OCME Toxicology Lab Procedures available

The IDS Forensic website has posted the toxicology lab procedures from the NC Office of the Chief Medical Examiner here. Attorneys who would like to learn more about the procedures that the OCME toxicology lab uses to test evidence can read through the procedures.

For casework, attorneys should obtain the lab procedures that were in effect at the time that the evidence in their case was worked. Those procedures can be requested through discovery. The information posted on the IDS Forensic website should be used for general information purposes only and to give attorneys an idea of what procedures are available.

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Are you a gun nut?

If you are a criminal defense attorney working on serious felony cases, you need to have a good understanding of firearm function so that you can make sense of the forensic evidence in your case. The tutorials described below can help you gain the information that you need.

The University of Utah Health Sciences Library has several firearms tutorials posted which cover information about the different types of firearms and how they work, ballistics (the science of the travel or a projectile in flight), patterns of tissue injury, laboratory methods, and examination of gunshot residue.

The tutorials provide basic information, kind of like Firearms 101, as well as more technical information about trajectory, examination of firearms, and injuries caused by firearms.

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Hemp or Marijuana?

Your client is charged with possession of marijuana. They tell you they possessed hemp – not marijuana. Industrial hemp is not visually distinguishable from illicit marijuana. Is that a defense? I would say yes, if your client is a licensed industrial hemp farmer growing industrial hemp in compliance with all regulations. But, if your client is not a licensed grower, the argument is less straightforward.

Cultivation of industrial hemp is now permitted as part of a pilot program in North Carolina. The program is permitted under federal law. The N.C. General Assembly enacted statutes governing industrial hemp and the N.C. Industrial Hemp Commission develops rules for the industry.

Marijuana and industrial hemp are different varieties of the same plant species, Cannabis sativa L. The two species are identical in appearance, but industrial hemp is required to have less than 0.3 percent THC. See Industrial Hemp FAQs. 0.3 percent THC would not cause psychoactive effects if ingested. Marijuana typically contains 3-15% THC. See Industrial Hemp FAQs

The N.C. General Statutes define “marijuana” as all parts of the plant of the genus Cannabis. However, mature stalks and sterilized seeds and their oils are exempted from the statutory definition of “marijuana.” See N.C. Gen. Stat. § 90-87(16). Also, for licensed farmers, cannabis sativa can be possessed and cultivated, so long it contains a delta-9 tetrahydrocannabinol (THC) concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis. N.C. Gen. Stat. § 106-568.51.

Industrial hemp farmers use the stalks and seeds to make a variety of products that are legal for consumers to possess. Statute defines hemp products as “[a]ll products made from industrial hemp, including, but not limited to, cloth, cordage, fiber, food, fuel, paint, paper, particleboard, plastics, seed, seed meal and seed oil for consumption, and certified seed for cultivation if the seeds originate from industrial hemp varieties.” N.C. Gen. Stat. § 106-568.51. Presumably, under state law, it is lawful for consumers to possess these products because they are made from the part of the plant that is exempted from the statutory definition of marijuana; and, therefore both growers and consumers can possess them.

The amount of THC contained in these products is very low and these products are difficult to ingest in large amounts. For example, it would be impossible to ingest enough hemp rope to experience psychoactive effects.

Cannabis sativa leaves with low amounts of THC are a by-product of industrial hemp production. It’s not clear to me whether they have any industrial use in NC, though they can be used to produce cannabidiol (CBD) oil, which is a form of hemp extract which has no psychoactive effects and is used as a treatment for intractable epilepsy. Like the stalks and seeds, the leaves contain very low amounts of THC; and, like the stalks and seeds, it would not be possible to get high from ingesting the leaves.

Though the leaves of low-THC industrial hemp does not cause any psychoactive effect, they are not exempted from the statutory definition of marijuana and cannot be legally possessed by anyone other than a licensed hemp grower. See N.C. Gen. Stat. § 90-87(16). The only other exemption for a hemp product in the General Statues is an exemption for use or possession of hemp extract for certain medical purposes. See N.C. Gen. Stat. § 90-94.1.

So, if the leaves do not pose a public health threat, why is it illegal to possess them? One could argue that leaves that are visually identical to marijuana could be sold as a counterfeit controlled substance, so there is a public policy interest in their possession remaining illegal. However, given that these leaves are incapable of causing any psychoactive effects when ingested or consumed, from a public health perspective, it seems that possessing the leaves is as innocuous as possessing hemp rope. Given that low-THC Cannabis sativa leaves are not impairing or psychoactive, one could argue that a possession charge should be dismissed in the interest of justice. If the person is charged with the Class I felony for possession of marijuana, counsel could argue that the defendant should be allowed to plead to the Class 1 misdemeanor of tampering with an industrial hemp crop established by N.C. Gen. Stat. § 106-568.57 rather than the felony.

