Mr. Fletcher vs. Mr. Daubert: A Jour­ney into the Surreal

By:  Fred­eric White­hurst, J.D., Ph.D.

Many a defense attor­ney has looked in amaze­ment at the court­room “iden­ti­fi­ca­tion” of Cannabis Sativa L. by a law enforce­ment offi­cer sport­ing a gilded pot metal badge and a high school diploma who has writ­ten a report that would turn a ninth grade Eng­lish teacher’s hair gray and deny that same offi­cer a high school diploma. Obvi­ously the award­ing of a Basic Law Enforce­ment Train­ing (BLET) diploma ele­vates such high school grad­u­ates to the doc­toral level in botany, enabling them to con­duct a visual leaf archi­tec­tural analy­sis and the court accepted alchemy of the Duquenois Levine test to reach a con­clu­sion that the green veg­etable mate­r­ial in that lit­tle baggy can be iden­ti­fied as mar­i­juana to the exclu­sion of all other plant mate­r­ial. On the face of it, this iden­ti­fi­ca­tion screams to our com­mon senses as not being pos­si­ble. How­ever, we find that in State v. Fletcher, 92 N.C. App. 50, 373 S.E. 2d 681 (N.C. App. 1988), our courts in North Car­olina are will­ing to accept this tes­ti­mony as evi­dence. Though State v. Ward, 364 N.C. 133 (2010) began a foray into rec­og­niz­ing the ridicu­lous­ness of the legit­i­macy of visual iden­ti­fi­ca­tion of con­trolled sub­stances in a world full of coun­ter­feit mate­ri­als, State v. Gar­nett, ___ N.C. App. ___, 706 S.E.2d 280 (2011) backed away from Ward, thus allow­ing an in-court iden­ti­fi­ca­tion of cannabis sativa to be admis­si­ble. This all flies in the face of a long list of sci­en­tific lit­er­a­ture and even State v. Tate, 300 N.C. 180 (1980), which found that the then known list of mate­ri­als caus­ing false pos­i­tives with this Duquenois chem­i­cal spot test ren­dered the test not sci­en­tif­i­cally reli­able or admis­si­ble as an means of iden­ti­fy­ing mar­i­juana. In North Car­olina we are now given a new stan­dard for admis­si­bil­ity of scientific/expert tes­ti­mony in courts of law. Rule 702 has entered the mod­ern era. As of Octo­ber 1, 2011, the amend­ments to Chap­ter 8C, Rule 702(a) read:

If sci­en­tific, tech­ni­cal or other spe­cial­ized knowl­edge will assist the trier-of-fact to under­stand the evi­dence or to deter­mine a fact in issue, a wit­ness qual­i­fied as an expert by knowl­edge, skill, expe­ri­ence, train­ing, or edu­ca­tion, may tes­tify thereto in the form of an opin­ion, or oth­er­wise, if all of the fol­low­ing apply:
1. The tes­ti­mony is based upon suf­fi­cient facts or data.
2. The tes­ti­mony is the prod­uct of reli­able prin­ci­ples and meth­ods.
3. The wit­ness has applied the prin­ci­ples and meth­ods reli­ably to the facts of the case.

