Massachusetts Drug Identificaton

In any drug case the primary element of the charge is whether the drug in question is in fact an illegal controlled substance. To prove this fact in Massachusetts, prosecutors have routinely relied on a certified drug certificate prepared by a state chemist.

In the Supreme Court case of Melendez Diaz v. Massachusetts, 129 S.CT. 2527 (2009), the defendant challenged the use of a certified drug certificate to prove that a substance was illegal. The defendant asserted, and the Supreme Court agreed, that the defendant had the right to confront his witnesses ( 6th Amendment - US Constitution); that is, the chemist who did the analysis.

This case caused a fury among prosecutors who scrambled to get chemists to testify in all drug cases. A state chemist handles hundreds of cases per year and he or she could never be expected to testify in every case. Prosecutors had to pick and choose which priority case warranted a chemist or had to find alternative approaches to proving that a substance is illegal without calling the chemist to testify.

A number of cases have been presented to the Supreme Judicial Court and to the Appeals Court in Massachusetts where chemist did not testify, but the trial judge permitted other evidence to be used to identify the drug. In the recent Supreme Judicial Court case of Commonwealth v. King, (2012) the court explained why the prosecutors failed to identify a substance as an illegally controlled substance. By explaining why the prosecutor failed to prove their case, the court inferred what may have worked. The following factors might be used in the future by prosecutors:

  1. Qualifying the arresting officer as a narcotics expert- The courts expect that the testifying officer be qualified in narcotics investigations and narcotics identification. All his training and experience should be presented to the court. A basic officer with simple police Academy experience may not be sufficient.
  2. Field testing of the drug- The officer should conduct a field test on the controlled substance. The type of test conducted must be explained, it must be proven reliable, the officer must have training in conducting the test and he must have knowledge in reading the test result.
  3. Behavior of the defendant. A defendant's behavior may also be used to verify that the defendant appeared to be under the influence of an illegal substance; the same substance the officer found and with which the defendant is charged. Drug Recognition Officers are trained in the area of detecting the type of drug that a defendant may have ingested. That officer should examine the defendant and should be brought to court to testify about his observations.
  4. Marijuana- Marijuana is commonly recognized by its green leafy substance and its distinct odor. Many trial judges have accepted the testimony of most police officers who identify a substance as marijuana. An officer's training at the Police Academy may be sufficient.

As these standards and factors develop with future court cases, defense attorneys will have to develop cross-examination techniques to counter all of the above factors. Most experienced drug attorneys already know how to challenge the tests and challenge Drug Recognition Experts. Any defendant charged with a drug offense should consult an attorney with experience in handling drug cases.