Thursday, June 11, 2009
Lay Witnesses Under The Influence: Supreme Court Of Delaware Finds Lay Witness Properly Rendered Testimony Identifying Methamphetamine
If [a] witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.
In Campbell v. State, 2009 WL 1463460 (Del.Supr. 2009), the Supreme Court of Delaware had to address the issue of whether a habitual drug user could offer lay opinion testimony identifying a substance that he purchased from the defendant as methamphetamine. And, following the lead of several other courts, the court found that he could.
the Delaware State Police (DSP) set up a wiretap on Raul Morales' phone as part of a drug investigation. DSP also placed a GPS tracker on Morales' car and set up surveillance on him. During the investigation, DSP determined that Charles Campbell was supplying methamphetamine to Morales who in turn sold it to two purchasers, Michael Kanich (a/k/a Hippie) and Billie Gillespie.
As a result, Campbell was charged and later convicted of Trafficking in Methamphetamine and Delivery of Methamphetmaine. Because the DSP never actually seized any of the drugs Campbell allegedly sold, the prosecution had to rely upon the testimony of Kanich in securing Campbell's conviction. According to Kanich he was given a drug from Morales/Campbell, and, when he swallowed it, he experienced the same effects as he had experienced over his 15 to 20 years of methamphetamine use.
After Campbell was convicted, he appealed, claiming that only an expert witness could have testified that the substance sold to Kanich was methamphetamine. The Supreme Court of Delaware, however, affirmed, relying primarily upon its prior opinion in Wright v. State, 953 A.2d 188 (Del. 2008). In Wright,
Raheem Cannon supplied cocaine to [the defendant] Wright. Cannon testified that the substance he sold to Wright, and which Wright later sold in the transaction for which he was charged with delivery of cocaine, was in fact cocaine. Cannon testified that he had been selling cocaine on a daily basis for about two years, and that, although he never used cocaine, he knew that the substance he placed in a small baggie and gave to Wright was cocaine because "[i]f you deal with it every day, you can just tell from the texture and the smell and just the look of it." Cannon testified that he had received the cocaine from someone else and divided it into smaller portions, which he put in plastic baggies. He testified that the cocaine was a mixture of powder and chunks and had a "fuelly smell" like gasoline. He also testified that no one had ever complained that he had sold fake cocaine. The police never recovered any cocaine in that case. [The Supreme Court of Delaware] found that the dealer's description and familiarity with the substance was sufficient evidence, beyond Wright's confession that he sold cocaine, to satisfy the corpus deliciti rule.
The Court also noted that at least three federal appellate courts have also allowed lay opinion testimony identifying drugs under Federal Rule of Evidence 701. For instance, in United States v. Paiva, 892 F.2d 148 (1st Cir. 1989), the First Circuit found that "[a]lthough a drug user may not qualify as an expert, he or she may still be competent, based on past experience or personal knowledge and observation, to express an opinion as a lay witness that a particular substance perceived was cocaine or some other drug." Indeed, I am not aware of any courts deeming lay opinion testimony identifying drugs inadmissible as a general proposition although I am sure that there are some cases I am missing.