So let us now con­sid­ered this “expert iden­ti­fi­ca­tion” of Cannabis Sativa L. by a BLET “Ph.D. botanist”. The expert must be qual­i­fied by knowl­edge, skill, expe­ri­ence, train­ing or edu­ca­tion. The law enforce­ment offi­cer who has seized green veg­etable mate­r­ial on ten or ten thou­sand occa­sions is not test­ing his qual­i­fi­ca­tions or his “iden­ti­fi­ca­tion pro­to­col”. He is sim­ply seiz­ing green veg­etable mate­r­ial. Let’s con­sider the data that he has at the point of seizure.
The most preva­lent form of seized and “iden­ti­fied as mar­i­juana” mate­r­ial that we see is the mate­r­ial that has been finely crushed. What this means is that the law enforce­ment offi­cer has seized a mate­r­ial which no longer has the macro­scopic char­ac­ter­is­tics of the orig­i­nal plant (if indeed the seized mate­r­ial is plant mate­r­ial). But is it plant mate­r­ial? What is a plant and there­fore veg­etable mate­r­ial? Ask any dic­tio­nary. The Amer­i­can Her­itage Dic­tio­nary defines a plant as “an organ­ism of the veg­etable king­dom, char­ac­ter­is­ti­cally hav­ing cel­lu­lose cell walls, grow­ing by syn­the­sis of inor­ganic sub­stances and lack­ing loco­mo­tion.” Good­ness gra­cious, look it up. We all have dic­tio­nar­ies. And at that point we are see­ing the flaw in the law enforce­ment officer’s qual­i­fi­ca­tions. We ask, “Do you carry a micro­scope?” I’m not being ridicu­lous. A plant mate­r­ial (veg­etable mate­r­ial) con­tains cells. With­out a micro­scope one can not see those cells. So what expe­ri­ence does the offi­cer have in con­duct­ing micro­scopic analy­sis? If none, then we must con­clude that he does not have the req­ui­site expe­ri­ence, train­ing or skill needed to qual­ify as an expert in iden­ti­fy­ing plant mate­r­ial. Of course he can opine that the mate­r­ial he has seized lacks loco­mo­tion but so does road kill, so do rocks, so does a fake plas­tic plant. At a recent CLE sem­i­nar at which I taught, before my lec­ture I went out into the hotel where the CLE was held and broke off a small part of a dec­o­ra­tive plas­tic pot­ted plant. Dur­ing the lec­ture I pulled this pur­loined “veg­etable” mat­ter from my coat pocket and handed it to the man in front of me and asked him what kind of plant it was. He advised that he knew it was a plant but did not know what kind of plant.

Let us get beyond the issue of whether the law enforce­ment offi­cer car­ries a micro­scope as well as or instead of a gun. Let’s sup­pose that the offi­cer in Gar­nett actu­ally had a micro­scope on the wit­ness stand and was able to see cell struc­ture. Let’s give him the ben­e­fit of the doubt that he was not will­ing to give to our client. What would be the next step in this “iden­ti­fi­ca­tion” that is being con­ducted by the offi­cer who is qual­i­fied by train­ing, skill, edu­ca­tion, etc.. We know that mar­i­juana is a seed bear­ing plant. What did the offi­cer see that indi­cated to him that this seized mate­r­ial was a seed bear­ing plant? Did he see any seeds at all? And if he did see objects that he thought were seed what qual­i­fi­ca­tions does he have to rec­og­nize these objects as seeds. Has he con­ducted any research what-so-ever in the visual iden­ti­fi­ca­tion of mar­i­juana seeds? The answer to that ques­tion is absolutely not. In fact there was no research in this area at all any­where until about 2009 when Jenna Fussell, John Thorn­ton and Fred­eric White­hurst authored “The Visual Char­ac­ter­i­za­tion and Iden­ti­fi­ca­tion of Cannabis sativa (Mar­i­juana) Seeds pub­lished in the Jour­nal of Foren­sic Iden­ti­fi­ca­tion 59 (5) 2009. So that leaves out the seeds issue and the offi­cer can not tes­tify that he has skill in iden­ti­fy­ing mar­i­juana seeds. Very likely at this point we have an offi­cer on the stand or at the point of seizure who has no expe­ri­ence or train­ing or skill at “iden­ti­fy­ing” mar­i­juana based upon the char­ac­ter­is­tics we shall call “plant” and “seeds.”

