More than 800,000 people are arrested on marijuana charges each year in the United States, many on the basis of an error-prone test.
In 2008, Senator Jim Webb, D-VA, said, in announcing a proposed bill, that “the criminal justice system as we understand it today is broken, unfair.” This unfairness is visible every day in the disparate and contradictory court decisions regarding the admissibility of D-L test results. Not only have courts contradicted one another on admissibility, but some courts have even chosen to admit the results of a D-L test while ruling that it does not prove the presence of marijuana beyond a reasonable doubt. This patchwork of admissibility means that a person in one state can be convicted of possessing marijuana on the sole basis of the D-L test while a resident of another state cannot.
In June 2006, the Virginia legislature went so far as to pass “emergency regulations” permitting law-enforcement officers to testify at trial for simple possession of marijuana cases solely on the basis of a D-L field test. Prior to these regulations, officers had to send suspected material to an approved lab for testing. Nothing in the new legislation specified that the field tests used had to be specific, or even accurate. Frederic Whitehurst, a North Carolina-based defense attorney and former FBI special agent with a doctorate in chemistry, considers the law to be an unconstitutional usurpation of the authority of the courts to determine what test results can be admitted as valid evidence.
The trend toward police officers using the D-L as a confirmatory test has been encouraged by the National Institute of Justice, an agency of the Department of Justice which has funded programs to transform police officers into court experts, based on their use of these faulty field tests. One such ongoing program for the Utah police claims to offer, in four days, “the necessary training” to positively identify marijuana, which would allow officers to serve as “expert witnesses in the courtroom setting.” The program briefly covers the “botany, chemistry and analysis of marijuana preparations,” after which police officers, including street detectives and crime scene lab personnel, “will assume responsibility for all of their agency’s marijuana submissions.” By the end of 2005, such submissions became the exclusive provenance of the Utah officers who had attended the training, and suspected marijuana samples were no longer accepted at the state lab for processing.
In 2009, the Georgia Bureau of Investigation trained more than 1,600 police officers in the use of the D-L test, resulting in a 98 percent reduction in the use of marijuana lab tests. This troubling program garnered the bureau a 2009 Vollmer Excellence in Forensic Science Award by the International Association of Chiefs of Police.
In 2008, Whitehurst, the chemist and former FBI agent, substantiated Kurzman’s findings in an article in the Texas Tech Law Review. That same year, Dr. Omar Bagasra, director of the South Carolina Center for Biotechnology, conducted experiments in his lab also demonstrating that the D-L test is nonspecific and renders false positives. Bagasra, too, has impeccable credentials — he’s a leading pathologist and a board-certified forensic examiner.
As noted, even the test’s manufacturers do not claim that their product can definitively identify marijuana. The literature accompanying NIK’s NarcoPouch 908 cautions, “The results of a single test may or may not yield a valid result… There is no existing chemical reagent system, adaptable to field use, that will completely eliminate the occurrence of an occasional invalid test results. A complete forensic laboratory would be required to qualitatively identify an unknown suspect substance.”
In truth, everyone arrested on marijuana charges has a Constitutional right to a GC/MS analysis. Otherwise, they are being denied both due process and a fair trial. “It is not only unnecessary for the courts to continue to accept conclusory drug identifications based on nonspecific tests, it is also unwise for them to do so,” wrote Edward Imwinkelried, a professor of law at the University of California at Davis whose work on scientific evidence has been cited by the Supreme Court. “Conclusory drug identification testimony is antithetical and offensive to the scientific tradition, and courts should not allow ipse dixit to masquerade as scientific testimony… Even more importantly, sustaining such drug identifications places a judicial imprimatur on testimony that cannot justifiably be labeled scientific. The rejection of such identifications is necessitated not only by due process but also by the simple demands of intellectual honesty.”
Sustaining evidence from nonspecific tests like the D-L, he concludes, “is both bad science and bad law.”
Link:
http://www.alternet.org/story/147613/has_the_most_common_marijuana_test_resulted_in_tens_of_thousands_of_wrongful_convictions