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.

Here are those series of posts:

1. What is the goal and the purpose of testing of unknowns generally? How do we best design a test for marijuana?
2. How is most marijuana testing conducted in the United States?
3. What is microscopic morphological examination? Is it a “good” test?
4. What is the modified Duquenois-Levine test? Is it a “good” test?
5. What is Thin Layer Chromatography? Is it a “good” test?
6. Is the combination of all three tests create a “good” testing scheme?
7. Is there a better way to test for marijuana?

There is a better way: Modern Instrumentation

There is an instrument driven way that is very specific and produces verifiable data. This instrument driven technique has been validated and if use in the validated manner with a properly trained operator utilizing proper sample collection, proper sample selection, proper sample preparation, perfect instrumentation, and legitimate interpretation of the data will arrive at a valid result. This modern day instrumentation is called the Gas Chromatography with Mass Spectrometer (GC-MS).

Gas Chromatography with Mass Spectrometer

When the laboratory analyst is proficiency tested on unknowns and then graded to see whether or not they can conduct a proper analysis of an unknown, the analyst uses GC-MS. When the laboratory wants to check that the known that they have purchased from a third party vendor that is used and needed in Thin Layer Chromatography (TLC) to compare against the unknown, the laboratory requires that it be verified by GC-MS.

So when the laboratory really wants to know or really needs to know whether or not something contains delta 9 THC, it uses the most specific device available that produces verifiable data. The verifiable data are the printouts that result from the analysis. This is called a Total Ion Current (TIC) chromatogram and the resulting spectrum that is compared against an adjudicated known that is produced by the National Institutes of Standards and Technology (NIST).

Here are other blog posts on the GC-MS process:

1. Introduction-The dif­fer­ent con­fig­u­ra­tions and the Elec­tron Impact process
2. What types of mass ana­lyz­ers are there?
3. What type of detec­tors are there?
4. What types of analy­sis can be done?
5. How do you read the output?
6. How do they come to a qual­i­ta­tive mea­sure using software?
7. How do they quan­ti­tate the results?
8. Do you need chro­matog­ra­phy if you are using Mass Spectrometry?
9. Other top­ics of inter­est about GC-MS

In the analysis of  unknowns that are seized, the process of derivatization can be used to volatilize the sample for introduction the the GC-MS. For example, the analyst can use MTBSTFA (N-methyl-N-(tert-butyldimethylsilyl)-trifluoroacetamide) or BSTFA/TMCS N,O-bis (trimethylsilyl) trifluoroacetamide/ Trimethylchlorosilane or MSTFA: N-methyl-N-trimethylsilyltrifluoroacetamide to derivative the unknown.

A popular technique includes:

A sample preparation that includes 500 mg of dry and homogenized herbal cannabis are extracted with 5 ml methanol : chloroform (9:1 v/v) by the following procedure: 10 seconds on a vortex, 15 min. ultrasonic bath including again vortexing after 5, 10 and 15 minutes, then centrifugation. The sample then needs to go through decarboxylation. A 200 μl of the above extract are transferred into a derivatization vessel. The solvent is evaporated under nitrogen gas to dryness. The sample is decarboxylated for 15 minutes at 210°C. The residue is dissolved in 200 μl methanol : chloroform (9:1 v/v). The preparation of the final solution next involves taking the above decarboxylation solution and diluting it with methanol by a factor of 100 (in two steps, each 100 μl + 900 μl) and is then used for the analysis.

Also, THC is very much amenable to Headspace Solid Phase Microextraction (HS-SPME). It is a non-derivatization-based technique where there is a extraction from the solid dose itself. It is a more direct measure as one is not chemically changing the sample. Different types of filters and fibers can be used such as polydimethylsiloxane 100 μm.

GC based testing for THC has been discussed in  the scientific literature since 1971. In 1991 the UNDCP study discussed both GC-based methods and HPLC methods to identify THC.

Other foreign governments require much more testing than we do here in the United States. For example, Canada requires four tests including two instrument-based analysis that produce verifiable information such as a spectrum.

There is a better way, but it is not used. This certainly cannot be fair and just. It is time that we as citizens demand proof in the courtroom and end the myth of specific identification of marijuana in criminal courtrooms.

The way to close this series is by an apt observation made by Dr. Frederic Whitehurst, PhD JD who wrote:

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.

Forensic Science Geek of the Week

Thanks to the combined inspiration of Christine Funk, Esquire and Chuck Ramsay, Esquire, a new twist of this blog is being introduced. A weekly fun forensic science challenge/trivia question. The winner will be affectionately dubbed “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week.”

