Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Tuesday, April 1, 2014

Can a state decline to conduct chemical analysis in low-level marijuana cases but prosecute anyway?

The question in the title of this post came to mind when reading this Indiana appellate opinion (PDF), released yesterday.  

From the opinion, it appears that Indiana's police lab has a policy prohibiting testing of marijuana below a certain quantity.  I can only assume that the policy reflects the agency's belief that low level marijuana cases aren't important enough to be worth the laboratory's time.  

One might think that if the state doesn't think it's worth a few bucks to test the marijuana, it would feel the same way about spending even more money prosecuting the case.  But apparently, that isn't the case.  

It seems Indiana is happy to continue prosecuting low-level marijuana cases.  It just wants to do it on the cheap, without worrying about making sure that the substance at issue is actually, you know, marijuana.  

 

The court's decision focuses on whether the identity of a substance can be proven by a police officer's testimony alone (without chemical analysis).  The court finds that it can, a result that is not an outlier.  This rule might make sense at first blush.  After all, marijuana might seem to be pretty easy to identify.  But misidentification happens a lot more often that one might think (PDF).  Just last year, for example, some cops in New York mistook tomato plants for marijuana!  

Putting the merits of that debate to one side, Indiana's lab policy seems to take visual identification to a whole new level.  It's one thing to permit identification without chemical analysis when evidence is genuinely unavailable (for example, if an adult gives marijuana to a teen and the teen can identify the substance based on its effects.)  It seems to me quite another to permit the state simply forego testing of a substance it has in a whole category of cases because it costs too much.

Judge Pyle offered these thoughts, expressing some concern, in a concurrence:

In this case, the record reveals that the State sought to obtain a chemical analysis of the seized marijuana so that an expert could more conclusively identify it as such. The State was prevented from obtaining that analysis because  Indiana State Police laboratory policy prohibits the testing of marijuana below a certain quantity.

 

While Indiana Supreme Court precedent allows the State to avoid this roadblock by having a law enforcement officer identify marijuana based upon his or her training and experience, the laboratory's present policy prevents prosecutors, and deprives jurors, from considering expert testimony based on scientific principles used to identify marijuana. This is particularly important because the State is required to prove, beyond a reasonable doubt, that an item alleged to be marijuana actually is marijuana.

 

Additionally, jurors are instructed that proof beyond a reasonable doubt means that they be firmly convincedthat the item is marijuana. When an expert testifies that an item has been examined macroscopically, microscopically, subjected to color tests, thin layer chromatography, and gas chromatography, his or her testimony goes a long way toward identifying an item as marijuana, beyond a reasonable doubt. Thus, increasing public confidence in Indiana's criminal justice system.

 

The selection of the type of evidence to bring before a jury should, as much as possible, be unconstrained by administrative decisions, and jurors should be able to assume that the State endeavored to bring its best case to trial. There is likely a rational reason behind the laboratory's policy, but this type of administrative decision impacts prosecutors, defense counsel, judges, jurors, and defendants. For these reasons, I would respectfully submit that the laboratory's policy decision be reconsidered by our colleagues in the executive branch.

http://lawprofessors.typepad.com/marijuana_law/2014/04/can-a-state-decline-to-conduct-chemical-analysis-in-low-level-marijuana-cases-but-prosecute-anyway.html

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