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August 2, 2006

A couple of months back in State v. Bullitt the 8th District vacated a conviction for drug possession because the only evidence concerning the nature of the drugs was testimony by the police officer.  The court held that this wasn't sufficient, and that scientific testimony was necessary.  It's a nice decision.  But it's probably wrong.

The court relied on a 1975 Ohio Supreme Court decision, State v. Maupin, 42 OStd 473, which permitted a police officer to testify that a substance was marijuana.  The drug in Bullitt was crack cocaine, though, and the court held Maupin appeared to be limited to the identification of the Demon Weed.  It cited two other cases from the district which had come to the same conclusion: in State v. Titsworththe court vacated conviction for heroin based on police testimony, and in State v. Adkisson it tossed out a conviction where cocaine had been ID'd through a field test.

You can make an argument that the earlier two cases are distinguishable; in Titsworth, the officer's testimony was hardly dispositive ("this is a spoon, and it has, you'll see it has white residue on it. That will be more than likely heroin"), and in Adkisson, the court noted that the officer himself didn't testify, but only relied upon the field tests, and there was no testimony or other showing that they were valid methods.  The bigger problem, though, is that all of these cases ignore the subsequent Supreme Court decision five years ago in State v. McKee.

In McKee, the court was again presented with a case involving marijuana -- more precisely, the defendant was charged with corrupting a juvenile with drugs, and the identification of the pot had come from the two teenage girls he was fervently trying to corrupt.  The defendant relied on Maupin, arguing that identification of the drug required expert testimony -- either lab tests or a qualified police officer -- and that whatever assets the young ladies possessed, the history of drug use required to readily distinguish controlled substances wasn't among them.  The Court noted that Maupin was decided back before the Rules of Evidence were adopted, and that courts since then have held that even laymen could testify as "expert" witnesses under Rule 701 and 702, as long as a foundation had been laid that they had the requisite knowledge.  The two young ladies did not, alas, so the reversal of the defendant's conviction was affirmed, but the syllabus of McKee is pretty clear:  "The experience and knowledge of a drug user lay witness can establish his or her competence to express an opinion on the identity of a controlled substance if a foundation for this testimony is first established."

McKee dealt with the testimony of laymen, but it's hard to see why the same rule wouldn't apply to a police officer, so long as his experience and ability were established.  And since McKee, several other courts have indeed held that a police officer's testimony is sufficient to establish the identity of the controlled substance.  The 3rd District did that in dicta a couple of years back, and the 2nd District in State v. Ross, while noting that there was no Ohio law regarding police testimony about cocaine, reviewed a number of Federal court cases upholding such testimony, and concluded that it is admissible "because crack cocaine usually has a distinctive appearance and form that makes it easily recognizable to a person who is experienced with the drug."

Of course, the 2nd and 3rd Districts aren't the 8th, and Bullitt, Titsworth, and Adkisson are still the law here, so enjoy it while it lasts.  Every now and then, you'll wind up with a case where the prosecutor hasn't got the guy from SIU lined up to testify, and instead might decide to rely on the officers' testimony.  Having one of these cases handy could get you a Rule 29.

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