Rules:

1. The challenge will be posted Sunday morning 12 noon EST.
2. Answers to the challenge will be entered by responding to this blog post or thewww.TheTruthAboutForensicScience.com FaceBook fan page.
3. All comments that are answers to this blog will released after 9pm EST.
4. The first complete and correct answer will be awarded the envious title of “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week”
5. “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week” is entitled a one time post of his/her picture on this blog and the www.TheTruthAboutForensicScience.com FaceBook fan page. The coveted title will be his/her for that week. Additionally, a winner will be allowed one link to one webpage of his/her choice. Both the picture and the weblink is subject to the approval of Justin J McShane, Esquire and will only be screened for appropriate taste.
6. The winner will be announced Sunday night.
7. A winner may only repeat two times in a row, then will have to sit out a week to be eligible again. This person, who was the two time in a row winner, may answer the question, but will be disqualified from the honor so as to allow others to participate.
8. This is for learning and for fun. EVERYONE IS ENCOURAGED TO TRY TO ANSWER THE WEEKLY QUESTION. So give it a shot.

Here it is:

The www.TheTruthAboutForensicScience.com “Forensic Science Geek of the Week” challenge question. Remember the first full and complete answer wins the honor and also gets his/her photo displayed, bragging rights for the week and finally website promotion.

OFFICIAL QUESTION:

2. What is it useful for?

The Hall of Fame for the www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week:

Week 1: Chuck Ramsay, Esquire

Week 2: Rick McIndoe, PhD

Week 3: Christine Funk, Esquire

Week 4: Stephen Daniels

Week 5: Stephen Daniels

Week 6: Richard Middlebrook, Esquire

Week 7: Christine Funk, Esquire

Week 8: Ron Moore, B.S., J.D.

Week 9: Ron Moore, B.S., J.D.

Week 10: Kelly Case, Esquire and Michael Dye, Esquire

Week 11: Brian Manchester, Esquire

Week 12: Ron Moore, B.S., J.D.

Week 13: Ron Moore, B.S., J.D.

Week 14: Josh D, Lee, Esquire

Week 15: Joshua Dale, Esquire and Steven W. Hernandez, Esquire

Week 16: Christine Funk, Esquire

Week 17: Joshua Dale, Esquire

Week 18: Glen Neeley, Esquire

Week 19: Amanda Bynum, Esquire

Week 20: Josh D. Lee, Esquire

Week 21: Glen Neeley, Esquire

Week 22:  Stephen Daniels

Week 23:  Ron Moore, B.S., J.D.

Week 24: Bobby Spinks

Week 25:  Jon Woolsey, Esquire

Week 26: Mehul B. Anjaria

Week 27: Richard Middlebrook, Esquire

Week 28:Ron Moore, Esquire

Week 29: Ron Moore, Esquire

Week 30: C. Jeffrey Sifers, Esquire

Week 31: Ron Moore, Esquire

Week 32: Mehul B. Anjaria

Week 33: Andy Johnston

Week 34: Ralph R. Ristenbatt, III

Week 35: Brian Manchester, Esquire

Week 36: Ron Moore, Esquire

Week 37: Jeffrey Benson

Week 38: Pam King, Esquire

Week 39: Josh D. Lee, Esquire

Week 40: Robert Lantz, Ph.D.

WEEK 41: UNCLAIMED, IT COULD BE YOU!

Week 42: Steven W. Hernandez, Esquire

Week 43:Ron Moore, Esquire

Week 44: Mehul B. Anjaria

Week 45: Mehul B. Anjaria

Week 46:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 48: Leslie M. Sammis, Esquire

Week 49: Ron Moore, Esquire

Week 50: Jeffery Benson

Week 51: Mehul B. Anjaria

Week 52: Ron Moore, Esquire

Week 53: Eric Ganci, Esquire

Week 54: Charles Sifers, Esquire and Tim Huey, Esquire

Week 55: Joshua Andor, Esquire

Week 56: Brian Manchester, Esquire

Week 57: Ron Moore, Esquire

Week 58: Eric Ganci, Esquire

Week 59: Ron Moore, Esquire

Week 60: Brian Manchester, Esquire

Week 61: William Herringer, Esquire

Week 62: UNCLAIMED IT COULD BE YOU!

Week 63: Ginger Moss

Week 64: Richard L. Holcomb, Esquire

Week 65: John L. Buckley, Esquire

Week 66: Jeff Sifers, Esquire

Week 67: Josh D. Lee, Esquire

Week 68: Dr. Barbara Vonderhaar, PhD.

Week 69: Christine Funk, Esquire

Week 70: Mehul B. Anjaria

Week 71: Ron Moore, Esquire

Week 72: Mehul B. Anjaria

Week 73: Josh D. Lee, Esquire

Week 74: Kim Keheley Frye, Esquire

Week 75: Mehul B. Anjaria and Peter Carini, Esquire

Week 76: Kim Keheley Frye, Esquire

Week 77: Mehul B. Anjaria

Week 78: Steven W. Hernandez, Esquire

Week 79: UNCLAIMED. IT COULD BE YOU!

Week 8o: Justin Harris, Esquire

Week 81: UNCLAIMED. IT COULD BE YOU!

Week 82: Jay Tiftickjian, Esquire

In this series of posts we are going to examine this seemly simple question:

1. What is the goal and the purpose of testing of unknowns generally? How do we best design a test for marijuana?
2. How is most marijuana testing conducted in the United States?
3. What is microscopic morphological examination? Is it a “good” test?
4. What is the modified Duquenois-Levine test? Is it a “good” test?
5. What is Thin Layer Chromatography? Is it a “good” test?
6. Is the combination of all three tests create a “good” testing scheme?
7. Is there a better way to test for marijuana?

Part 6: Is the combination of all three tests create a “good” testing scheme?

The government would choose to argue that the combination of these three tests results in a valid conclusion that this tested unknown is marijuana (contains THC). All  three roads leads, so they say, lead to THC. The more sophisticated version of this argument is the Venn diagram. Perhaps something like the below:

This is simply not proven or supported by the published empirical research. Even if it were true there is no evidence how wide or big that “D” area is. It could be very wide and large containing many compounds such as this below example below where the result of this type of testing would be a positive for O, T, H, P, M, A, B, X, K, Y and not for B alone:

There is no evidence that these distinct tests ever intercept.

While in earlier posts, we have examined the propriety and suitability of these three separate and distinct tests in the identification of THC, we cannot properly judge them in isolation. We must remember and in fairness this is a 3 test process and technique.

There are no meaningful or robust studies published that truly validates this three test procedure as resulting in a specific qualitative measure for THC.

What compounds the issue of the possibility of error is that as the analyst is not using the same sample throughout each of these 3 tests. It is in fact, three different samples of the original unknown. The analyst presumes that the unknown is homogenous. Further assumed is that the sampling and the sample selection of the unknown conducted by the analyst result in identical homogeneous samples. These are not justified scientific assumptions (An assumption is not drawn from evidence; it is a hypothesis {my assumption can be tested by looking at the dictionary}. A presumption implies a basis in evidence {the legal presumption of innocence})

Each of these tests are wholly destructive in nature by their very process.

• Just because the sought after features of the microscopic morphological examination were present in the first sample doesn’t necessarily mean that that this sample will contain the sought after features in the modified Duquenois-Levine and the TLC examination because they are not examined for in this sample.
• Just because the sought after features of the modified Duquenois-Levine examination were present in the second sample doesn’t necessarily mean that the features sought after in the microscopic morphological examination are there (because it was not examined) and the sought after featured of the TLC examination are there (because it was not examined) in this second sample.
• Just because the sought after features of the TLC examination were present in the third sample doesn’t necessarily mean that the features sought after in the microscopic morphological examination are there (because it was not examined) and the sought after featured of the modified Duquenois-Levine examination are there (because it was not examined) in this third sample.

In this series of posts we are going to examine this seemly simple question:

1. What is the goal and the purpose of testing of unknowns generally? How do we best design a test for marijuana?
2. How is most marijuana testing conducted in the United States?
3. What is microscopic morphological examination? Is it a “good” test?
4. What is the modified Duquenois-Levine test? Is it a “good” test?
5. What is Thin Layer Chromatography? Is it a “good” test?
6. Is the combination of all three tests create a “good” testing scheme?
7. Is there a better way to test for marijuana?

Part 5: What is Thin Layer Chromatography? Is it a “good” test?

Thin Layer Chromatography testing

What is it?

Thin Layer Chromatography (TLC) is a chromatographic technique. It is a combination of a colorimetric test and is measured in terms of separation.

Mechanically how is it preformed?

TLC depends on the sta­tion­ary phase, often a glass plate coated with sil­ica (it must be properly  desiccated or dried) and the mobile phase which is comprised of a sol­vent mixture made of toluene and diethylamine typically. When placed on a properly dried plate and using a properly mixed and prepared solvent, the solvent (the mobile phase) will be wicked up by the sil­ica with cap­il­lary action and travel up the plate. A sample from the unknown is selected. It is mashed up in some mechanical process and in some processes call for it to be dissolved. It is placed in the designated spot. A test is compared by performing the reaction of the plate of a known sample from an adjudicated source. This comparison is made with the analyst’s eyes. There will be different spots on the plate at different positions from the origin with various intensities of color. The height and the color change are visualized. The spots typ­i­cally need to be visu­al­ized with a chem­i­cal spray such as Fast Blue B Salt (50 mg in 20 ml of NaOH (0.1 N)) or par­tic­u­lar lighting.

How is the typical crime laboratory analyst trained to conduct this?

Once again, the analyst is not trained in the fundamentals of how or why this process works. If you handed them a pen and paper and ask them to diagram and explain with specifics the chromatographic process, they would likely be baffled. Also foreign to them would be the specifics as to why the solvent used to elute up the plate has to be in a specific ratio and not another. In essence, it is another subjective test as it is based upon perception of color by the analyst and the perception of this height developing on the plate versus the adjudicated known.

The analysts are not academically trained in the theory of this technique of chromatography, and are not taught about cross-reactivity and false positives or other sources of errors.

Is this a verifiable test?

Much like the modified Duquenois-Levine test, TLC is potentially verifiable. Digital cameras exist. Photographs can be taken. Heck, even video can be taken to show how it is conducted on a particular sample from the unknown and this comparison to the adjudicated known. However, the modern practice is to not take a single photograph, to not take advantage of video technology and produce nothing verifiable in court that the test was even conducted or that the analyst’s perception of the change did happen and was correctly interpreted.

Again, there are no crime laboratories that I am aware of that use the ACE-V (Analysis, Comparison, Evaluation, and Verification) technique that one would find in fingerprint identification with a double check in real time by a fellow bench analyst. In essence, it is checked one time, by one person with no double check by another, and nothing produced that proves that the analysis was done or that the features that are reported as present were in fact objectively present.

Is there empirical validity studies that prove that this is a specific and confirmatory test?

Once again, this type of testing has not been proven to be a validated method to test specifically for THC. There are well-known and discovered false positives which includes coffee, basil and even tobacco products.

Once again, the same issues that are discussed prove true with this testing. This TLC test is preformed on a totally different sample from the unknown that is not subjected to the microscopic morphological examination or the modified Duquenois-Levine colorimetric test.

Please visit the www.TheTruthAboutForensicScience.com FaceBook fan page.

The week 78 “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week” honors goes to: Steven W. Hernandez, Esquire

According to our Geek, the following is offered:

Steven W. Her­nan­dez, Esq., is admit­ted to prac­tice in State of New Jer­sey and the United States Dis­trict Court for the Dis­trict of New Jer­sey. He spe­cial­izes in DWI defense.  Mr. Her­nan­dez is a mem­ber of the National Col­lege of DUI Defense (NCDD). Amer­i­can Bar Asso­ci­a­tion, The New Jer­sey Bar Asso­ci­a­tion, and the Ocean County Bar Asso­ci­a­tion.  He has suc­cess­fully com­pleted the DUI Detec­tion & Stan­dard­ized Field Sobri­ety Test­ing, the same course rec­og­nized by the National High­way Trans­porta­tion Safety Admin­is­tra­tion (NHTSA), used to train police per­son­nel. Mr. Her­nan­dez was the first attor­ney in New Jer­sey to receive his Foren­sic Sobri­ety Assess­ment (FSA) Cer­tifi­cate, by demon­strat­ing knowl­edge of the sci­ence and foren­sic use of road­side sobri­ety testing.

Congratulations to our Forensic Science Geek of the Week winner!

OFFICIAL QUESTION:

2. What is it used for?

3. How does it work?

4. Are there any known issues with respect to its forensic suitability? If so, what?

Our Geek of the Week answered:

(1) Duquenois-Levine Reagent is a test for detecting marijuana and hashish and the residue of THC in paraphernalia. It contains vanillin, concentrated hydrochloric acid, and chloroform (2) It used by : a. Removing clip; b. Adding substance into pouch c. Replace clip d. Break left ampoule, agitate for one minute. Look for any color that formed (none should occur). e. Break middle ampoule, agitate until color changes. Look for any color formed (a rich violet-blue should occur). f. Break right ampoule, and agitate for 5 seconds. g. Observe color change: if slate grey upper level over purple lower level, then it is positive for marijuana. (3) Forensically speaking it is not very reliable. The test has been known to produce false positives and has been known identify some plants, such as nutmeg as marijuana.

[BLOGGER’S NOTE: The myth of specific identification of Marijuana in criminal court Part 4: What is the modified Duquenois-Levine test? Is it a “good” test?

A very honorable mention goes to: Anthaony Graviano who wrote:

1. The image is of an Duquenois-Levine reagent pouch which is part of an ODV NarcoPouch narcotics field testing kit.

2. It is used by investigators to test an unknown substance for the presence of Marijuana.

3. The test is performed by first placing approximately 10-20mg of the target substance into the ampoule that comes with the testing kit. The Duquenois-Levine reagent pouch is then added to the ampoule. The mixture is shaken to allow for a proper mixture and if the mixture turns purple it is an indication that the unknown substance is Marijuana.

4. This test has a number of known issues. There is room for error in the tester’s perception of the color. Factors such as improper lighting or the background in which the test is viewed upon could impact the tester’s perception and they might think the test turned purple when it is, in-fact not. Starting in the 1960’s and 70’s, there were various studies that indicated the Duquenois-Levine reagent test is not specific to Marijuana. In 1969, a UK government scientist named M.J. de Faubert Maunder discovered that 25 different organic substances produced a similar color as Marijuana in the Duquenois-Levine reagent test, warning that it should never be used as the only conclusive evidence. Another study which was published in 1975 in The Journal of Criminal Defense stated “The microscopic and chemical screening tests presently used in marijuana analysis are not specific even in combination for ‘marijuana’ defined in any way.” In conclusion, the NarcoPouch field testing kit is not forensically suitable to be used by itself as conclusive evidence that an unknown substance is Marijuana.

The Hall of Fame for the www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week:

Week 1: Chuck Ramsay, Esquire

Week 2: Rick McIndoe, PhD

Week 3: Christine Funk, Esquire

Week 4: Stephen Daniels

Week 5: Stephen Daniels

Week 6: Richard Middlebrook, Esquire

Week 7: Christine Funk, Esquire

Week 8: Ron Moore, B.S., J.D.

