As I mentioned in a recent news roundup, earlier this month the Supreme Court of North Carolina decided State v. Ward. The basic holding of the case is that the visual identification of controlled substances is not reliable enough to be admitted in criminal trials, and that a chemical analysis of such substances is normally required in order to identify them. Earlier blog posts on this general subject are here, here, and here.
In thinking about Ward and talking about it with my colleagues and with lawyers across the state, a couple of topics have come up time and again. I thought I’d post about them.
1. Does Ward mean that the state must conduct a chemical analysis of every pill in, for example, a case involving 500 pills of ecstasy? No. In the words of the court, “A chemical analysis of each individual tablet is not necessary. The SBI maintains standard operating procedures for chemically analyzing batches of evidence, and the propriety of those procedures is not at issue here. A chemical analysis is required in this context, but its scope may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the batch of evidence under consideration.”
2. Does Ward apply to marijuana? I don’t know. Some of the language in the opinion is very broad. For example, “the burden is on the State to establish the identity of any alleged controlled substance that is the basis of the prosecution. Unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.” Slip Op. at 23 (emphasis added). And the court specifically referred to Schedule VI, the controlled substance schedule that includes marijuana and virtually nothing else, when it said that chemical definitions of drugs were present “throughout the lists of Schedule I through VI controlled substances.” Slip Op. at 15. On the other hand, (1) marijuana can be identified not just visually, but by smell also, arguably increasing the reliability of a non-chemical identification; (2) “marijuana” is listed in Schedule VI, but “marijuana” is not a chemical definition, meaning that part of the court’s rationale does not apply to marijuana; and (3) one of the reasons the court gave for requiring chemical analysis was the prevalence of counterfeit controlled substances, see Slip Op. at 18, but the Congressional hearings and FDA reports to which the court cited appear to concern counterfeit pharmaceuticals; counterfeit marijuana may be less prevalent or easier to distinguish from the real thing. All I can say for sure is that whether Ward effectively overrules State v. Fletcher, 92 N.C. App. 50 (1988) (approving visual identification of marijuana), will be hotly contested across the state in the coming months.
3. What does the court mean when it says chemical analysis is required “[u]nless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance?” Again, I don’t know. But at least two possibilities come to mind. First, the court might be leaving the door open to some alternative technology, like radiological identification of drugs, that may not properly be classified as a “chemical analysis.” (Perhaps someone with a science background could weigh in here?) Second, the court might have in mind situations where the defendant himself — or perhaps a customer who has consumed the defendant’s product — identifies the drugs in question. I assume that a stipulation to the identity of the drugs would also suffice.
If folks have other questions or comments about Ward, chime in.