In State v. Carter, 237 N.C. App. 274 (2014) the NC Court of Appeals found that a trial court abused its discretion by admitting an officer’s testimony that narcotics indicator field test kits indicated the presence of cocaine on various items.
The court cited State v. Ward, 364 N.C. 133, 142 (2010) which held that “expert witness testimony required to establish that the substances introduced . . . are in fact controlled substances must be based on a scientifically valid chemical analysis[.]” In Carter, a sheriff’s deputy tested for the presence of cocaine on various items in a residence using a narcotics indicated field test kit (“NIK”). The State did not introduce evidence about how the chemical analysis worked or any testimony about the tests’ reliability apart from the sheriff’s deputy’s opinion based on his personal experience with the kits.
The court noted that the NIKs were similar to ones that have not previously been found by our courts to be a reliable method of controlled substance identification. See State v. James, 215 N.C. App. at 589, 590 (2011) (finding the State did not sufficiently establish the reliability of [a] NIK” consisting of “small ‘moist towelette . . . about the size of a[n] alcohol wipe’ . . . that . . . turned blue, thereby indicating that the substance tested positive for cocaine.”)
The court relied on State v. Meadows, 201 N.C. App. 707 (2010) which held that a trial court abused its discretion by allowing an officer to testify that substances were cocaine based on NarTest field test. Attorneys should review these decisions when litigating cases where field test kits or other presumptive tests were used and consider whether the reliability of the tests can be established.
The National Commission on Forensic Science has released six documents for public review and comment. The Commission’s recommendations, if adopted, will be recommendations to the Attorney General of the United States. However, they may become recognized as best practices for practitioners and courts dealing with forensic evidence.
Attorneys or others who wish to comment on these recommendations can follow the procedures here. Attorneys may be particularly interested in the recommendations on discovery and expert testimony.
The Draft Policy Recommendation on Discovery discusses the importance of bench notes, as well as access to laboratory testing protocols, quality assurance procedures, accreditation and audit reports, proficiency testing results, and internal validation studies. Attorneys can review this post to understand which documents the NC State Crime Laboratory provides through discovery. Other labs or forensic examiners in the state might not provide all of these items. The recommendation compares the discovery provided in civil cases with the unsupported conclusory reports sometimes provided in criminal cases that summarize the results of an unidentified test conducted by an anonymous technician. The recommendations may provide attorneys with additional arguments for access to complete lab reports. The recommendation on discovery also contains important information about the preservation, consumption, and retesting of evidence.
The Draft Policy on Expert Testimony contains important information about limitations that should be placed on expert testimony, including testimony about zero error rates, the statistical basis for a technique, and the use of the word “scientific” in describing non-scientific analysis. The recommendation also calls on courts to not declare a witness to be an “expert witness” in front of the jury because the court’s acknowledgement that an witness is an “expert” may unduly influence the jury’s opinion about that witness’s testimony.
The draft policy recommendations are available here: