony to identify it; and that the General Assembly provided a statutory procedure for the admission of lab reports regarding controlled substances, perhaps suggesting that laboratory analysis is required. Because Llamas-Hernandez did not overrule Freeman and Fletcher, the scope of the ruling was somewhat unclear: was it limited to powder cocaine, or did its reasoning sweep more broadly?
Ward applied Llamas-Hernandez to prescription drugs, stating that “existing precedent suggests that controlled substances defined in terms of their chemical composition can only be identified through the use of a chemical analysis rather than through the use of lay testimony based on visual inspection.” It also noted that the agent had received no special training in identifying prescription drugs, and that there was little reason to believe that the agent could reliably distinguish between genuine and counterfeit prescription drugs, which the court, based on World Health Organization data, believed to be widespread. Thus, it concluded that the agent’s testimony was insufficiently reliable to be admissible.
A few minutes’ worth of research suggests that most other jurisdictions have come out on the other side of this issue. See, e.g., State v. Clark, 198 P.3d 809 (Mont. 2008) (allowing pharmacist to testify to the identity of prescription medications “by comparing the unique imprint code on each pill, along with the color, make, and shape of the pills, with two national peer-reviewed computer databases”); State v. Carter, 981 So.2d 734 (La. Ct. App. 2008) (finding sufficient evidence to support a conviction where “an expert in forensic chemistry . . . testified that the green pills found by police contained hydrocodone. The pills were identified via visual inspection and comparison with pictures in a book.”); State v. Ohlin, 2007 WL 4106274 (Minn. Ct. App. Nov. 20, 2007) (unpublished) (“[A] forensic scientist . . . inspected the pills and identified them from their markings as containing a controlled substance. There is nothing in the record to contradict this expert testimony or to support a plausible inference that the pills contained anything different from what their markings showed. Nor has [the defendant] shown why it would be improper for an expert witness to rely on pill markings, in lieu of testing, to determine the presence of a controlled substance in a pill found in a prescription bottle and not packaged for sale.”). Of course, that doesn’t show that Ward was wrongly decided, but it does suggest that this area remains controversial. Perhaps the state supreme court will weigh in and clarify the reach of Llamas-Hernandez. Stay tuned for further developments.
An interesting article appeared yesterday in the New York Times. You can read it here, but the gist of it is that the federal government and about 15 states are now collecting DNA from people who are charged with certain crimes, usually felonies, even if the individuals are not convicted. As the article observes, this raises some interesting legal questions, including whether the routine seizure of DNA from defendants who are not convicted violates the Fourth Amendment. There’s a Congressional Research Service report on this issue, available here, which concludes as follows:
This expansion is likely to alter the Fourth Amendment analysis in DNA collection cases. In cases upholding DNA collection laws, courts relied in part on the reduction in privacy rights that accompanies post-conviction punishment under Fourth Amendment precedent. For people whom the government has arrested but not yet convicted, it appears that this reduction in privacy rights either does not apply or applies to a lesser extent.
North Carolina law currently provides for the routine collection of DNA only of convicted defendants. See G.S. 15A-266.4 (providing for the collection of DNA upon conviction of any felony, assault on a handicapped person, stalking, or sexual battery). As far as I can tell, the statute has never been challenged, and challenges to similar statutes in other jurisdictions have generally been rejected. Courts uphold DNA collection from convicted defendants either on a “special needs” rationale or on a Terry-esque theory that the minimal intrusion of a blood draw is justified by the substantial benefit to law enforcement in maintaining a DNA database. See Wayne R. LaFave, Search and Seizure, s. 5.4(c) (4th ed. 2004).
Soon, however, North Carolina may jump on the bandwagon of collecting DNA from people who are charged but not convicted. HB 1403 would require the collection of a DNA sample upon arrest; you can see the current version of the bill here. (While we’re on the subject of DNA and the General Assembly, HB 1190 would alter the rules for retaining and preserving DNA and other biological evidence; it makes some substantial changes and clarifications and is probably worth a gander, especially as it has bipartisan sponsorship. You can see it here.)
This sets up a possible Fourth Amendment showdown, but the conclusion of the Congressional Research Service isn’t the only plausible view. Consider the fact that North Carolina, like many other states, permits the collection of other identifying information from people who have been charged but not convicted. For example, G.S. 15A-502 provides that any arrestee may be fingerprinted and photographed, even if arrested for a misdemeanor, regardless of the disposition of the case. And it requires that defendants who are charged with felonies shall be photographed and fingerprinted, again, regardless of disposition. I’m not aware of any great controversy about fingerprinting, and I can imagine a court concluding that taking DNA (or “genetic fingerprinting) isn’t really any different.
What do you think? Leave a comment to weigh in.