I’m interested to hear from readers about how courts have handled cases involving possession of hemp leaves as this is a new topic for me given the recent introduction of industrial hemp in North Carolina.

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Scientific Terminology Explained

If you’d like to learn more about scientific terminology, Duke Law student Logan Johnson interviewed toxicologist Dr. Jay Gehlhausen about terminology that attorneys might encounter when reviewing scientific evidence. Have you ever wondered what the difference is between reproducibility and repeatability? What is the difference between accuracy and precision? What are blanks and controls?

Please take a look at the short video below to learn more about scientific research and methodology for ensuring the accuracy of results.

Scientific Terminology from Sarah Olson on Vimeo.

 

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Upcoming Programs on Facial Recognition Software and Surveillance Technologies

Attorneys frequently ask me questions about facial recognition software and about new surveillance technologies. NACDL is offering training programs on each of these topics.

On September 18, 2018, from 11:00 am to 12:30 pm, NACDL will host a free webinar about the practices, risks, and limitations of emerging facial recognition technology. With an increasing number of police departments across the country turning to unregulated, untested, and flawed facial recognition technology to identify suspects, it is vital that defenders understand the technology, its limitations, and how to challenge its use in their cases. This webinar will explore these issues with the Georgetown Law Center of Privacy and Technology’s Clare Garvie, Bronx Defender’s Kaitlyn Jackson, and computer scientist Joshua Kroll. This webinar is supported by Grant No. 2013-MU-BX-K014 awarded by the Bureau of Justice Assistance. For more information and registration details, click here.

On November 29-30, 2018, NACDL and the Berkeley Center on Law and Technology (BCLT) will co-sponsor a free CLE at the University of California Berkeley School of Law. Advanced technologies are revolutionizing how the government investigates, charges, and prosecutes criminal cases. What issues do they raise under federal law and the Fourth Amendment, and how can defense lawyers keep pace? “It’s Complicated: Combatting the Surveillance State in Criminal Proceedings” will equip defenders with the tools to recognize and defend cases involving digital searches, advanced surveillance tools, technologies, and programs. For more information and registration details, click here.

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Open Forum with the NC State Crime Laboratory

The NC State Crime Laboratory and NC Office of Indigent Defense Services will offer a free to attend CLE on Friday, Sept. 28, 2018, that is designed to enhance the knowledge of criminal defense attorneys and criminal defense investigators. The program will be held at the NC Judicial Center, 901 Corporate Center Drive, Raleigh, NC. Senior forensic scientists from the State Crime Lab will present updates and key information about the analysis of physical evidence in the disciplines of Forensic Biology (DNA), DNA Database, Firearms, and Latent Evidence.

Following these presentations, the speakers will address questions from attorneys. Due to the confidential nature of casework, questions about specific cases will not be answered. Attorneys can schedule a meeting at the State Crime Lab to discuss the case with the analyst. Attendees may submit questions ahead of time using the registration form or by emailing sarah.r.olson@nccourts.org.

The program is approved for 2.5 hours of general CLE credit. Attorneys receiving CLE credit will be billed $3.50 per credit hour by the NC State Bar. Non-attorneys who wish to receive continuing education credit may use this program agenda to apply for their own credit.

Program agenda: http://www.ncids.com/forensic/resources/sept28.pdf

Registration: https://goo.gl/forms/20zNrZk7LuIHT0kp2

 

September 28, 2018

8:30-9:00 AM                     Sign-in (Coffee and light snack provided)

9:00-10:30 AM                   Presentations by the Forensic Biology (DNA), and DNA Database Sections of the NC State Crime Laboratory

10:30-11:30 AM                 Presentations by the Firearm and Tool Mark and Latent Evidence Sections of the NC State Crime Laboratory

Presenters:

  • John Byrd, State Crime Laboratory Director
  • David Freehling, Forensic Scientist Manager, Physical Evidence Section (Raleigh)
  • Jennifer Slish, Forensic Scientist Supervisor, Firearms Unit (Physical Evidence Section, Raleigh)
  • Zach Kallenbach, Forensic Scientist Manager, DNA Database Section (Raleigh)
  • Karen W. Morrow, Forensic Scientist Manager, Latent Evidence Section (Raleigh)
  • Jody H. West, Forensic Scientist Manager, Forensic Biology Section (Raleigh)

 

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NC State Crime Laboratory Customer Satisfaction Survey

The NC State Crime Lab is conducting a customer satisfaction survey. The survey will be open until Aug. 31, 2018. Filling out the survey will allow the NC State Crime Lab to get feedback on your interactions with them over the past year.

The survey is short and should not take much time to complete. It contains questions about Forensic Update, Forensic Advantage, and about the quality of interactions with the lab itself. You can fill out the survey using this link.

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