Week 9: Ron Moore, B.S., J.D.

Week 10: Kelly Case, Esquire and Michael Dye, Esquire

Week 11: Brian Manchester, Esquire

Week 12: Ron Moore, B.S., J.D.

Week 13: Ron Moore, B.S., J.D.

Week 14: Josh D, Lee, Esquire

Week 15: Joshua Dale, Esquire and Steven W. Hernandez, Esquire

Week 16: Christine Funk, Esquire

Week 17: Joshua Dale, Esquire

Week 18: Glen Neeley, Esquire

Week 19: Amanda Bynum, Esquire

Week 20: Josh D. Lee, Esquire

Week 21: Glen Neeley, Esquire

Week 22:  Stephen Daniels

Week 23:  Ron Moore, B.S., J.D.

Week 24: Bobby Spinks

Week 25:  Jon Woolsey, Esquire

Week 26: Mehul B. Anjaria

Week 27: Richard Middlebrook, Esquire

Week 28:Ron Moore, Esquire

Week 29: Ron Moore, Esquire

Week 30: C. Jeffrey Sifers, Esquire

Week 31: Ron Moore, Esquire

Week 32: Mehul B. Anjaria

Week 33: Andy Johnston

Week 34: Ralph R. Ristenbatt, III

Week 35: Brian Manchester, Esquire

Week 36: Ron Moore, Esquire

Week 37: Jeffrey Benson

Week 38: Pam King, Esquire

Week 39: Josh D. Lee, Esquire

Week 40: Robert Lantz, Ph.D.

WEEK 41: UNCLAIMED, IT COULD BE YOU!

Week 42: Steven W. Hernandez, Esquire

Week 43:Ron Moore, Esquire

Week 44: Mehul B. Anjaria

Week 45: Mehul B. Anjaria

Week 46:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 48: Leslie M. Sammis, Esquire

Week 49: Ron Moore, Esquire

Week 50: Jeffery Benson

Week 51: Mehul B. Anjaria

Week 52: Ron Moore, Esquire

Week 53: Eric Ganci, Esquire

Week 54: Charles Sifers, Esquire and Tim Huey, Esquire

Week 55: Joshua Andor, Esquire

Week 56: Brian Manchester, Esquire

Week 57: Ron Moore, Esquire

Week 58: Eric Ganci, Esquire

Week 59: Ron Moore, Esquire

Week 60: Brian Manchester, Esquire

Week 61: William Herringer, Esquire

Week 62: UNCLAIMED IT COULD BE YOU!

Week 63: Ginger Moss

Week 64: Richard L. Holcomb, Esquire

Week 65: John L. Buckley, Esquire

Week 66: Jeff Sifers, Esquire

Week 67: Josh D. Lee, Esquire

Week 68: Dr. Barbara Vonderhaar, PhD.

Week 69: Christine Funk, Esquire

Week 70: Mehul B. Anjaria

Week 71: Ron Moore, Esquire

Week 72: Mehul B. Anjaria

Week 73: Josh D. Lee, Esquire

Week 74: Kim Keheley Frye, Esquire

Week 75: Mehul B. Anjaria and Peter Carini, Esquire

Week 76: Kim Keheley Frye, Esquire

Week 77: Mehul B. Anjaria

Week 78: Steven W. Hernandez, Esquire

Week 79: UNCLAIMED. IT COULD BE YOU!

Week 8o: Justin Harris, Esquire

Week 81: UNCLAIMED. IT COULD BE YOU!

Week 82: Jay Tiftickjian, Esquire

Please visit the www.TheTruthAboutForensicScience.com FaceBook fan page.

The week 82 “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week” honors goes to: Jay Tiftickjian, Esquire

According to our Geek, the following is offered:

Denver attorney Jay Tiftickjian carries a Preeminent AV® rating in Martindale-Hubbell, the highest rating an attorney can achieve based on confidential ratings by members of the Colorado Judiciary and Colorado Bar. Martindale-Hubbell is the nation’s oldest and most respected legal directory, and a Preeminent AV® rating is an outstanding achievement, demonstrating an attorney’s superb legal ability and professional ethics. A Preeminent AV® rating demonstrates an attorney has reached the height of professional excellence.

In 2010, Mr. Tiftickjian was granted Life Membership status with the Colorado Criminal Defense Bar based on his contributions to criminal defense in Colorado. There are currently fewer than 20 Life Members of the CCDB, and attorney Tiftickjian is proud to be the youngest Life Member.

Mr. Tiftickjian is listed in the prestigious Bar Register of Preeminent Lawyers™ for criminal defense. The Bar Register of Preeminent Lawyers is a national directory for only those practicing attorneys at the top of their field, and is the definitive guide of the most distinguished lawyers and law firms in the United States.

