While scanning the Indiana Law Blog (www.indianalawblog.com) on July 13, 2016 I saw reference (and a link) to Sunday’s NYT Magazine and an article therein titled “How a $2 Roadside Drug Test Sends Innocent People to Jail.” The point of the article is that these “kit” tests (where, for instance, a blue precipitate is taken as evidence of cocaine) are unreliable for reasons including false positives and police errors in following the directions. My view is that such field testing is useful for establishing probable cause (for an arrest or for a search warrant) but has no place in a trial. Unfortunately, Indiana case law has been known to show undue tolerance of “field test” evidence.
Before addressing the admission of “field test” evidence in a trial, it should be noted that there is a history in Indiana of errors in protocol and in results in the State Department of Toxicology lab. An audit (made public in 2011) of the lab’s marijuana tests found an 8.2% error rate. It seems that defendants and their lawyers were the last to learn of the damning audit. Published reports pertaining to the audit are referenced (again) in the Indiana Law Blog (archives) between March 31, 2011 and April 5, 2011.
As for case law on admission of “field test” evidence, let’s start with Eckstein v. State, 526 N.E.2d 693 (Ind. 1988). Therein the SCOTSI unanimously held that results of a field test for marijuana were admissible at trial even though the officer was unable to testify concerning the foundational science of the test. This holding has not been overturned, though I would regard it as blatantly inconsistent with post-Daubert standards and Indiana Rule of Evidence 702. To be fair, I should mention that the Indiana Rules of Evidence were adopted in 1994, the year following Daubert v. Merrell Dow Pharm., 113 S.Ct. 2786 (1993). I remain amazed and disappointed that my Indiana Supreme Court could issue such an unenlightened Opinion in 1988.
My second case (of three) is Meister v. State, 864 N.E.2d 1137 (Ind.Ct.App. 2007). Meister was a civil forfeiture case (of a motor vehicle) and not a criminal prosecution. At the forfeiture trial there was an admission (over objection) of “field test” evidence of methamphetamine (from the vehicle) authorizing the forfeiture. Following a denial of Transfer, the United States Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration of the vehicle search in light of Arizona v. Gant, 129 S.Ct. 1710 (2009). Without reconsidering the error of admission of a field test, the COA and then the SCOTSI affirmed the civil forfeiture. See Meister v. State, 933 N.E.2d 875 (Ind. 2010).
The third and last case is Doolin v. State, 970 N.E.2d 785 (Ind.Ct.App. 2012), in which there had been no “scientific” testing of the suspected marijuana prior to trial. That deficit was remedied when the state conducted (over objection) a “field test” at trial. The COA found “harmless” error in the “field test” demonstration without a Daubert foundation to establish reliability.
It is the official position of the CLB that Eckstein and Meister were wrongly decided. It is also the official position of the CLB that no State Laboratory witness should ever be given a pass while testifying to laboratory analysis of suspected drugs.
When the witness from the State Police Lab or Department of Toxicology testifies for the State, defense counsel should challenge everything. Ask what happens when a test result is anomalous. The truth is likely that the test is repeated until the expected result is achieved. Ask what record is then made of the contrary or ambiguous test result. The truth is likely that no record is made. When the witness testifies to the perfection of the test equipment, techs, and scientific theories, ask about phrenology and microscopic hair sample comparison, both practices which were once generally accepted in law enforcement but later discredited and abandoned. Ask about the error rate in the Department of Toxicology publicized in 2011. Ask the witness about Massachusetts chemist Annie Dookham who was sentenced in 2012 for falsifying thousands of drug test samples. Learn something about the testing devices and challenge the witness as to any subjectivity in interpreting the results. Try (if you like) my own theory that a typical lab tech with a bachelor’s degree in chemistry lacks the knowledge or expertise about the testing devices and relevant scientific theories to lay an ER 702(b)/Daubert foundation for reliability.
Addendum for evidence nerds. There was a case in which a child molesting defendant sought to impeach the victim’s account (that she was plied with marijuana) by introducing evidence of a negative drug screen urine test administered by a probation officer and completed by an out-of-state lab. The evidence was excluded, and the defendant was convicted of molestation. On the defendant’s unsuccessful appeal, the State argued successfully that its own drug screen was inadmissible under ER 702(b). The State should be held to the standard it espoused in Barnhart v. State, 15 N.E.3d 138 (Ind.Ct.App. 2014).
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