ANSI/ASB Best Practice Recommendation 037, Guidelines for Opinions and Testimony in Forensic Toxicology

The American Academy of Forensic Science Standards Board (ASB) has published ANSI/ASB Best Practice Recommendation 037, Guidelines for Opinions and Testimony in Forensic Toxicology, First Edition. This document delineates guidelines for best practices in forensic toxicology opinions and testimony, including human performance toxicology (e.g., driving under the influence of alcohol or drugs), postmortem forensic toxicology, court-ordered toxicology (e.g., probation and parole, drug courts, child services), and general forensic toxicology.

The American Academy of Forensic Sciences (AAFS) is working to develop best practice recommendations through a consensus process for each forensic discipline. Though the guidelines are non-binding, they do represent a deliberative process by which a group of forensic science practitioners, researchers, and court system stakeholders have developed recommendations on training standards, lab procedures, quality assurance, report writing, and testimony for each field.

The 2009 National Research Council Report, Strengthening Forensic Science: A Path Forward, emphasized the need for improving quality assurances, including continued standards-setting and enforcement. They wrote:

…Standards and best practices create a professional environment that allows organizations and professions to create quality systems, policies, and procedures and maintain autonomy from vested interest groups. Standards ensure desirable characteristics of services and techniques such as quality, reliability, efficiency, and consistency among practitioners. Typically standards are enforced through systems of accreditation and certification, wherein independent examiners and auditors test and audit the performance, policies, and procedures of both laboratories and service providers.

The Guidelines for Opinions and Testimony in Forensic Toxicology aim to “ensur[e] that proper toxicological testimony is allowed in legal matters by defining the general areas of forensic toxicology that are viewed as reliable by other experts in the field.”

The Guidelines specify that experts should provide both an analytical toxicology report and a separate report that conveys their opinions if they will offer an opinion on the interpretation of the toxicology findings (Section 4.1). In other words, under the Guidelines, an expert who will testify about the impairing effects of substances should provide that opinion in a written report, in addition to reporting the quantitative results that are typically provided in a Lab Report.

Additionally, the Guidelines specify that an opinion should clearly state any assumptions made; clearly state any known limitations of the opinion; cite references to support the opinion (and such references should be provided in the report or made available upon request); and be based on the totality of information available, including case history, observations, circumstances, and other relevant information, and not based solely on analytical results. (Section 4.3)

The Guidelines also define what are considered appropriate (Section 5.2) and inappropriate (Section 5.3) opinions and testimony by a toxicologist. These sections reiterate that opinions about impairment must be include consideration of the context of the case and not be based solely on a quantitative result. Also, words such as “scientific certainty” or “reasonable degree of scientific certainty” should not be used in testimony unless required by jurisdictional regulations.

All ASB publications can be downloaded for free from the Published Documents section of the ASB website.

 

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Police Manuals

Attorneys may find it useful to review police procedure manuals to understand the applicable rules of conduct for the relevant law enforcement entity in their case. These rules are referred to as “policies and procedures,” “general orders,” “general directives,” “codes of conduct,” or “manuals.” Many police departments across the state have their manuals available for public viewing online, though the manuals for the various county sheriffs’ offices seem to be less commonly available.

In many cases, police departments and sheriffs’ offices choose to pursue accreditation from the Commission on Accreditation for Law Enforcement Agencies (CALEA), which requires compliance with certain standards and annual review. General information on the accreditation process and standards can be found here. It is likely that a CALEA-accredited department would have written standards.

The following is a non-exhaustive list of the law enforcement entities in the most highly-populated areas of the state, with links to online manuals if they are available. Even if the manuals have not been made available online, many law enforcement entities have made reference to such manuals in documents that are publicly available, so attorneys could request them through discovery or through a public records request.

Police Departments

Sheriffs’ Offices

  • Buncombe – Unavailable.
  • Cabarrus – Unavailable, though adhering to the “Sheriff’s Procedures and Policies” is listed as a goal in an office document (page 239).
  • Cumberland – Doesn’t list manual, but is CALEA accredited.
  • Forsyth – Doesn’t list manual, but is CALEA accredited.
  • Guilford – Unavailable.
  • Iredell – no manual available for the sheriff’s office, but the Forensic Services Guide is available here.
  • Johnston – Unavailable, but code of ethics available online.
  • Mecklenburg – Unavailable.
  • New Hanover – Unavailable.
  • Onslow – Unavailable.
  • Scotland – Unavailable.
  • Union – Unavailable.
  • Wake – Unavailable, though a portion of an old version is available here

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Sexual Assault Kit Tracking Now Available

In 2018, the NC General Assembly passed legislation (S.L. 2018-70) requiring the creation of the a statewide tracking system to track the testing of Sexual Assault Evidence Collection Kits (SAECKs) from collection to completion of forensic testing. The tracking system is now available for all stakeholders in the criminal justice system.

For kits collected on or after Oct. 1, 2018, the Sexual Assault Evidence Collection Kit Tracking and Information Management System (STIMS), can be accessed to know where the kit is, in whose custody, whether the kit has reached the lab, and whether or not it has been tested—useful information for all participants in the investigation and court proceedings.

The system is easy to use: just visit the STIMS online portal, enter the serial number of the kit you wish to check in the system, and the tracking information will be returned in moments. The serial number of the kit is found on the box itself. The number may contain several leading zeroes—these may be included or omitted. Defense counsel will need to request the serial number of the kit from law enforcement or the District Attorney’s Office. Attorneys should be aware that the online system does not report the results of the testing, only the tracking information. Results of laboratory analysis are available through the discovery process.

The NC Attorney General’s Office has put together a series of instructional videos on the STIMS systems for various users:

Overview: A general overview of STIMS, why it was created, as well as applicable law and legislative history.

Survivor User: Covers how to enter the serial numbers and how to read the results page.

These videos may be useful to know how the data is entered and how the kits are tracked through the chain of custody:

Law Enforcement User Training Video

Crime Laboratory User Training Video

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How do I find NC State Crime Laboratory procedures?

Do you know how to access the lab procedures for the NC State Crime Laboratory? It is important for attorneys to review these procedures so that they understand how the laboratory evidence in their case was analyzed.

The method for accessing lab procedures changed in 2018. Previously, there were links to the current lab procedures on the State Crime Lab’s ISO Procedures webpage. Now, the Lab has placed the documents on a SharePoint site to provide access to both current and historical/archived procedures.

To access the procedures, an attorney should follow these steps (which are also described on the Lab’s website):

  1. Email the Lab (click and an email will open in a new window).
  2. The Lab will reply to your email, sending you a link to access to the policies and procedures via the SharePoint site.
  3. Access to the SharePoint site requires an active Microsoft account. If you do not have one, you may create one for free during the login process.
  4. If you have previously been granted access, you may use this link to access the site: Crime Laboratory Policies and Procedures.

In my experience, the Lab responds quickly to these requests during business hours, but depending on one’s familiarity with using a SharePoint site, it may take a little longer to learn to navigate this system. Also, because a request and a reply is needed, attorneys should request this access now, before they have a pressing need for immediate access.

As with any change, there is a learning curve, but this change is an improvement for the defense bar because it allows access to archived procedures. The Lab regularly updates its procedures, so it is important to understand both the procedure in effect at the time the evidence was tested, and the current procedure, if there has been a change.

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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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