Let’s give the offi­cer the ben­e­fit of the doubt that he did not give our clients. Let’s assume that he has con­ducted research and has the skills needed to iden­tify a mate­r­ial as a plant based upon an accepted def­i­n­i­tion of the word “plant” and he has con­ducted the research and has the skills needed to iden­tify the “seeds” that he sees as seeds from a mar­i­juana plant. So next we reach the issue of flow­ers. Mar­i­juana has flow­ers. Those of us who have been involved in legal cases where “mar­i­juana” was seized have a com­mon sense that mar­i­juana has flow­ers. So we must ask the offi­cer what expe­ri­ence and skill he has in “iden­ti­fy­ing” mar­i­juana flow­ers. And not nec­es­sar­ily even the flow­ers on the grow­ing plant but the flow­ers in the end prod­uct, that which on the street is rec­og­nized as the qual­ity prod­uct because of its high tetrahy­dro­cannabi­nol (THC) con­tent. Who wants leaves and stems and stalks when one can pur­chase the bud/flower? But what is a flower? Can the offi­cer iden­tify the parts of a flower? What skill and train­ing has he got to make him qual­i­fied to ren­der an opin­ion that the mate­r­ial he is observ­ing is even flower mate­r­ial much less mar­i­juana flower mate­r­ial? “I just know it when I see it” is a great response but the obvi­ous query is “Just what is it that you are see­ing and how does that com­pare with the struc­ture of the mar­i­juana flower?” In “The Struc­ture of Eco­nomic Plants”, Pro­fes­sor Her­man Hay­ward tells us that “Hemp is dioe­cious and the num­ber of sta­mi­nate and pis­til­late plants is rel­a­tively con­stant under nor­mal con­di­tions.” And describ­ing the sta­mi­nate inflo­res­cence and flower, Hay­ward tells us that ”the flow­ers develop in small, droop­ing, branched pan­i­cles, which arise in the axils of foliage leaves. The flow­ers of the pan­i­cle may occur singly on slen­der pedicels or in groups, and usu­ally the ter­mi­nal branches bear three flow­ers, a median one and two lat­er­als which are sub­tended by bracts or stip­ules. The indi­vid­ual flow­ers are petalous with a deeply parted calyx hav­ing five greenish-yellow or red lobes that are wide­spread at matu­rity. There are five sta­mens, and the anthers are sus­pended from long thread-like fil­a­ments.” This, of course describes the flow­ers in their grow­ing state, not in the state that one finds them on the street. The expe­ri­enced law enforce­ment offi­cer who has the skill, train­ing, knowl­edge, etc. to qual­ify him as an expert who can offer an opin­ion that what he is look­ing at is mar­i­juana flower, of course knows all of this and more and will be able to describe all of those parts that he is see­ing that fit Hayward’s very clear descrip­tion of grow­ing mar­i­juana plant flow­ers. If not then he does not have the req­ui­site expe­ri­ence, train­ing or skill. And if the offi­cer can rec­og­nize all the parts of mar­i­juana flower are present within the mate­r­ial he has seized and is call­ing mar­i­juana, we must still ask if he has the req­ui­site expe­ri­ence and train­ing to not only rec­og­nize the parts but tell us that no other plants has such parts, not no other plant he has seen, but no other plant. He has been asked to iden­tify the plant as mar­i­juana, mean­ing that he is say­ing that the plant is mar­i­juana to the exclu­sion of all other plants or at least a rea­son­able por­tion of the other plants on the planet.

This is not cannabis. It is Kenaf of Kanap that con­taons no THC

But again, let’s give this offi­cer the ben­e­fit of the doubt that he was not will­ing to extend to our clients and progress to the next level of inquiry about his skill and expe­ri­ence and train­ing. Mar­i­juana is a dicotyle­don as opposed to being a mono­cotyle­don. Does the offi­cer know what this means? Surely with the proper train­ing, skill and expe­ri­ence he does. In fact, if he remem­bers his ninth grade biol­ogy class he will real­ize what these terms mean. A cotyle­don is the part of the plant that nour­ishes the embry­onic plant until it can suc­ceed on its own. In North Car­olina, an agri­cul­tural state, all of us should know about open­ing up peanuts or lima beans. Two halves, fat leaves, inside of which exists a tiny lit­tle plant. (If you haven’t opened up a lima bean you haven’t lived. Go do it now.) Those two halves are cotyle­dons and because there are two of them we call plants with two of them, dicotyle­dons. Plants such as corn have only one lit­tle fat leaf, one cotyle­don, the ker­nel of corn, that feed the lit­tle corn plant until it grows into the stalk on which the corn is pro­duced. So, assum­ing the offi­cer remem­bers his ninth grade biol­ogy class, he will have the req­ui­site knowl­edge and skill needed to rec­og­nize if this plant is a dicotyle­don, which mar­i­juana is. But how many other plants are there that are dicotyle­dons? Does he know this? Can he prop­erly edu­cate a trier-of-fact to the poten­tial num­ber of plants that might be mis­taken for mar­i­juana based on the char­ac­ter­is­tics we have con­sid­ered thus far?