In 2010 and 2011, Mr. Tiftickjian was nominated as a Super Lawyer: Rising Star for recognition of the up and coming defense attorneys in Colorado. This award recognizes the best criminal defense attorneys in Colorado under 40 as voted on by the Colorado Bar. No more than 2.5 percent of attorneys receive this award. Mr. Tiftickjian was also profiled in 2010 and 2011’s 5280 Magazine for Denver DUI/DWI defense and criminal defense.

Mr. Tiftickjian is a member of The National Association of Criminal Defense Lawyers (NACDL), The National College of DUI Defense (NCDD), The Colorado Bar Association (CBA) and The Colorado Criminal Defense Bar (CCDB). He has also received certification in the National Highway Traffic Safety Administration (NHSTA) DUI field sobriety test practitioner and instructor course.

Mr. Tiftickjian regularly attends sessions within the National College for DUI Defense, including its yearly DUI training conducted at Harvard Law School. This is the NCDD’s signature program to develop DUI trial skills, including innovative ways to attack breath tests, blood tests, field sobriety tests, and the prosecution’s police officers and expert witnesses.

Congratulations to our Forensic Science Geek of the Week winner!

OFFICIAL QUESTION:

2. What type of search is is conducting?

3. Are there any known issues with respect to this type of search’s forensic suitability? If so, what?

Our Geek of the Week answered:.

This is enCase and it looks to be doing a harddrive search, although I am not certain of this as I have never had my paws on the program. It is known to have problems with searching emails.

[BLOGGER’S NOTE: This is a tough one in terms of question number 2 and 3 for the very reason Attorney Tiftickjian suggests. The defense bar and defense investigators are not supposed to have access to enCase. The program itself is preforming what is called a hash value search. The National Center for Missing and Exploited Children (NCMEC) database of SHA-1 hash values is a database library of SHA-1 hash values of supposedly adjudicated child pornography images. What precisely it contains and how it is determined to be “adjudicated” is not totally available to the private sector, further increasing the difficulty of computer forensic examinations for the defendants. Specifically, the screenshot featured in our Geek of the Week challenge shows the results of matching files against hash sets. The “Hash Set” column shows what “package” the file belongs to. The comments in the signature column tell you about interesting bits – for instance, logo.sys is a bitmap even though its extension is .sys.]

The Hall of Fame for the www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week:

Week 1: Chuck Ramsay, Esquire

Week 2: Rick McIndoe, PhD

Week 3: Christine Funk, Esquire

Week 4: Stephen Daniels

Week 5: Stephen Daniels

Week 6: Richard Middlebrook, Esquire

Week 7: Christine Funk, Esquire

Week 8: Ron Moore, B.S., J.D.

Week 9: Ron Moore, B.S., J.D.

Week 10: Kelly Case, Esquire and Michael Dye, Esquire

Week 11: Brian Manchester, Esquire

Week 12: Ron Moore, B.S., J.D.

Week 13: Ron Moore, B.S., J.D.

Week 14: Josh D, Lee, Esquire

Week 15: Joshua Dale, Esquire and Steven W. Hernandez, Esquire

Week 16: Christine Funk, Esquire

Week 17: Joshua Dale, Esquire

Week 18: Glen Neeley, Esquire

Week 19: Amanda Bynum, Esquire

Week 20: Josh D. Lee, Esquire

Week 21: Glen Neeley, Esquire

Week 22:  Stephen Daniels

Week 23:  Ron Moore, B.S., J.D.

Week 24: Bobby Spinks

Week 25:  Jon Woolsey, Esquire

Week 26: Mehul B. Anjaria

Week 27: Richard Middlebrook, Esquire

Week 28:Ron Moore, Esquire

Week 29: Ron Moore, Esquire

Week 30: C. Jeffrey Sifers, Esquire

Week 31: Ron Moore, Esquire

Week 32: Mehul B. Anjaria

Week 33: Andy Johnston

Week 34: Ralph R. Ristenbatt, III

Week 35: Brian Manchester, Esquire

Week 36: Ron Moore, Esquire

Week 37: Jeffrey Benson

Week 38: Pam King, Esquire

Week 39: Josh D. Lee, Esquire

Week 40: Robert Lantz, Ph.D.

WEEK 41: UNCLAIMED, IT COULD BE YOU!

Week 42: Steven W. Hernandez, Esquire

Week 43:Ron Moore, Esquire

Week 44: Mehul B. Anjaria

Week 45: Mehul B. Anjaria

Week 46:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 48: Leslie M. Sammis, Esquire

Week 49: Ron Moore, Esquire

Week 50: Jeffery Benson

Week 51: Mehul B. Anjaria

Week 52: Ron Moore, Esquire

Week 53: Eric Ganci, Esquire

Week 54: Charles Sifers, Esquire and Tim Huey, Esquire

Week 55: Joshua Andor, Esquire

Week 56: Brian Manchester, Esquire

Week 57: Ron Moore, Esquire

Week 58: Eric Ganci, Esquire

Week 59: Ron Moore, Esquire

Week 60: Brian Manchester, Esquire

Week 61: William Herringer, Esquire

Week 62: UNCLAIMED IT COULD BE YOU!