Please remem­ber that what the offi­cer seizes most often is crushed mate­r­ial, no longer hav­ing all the char­ac­ter­is­tics of the grow­ing plant. Dur­ing the prepa­ra­tion for dis­tri­b­u­tion, the flow­ers are left whole but the leaves are crushed into very small pieces. A “leaf archi­tec­tural analy­sis” is no longer pos­si­ble. Go out into the woods right now or out into your yard. Pick leaves off a num­ber of plants. Let them dry a bit and then crush them up. Ask your­self if you can then tell from which plant those crushed up leaves orig­i­nated. You might be able to dif­fer­en­ti­ate crush yard grass or corn leaves from oak leaves but can you dif­fer­en­ti­ate live oak leaves from red oak leaves from maple? Can you dif­fer­en­ti­ate oregano leaves from tea leaves just by look­ing at them? Does the offi­cer have the skill, train­ing and edu­ca­tion to do this? Hickey in the Jour­nal of Botany, 60(1): 17–33 (1973) describes for us this leaf archi­tec­tural analy­sis. Has the offi­cer the skill, knowl­edge or train­ing in this area? Leaves are clas­si­fied accord­ing to leaf ori­en­ta­tion, orga­ni­za­tion, shape, mar­gin, tex­ture, gland posi­tion, peti­ole, types of vena­tion, and ele­ments of tooth archi­tec­ture. When we fol­low Hicky we being to look at the form of leaf mar­gin; we see clas­si­fi­ca­tion con­cepts such as entire, lobed, toothed, cre­nate, erose, rev­o­lute or enrolled, sinuses, spac­ing and series. Does the offi­cer know what these con­cepts even mean? But wait! These are gen­er­ally not seized plants that we have in evi­dence but crushed up mate­r­ial. So how do we begin to con­duct Hickey’s sug­gested leaf archi­tec­tural analy­sis? What train­ing, expe­ri­ence or skill can the offi­cer tes­tify to to be qual­i­fied in the “iden­ti­fi­ca­tion” of mar­i­juana from a leaf archi­tec­tural analy­sis when the leaves are no longer in their nat­ural state? In his paper “Foren­sic Aspects of Cys­tolith Hairs of Cannabis and Other Plants”, Jour­nal of AOAC (Vol. 52, No.1, 1969), George Naka­mura noted that even with a micro­scopic analy­sis he could not dif­fer­en­ti­ate 82 dif­fer­ent seed bear­ing plants out of 31874 he con­sid­ered. He never con­sid­ered a leaf archi­tec­tural analy­sis because, obvi­ously once the leaves are crushed up into prod­uct for street sales, such an analy­sis would not be pos­si­ble. So how can a law enforce­ment offi­cer visu­ally iden­tify green veg­etable mate­r­ial as mar­i­juana even with a microscope?