Week 63: Ginger Moss

Week 64: Richard L. Holcomb, Esquire

Week 65: John L. Buckley, Esquire

Week 66: Jeff Sifers, Esquire

Week 67: Josh D. Lee, Esquire

Week 68: Dr. Barbara Vonderhaar, PhD.

Week 69: Christine Funk, Esquire

Week 70: Mehul B. Anjaria

Week 71: Ron Moore, Esquire

Week 72: Mehul B. Anjaria

Week 73: Josh D. Lee, Esquire

Week 74: Kim Keheley Frye, Esquire

Week 75: Mehul B. Anjaria and Peter Carini, Esquire

Week 76: Kim Keheley Frye, Esquire

Week 77: Mehul B. Anjaria

Week 78: UNCLAIMED. IT COULD BE YOU!

Week 79: UNCLAIMED. IT COULD BE YOU!

Week 8o: Justin Harris, Esquire

Week 81: UNCLAIMED. IT COULD BE YOU!

Week 82: Jay Tiftickjian, Esquire

Forensic Science Geek of the Week

Thanks to the combined inspiration of Christine Funk, Esquire and Chuck Ramsay, Esquire, a new twist of this blog is being introduced. A weekly fun forensic science challenge/trivia question. The winner will be affectionately dubbed “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week.”

Rules:

1. The challenge will be posted Sunday morning 12 noon EST.
2. Answers to the challenge will be entered by responding to this blog post or thewww.TheTruthAboutForensicScience.com FaceBook fan page.
3. All comments that are answers to this blog will released after 9pm EST.
4. The first complete and correct answer will be awarded the envious title of “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week”
5. “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week” is entitled a one time post of his/her picture on this blog and the www.TheTruthAboutForensicScience.com FaceBook fan page. The coveted title will be his/her for that week. Additionally, a winner will be allowed one link to one webpage of his/her choice. Both the picture and the weblink is subject to the approval of Justin J McShane, Esquire and will only be screened for appropriate taste.
6. The winner will be announced Sunday night.
7. A winner may only repeat two times in a row, then will have to sit out a week to be eligible again. This person, who was the two time in a row winner, may answer the question, but will be disqualified from the honor so as to allow others to participate.
8. This is for learning and for fun. EVERYONE IS ENCOURAGED TO TRY TO ANSWER THE WEEKLY QUESTION. So give it a shot.

Here it is:

The www.TheTruthAboutForensicScience.com “Forensic Science Geek of the Week” challenge question. Remember the first full and complete answer wins the honor and also gets his/her photo displayed, bragging rights for the week and finally website promotion.

OFFICIAL QUESTION:

Forensic Science Geek of the Week Challenge

1. What is computer program that is pictured above?

2. What type of search is is conducting?

3. Are there any known issues with respect to this type of search’s forensic suitability? If so, what?

The Hall of Fame for the www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week:

Week 1: Chuck Ramsay, Esquire

Week 2: Rick McIndoe, PhD

Week 3: Christine Funk, Esquire

Week 4: Stephen Daniels

Week 5: Stephen Daniels

Week 6: Richard Middlebrook, Esquire

Week 7: Christine Funk, Esquire

Week 8: Ron Moore, B.S., J.D.

Week 9: Ron Moore, B.S., J.D.

Week 10: Kelly Case, Esquire and Michael Dye, Esquire

Week 11: Brian Manchester, Esquire

Week 12: Ron Moore, B.S., J.D.

Week 13: Ron Moore, B.S., J.D.

Week 14: Josh D, Lee, Esquire

Week 15: Joshua Dale, Esquire and Steven W. Hernandez, Esquire

Week 16: Christine Funk, Esquire

Week 17: Joshua Dale, Esquire

Week 18: Glen Neeley, Esquire

Week 19: Amanda Bynum, Esquire

Week 20: Josh D. Lee, Esquire

Week 21: Glen Neeley, Esquire

Week 22:  Stephen Daniels

Week 23:  Ron Moore, B.S., J.D.

Week 24: Bobby Spinks

Week 25:  Jon Woolsey, Esquire

Week 26: Mehul B. Anjaria

Week 27: Richard Middlebrook, Esquire

Week 28:Ron Moore, Esquire

Week 29: Ron Moore, Esquire

Week 30: C. Jeffrey Sifers, Esquire

Week 31: Ron Moore, Esquire

Week 32: Mehul B. Anjaria

Week 33: Andy Johnston

Week 34: Ralph R. Ristenbatt, III

Week 35: Brian Manchester, Esquire

Week 36: Ron Moore, Esquire

Week 37: Jeffrey Benson

Week 38: Pam King, Esquire

Week 39: Josh D. Lee, Esquire

Week 40: Robert Lantz, Ph.D.

WEEK 41: UNCLAIMED, IT COULD BE YOU!