The response this author has heard in the past has been that one need not be a botanist in order to under­stand botan­i­cal con­cepts. OK, but Rule of Evi­dence 702 now requires that

If sci­en­tific, tech­ni­cal or other spe­cial­ized knowl­edge will assist the trier-of-fact to under­stand the evi­dence or to deter­mine a fact in issue, a wit­ness qual­i­fied as an expert by knowl­edge, skill, expe­ri­ence, train­ing, or edu­ca­tion, may tes­tify thereto in the form of an opin­ion, or oth­er­wise, if all of the fol­low­ing apply:
1. The tes­ti­mony is based upon suf­fi­cient facts or data.
2. The tes­ti­mony is the prod­uct of reli­able prin­ci­ples and meth­ods.
3. The wit­ness has applied the prin­ci­ples and meth­ods reli­ably to the facts of the case.

Cannabis Sativa L. is an extremely com­plex organ­ism which shares many fea­tures in com­mon with many other plants. We are informed by Ivan Ross in “Med­i­c­i­nal Plants of the World, Chem­i­cal Con­stituents, Tra­di­tional and Mod­ern Med­i­c­i­nal Uses” Vol­ume 3 that over 500 known chem­i­cal con­stituents have been iso­lated and iden­ti­fied in mar­i­juana. We are informed by Robert Thorne in “How Many Speci­cies of Seed Plants Are There”, Taxon 51, August 2002, that there are con­ser­v­a­tively 258,650 known seed bear­ing plants. If we refer to the Ency­clo­pe­dia Bri­tan­nica we see esti­mates of 200,000 to 500,000 known seed bear­ing plants. When we iden­tify mar­i­juana we are say­ing that the data we have col­lected is suf­fi­cient to iden­tify the mate­r­ial to the exclu­sion of any other plant or at least to the exclu­sion of a rea­son­able num­ber of other plants. We are say­ing that the com­bi­na­tion of fea­tures we have observed are only seen in mar­i­juana. Does the iden­ti­fy­ing offi­cer have the skill, edu­ca­tion, knowl­edge or train­ing to be able to artic­u­late why the fea­tures he is observ­ing would not be observed in that com­bi­na­tion in any other plant mate­r­ial? And has he col­lected suf­fi­cient data to deter­mine the mate­r­ial he has iden­ti­fied as mar­i­juana is in fact mar­i­juana. In Gar­nett the offi­cer sim­ply looked at the green veg­etable mate­r­ial and did not deter­mine if it was a plant mate­r­ial in a reli­able man­ner. The opin­ion does not address the pro­to­col the offi­cer fol­lowed in deter­min­ing if the mate­r­ial was a seed bear­ing mate­r­ial, if the mate­r­ial was a flow­er­ing plant or a dicotyle­don, if the offi­cer con­ducted a leaf archi­tec­tural analy­sis or an analy­sis of any poten­tial flower mate­r­ial in the evi­dence. In the words of Rule 702, is it true that “The tes­ti­mony is based upon suf­fi­cient facts or data?”, to say that this com­bi­na­tion of fea­tures would be observed in no other plant. And what fea­tures are we talk­ing about. Green veg­etable mate­r­ial? Unique odor?

How does one deter­mine if the odor the offi­cer is detect­ing is unique to mar­i­juana? Does the offi­cer have the expe­ri­ence, train­ing, skills or edu­ca­tion to say that the odor that he is detect­ing (what­ever that is) is unique to mar­i­juana. The offi­cer may very well tes­tify that he has never smelled any­thing else that smells like mar­i­juana. How does one test that state­ment? The officer’s olfac­tory senses can be tested but have they been tested? Is there suf­fi­cient data from the olfac­tory analy­sis from the offi­cer that the court can deter­mine the admis­si­bil­ity of the evi­dence or even the weight of the evi­dence? In other words, is the tes­ti­mony the prod­uct of reli­able prin­ci­ples and meth­ods and did the offi­cer prop­erly apply those prin­ci­ples and meth­ods to the facts of the case. It would be vir­tu­ally impos­si­ble for the trial court to test the officer’s olfac­tory senses and I am not aware of any police agency that tests for olfac­tory senses in its offi­cers. Flem­ming et. al. in “Top­ics in Het­e­ro­cyclic Chem­istry”, Vol­ume 10, 1–42 (2007) inform us that there are 120 susquiter­penoid and ter­penoid com­pounds which com­pose the mate­ri­als which are detected as the “odor” of mar­i­juana. Any Google search of sites that pur­port to sell mar­i­juana or its seeds for pro­duc­tion adver­tise their prod­ucts accord­ing to effect on the body, appear­ance and odor. It is rea­son­able to believe that envi­ron­men­tal impact will alter the qual­i­ta­tive and quan­ti­ta­tive enve­lope of the chem­i­cal com­po­si­tion of Cannabis Sativa L.. One need only look at the results of the use of such prod­ucts as Mir­a­cle Grow on a home gar­den to real­ize that envi­ron­men­tal fac­tors play a very big role in plant com­po­si­tion. The Court may very well be left with no way of deter­min­ing if the odor detec­tion part of the mar­i­juana analy­sis pro­to­col is reli­able? And the Court would do well to ask this, “Why does or did the North Car­olina Crime Lab ever con­duct a mar­i­juana analy­sis if an offi­cer need only smell the green veg­etable mate­r­ial to prove it is mar­i­juana”? It defies logic.

D.W. John­son and J.W. Gunn in Dan­ger­ous Drugs, Adul­ter­ants, Dilu­ents and Decep­tion in Street Sam­ples” , Jour­nal of Foren­sic Sci­ence, 1972 found that up to 20% of the alleged mar­i­juana sam­ples sub­mit­ted to the US Depart­ment of Justice’s Bureau of Nar­cotics and Dan­ger­ous Drugs lab were not in fact mar­i­juana. Though I have not found any more recent data describ­ing the occur­rence of coun­ter­feit mar­i­juana being sub­mit­ted by law enforce­ment offi­cers as mar­i­juana to crime labs, North Car­olina Gen­eral Statutes accept that coun­ter­feit con­trolled sub­stances are in fact a very real prob­lem and are deemed to be ille­gal. We must ask how many times law enforce­ment offi­cers sub­mit mate­r­ial they sus­pect of being mar­i­juana to a crime lab and the mate­r­ial is found to not be mar­i­juana. In other words, has any­one deter­mined the error rate for an analy­sis of sus­pected mar­i­juana con­ducted by a law enforce­ment offi­cer visu­ally and chem­i­cally ana­lyzed mar­i­juana or worse, sim­ply visu­ally deter­min­ing the green veg­etable mate­r­ial is marijuana.

In sum­mary, Fletcher meets Daubert (or in North Car­o­line Rule of Evi­dence 702) and leaves us very only with ques­tions, ques­tions that should be answered before a North Car­olina Court can accept an officer’s “iden­ti­fi­ca­tion” of mar­i­juana sim­ply by a visual or olfac­tory test. If a defen­dant wishes to stip­u­late that the mate­r­ial that was in his pos­ses­sion was mar­i­juana then the ques­tion is closed. How­ever, do we know even if defen­dants are capa­ble of deter­min­ing that they have not been sold coun­ter­feit mate­r­ial? Remem­ber that there is a new test of reli­a­bil­ity now in North Car­olina which must be sat­is­fied before sci­en­tific, tech­ni­cal or other spe­cial­ized knowl­edge will be admit­ted as evidence.

If sci­en­tific, tech­ni­cal or other spe­cial­ized knowl­edge will assist the trier-of-fact to under­stand the evi­dence or to deter­mine a fact in issue, a wit­ness qual­i­fied as an expert by knowl­edge, skill, expe­ri­ence, train­ing, or edu­ca­tion, may tes­tify thereto in the form of an opin­ion, or oth­er­wise, if all of the fol­low­ing apply:
1. The tes­ti­mony is based upon suf­fi­cient facts or data.
2. The tes­ti­mony is the prod­uct of reli­able prin­ci­ples and meth­ods.
3. The wit­ness has applied the prin­ci­ples and meth­ods reli­ably to the facts of the case.”
Street and/or court­room “iden­ti­fi­ca­tion” of green veg­etable mate­r­ial being mar­i­juana in no way meets that test.