Week 42: Steven W. Hernandez, Esquire

Week 43:Ron Moore, Esquire

Week 44: Mehul B. Anjaria

Week 45: Mehul B. Anjaria

Week 46:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 48: Leslie M. Sammis, Esquire

Week 49: Ron Moore, Esquire

Week 50: Jeffery Benson

Week 51: Mehul B. Anjaria

Week 52: Ron Moore, Esquire

Week 53: Eric Ganci, Esquire

Week 54: Charles Sifers, Esquire and Tim Huey, Esquire

Week 55: Joshua Andor, Esquire

Week 56: Brian Manchester, Esquire

Week 57: Ron Moore, Esquire

Week 58: Eric Ganci, Esquire

Week 59: Ron Moore, Esquire

Week 60: Brian Manchester, Esquire

Week 61:William Herringer, Esquire

Week 62: UNCLAIMED IT COULD BE YOU!

Week 63: Ginger Moss

Week 64: Richard L. Holcomb, Esquire

Week 65: John L. Buckley, Esquire

Week 66: Jeff Sifers, Esquire

Week 67: Josh D. Lee, Esquire

Week 68: Dr. Barbara Vonderhaar, PhD.

Week 69: Christine Funk, Esquire

Week 70: Mehul B. Anjaria

Week 71: Ron Moore, Esquire

Week 72: Mehul B. Anjaria

Week 73: Josh D. Lee, Esquire

Week 74: Kim Keheley Frye, Esquire

Week 75: Mehul B. Anjaria and Peter Carini, Esquire

Week 76: Kim Keheley Frye, Esquire

Week 77: Mehul B. Anjaria

Week 78: UNCLAIMED. IT COULD BE YOU!

Week 79: UNCLAIMED. IT COULD BE YOU!

Week 8o: Justin Harris, Esquire

Week 81: UNCLAIMED. IT COULD BE YOU!

1. What is the goal and the purpose of testing of unknowns generally? How do we best design a test for marijuana?
2. How is most marijuana testing conducted in the United States?
3. What is microscopic morphological examination? Is it a “good” test?
4. What is the modified Duquenois-Levine test? Is it a “good” test?
5. What is Thin Layer Chromatography? Is it a “good” test?
6. Is the combination of all three tests create a “good” testing scheme?
7. Is there a better way to test for marijuana?

Part 4: What is the modified Duquenois-Levine test? Is it a “good” test?

Modified Duquenois-Levine testing

What is it?

It is technically referred to as a colorimetric test. In short, it is a color test. A totally different selection of the unknown is sampled and subjected to this test. A reagent is added to the unknown. The reagent is made up of a combination of vanillin, acetaldehyde, and ethanol in a specific ratio of these component materials.

Mechanically how is it preformed?

This totally separate sample from the unknown is placed into typically a test tube. A certain amount of the Duquenois reagent is added (typically about 10 drops). The tube is closed. The tube is agitated (shaken) for an unspecified period. The tube is reopened. Concentrated hydrochloric acid is then added (usually about 20 drops). The tube is closed. It is agitated (shaken) again. Any color change is then noted. The tube is reopened. Chloroform is added. The tube is closed. It is again agitated (shaken) or vortexed (mixed). The analyst is looking for a color change (thought to be violet or purple) and a separation into two layers.

This is the end result of the modified Duquenois-Levine test. This picture is after the HCl and the chloroform are added. There is a deep purple color at the top and then a pink color at the bottom.

How is the typical crime laboratory analyst trained to conduct this test?

They are trained in the process and the steps in the mechanical process. No crime laboratory analyst is ever instructed by a doctoral level analytical chemist as to why this process results in any sort of color change or the way the physical separation occurs in the colors with the addition of chloroform or why it these changes happen at all.

In essence, it is a subjective test as it is based upon perception of color by the analyst and the perception of this developing of a separate layer once chloroform is added.

It is a second sample that is tested. Prior to the testing by modified Duquenois-Levine technique, there is no microscopic morphological examination conducted on this sample. There is no TLC analysis on this sample.

It is tested one time and then discarded. No other testing is performed on this sample.

The analysts are not academically trained in the theory of the reagent use, and are not taught about cross-reactivity and false positives or other sources of errors.

Is this a verifiable test?

Potentially, yes. Digital cameras exist. Photographs can be taken just like the one above. Heck, even video can be taken to show how it is conducted on a particular sample from the unknown. However, the modern practice is to not take photos. They videotape nothing.  The laboratory produces nothing verifiable in court that the test was even conducted or that the analyst’s perception of the change in color did happen and was correct or that there was this separation once the chloroform is added.

Again, there are no crime laboratories that I am aware of that use the ACE-V (Analysis, Comparison, Evaluation, and Verification) technique that one would find in fingerprint identification with a double check in real time by a fellow bench analyst. In essence, it is checked one time, by one person with no double check by another, and nothing produced that proves that the analysis was done or that the features that are reported as present were in fact objectively present.

Is there empirical validity studies that prove that this is a specific and confirmatory test?

Nope. In fact the empirical studies clearly show the opposite. It is not specific for THC. The reaction is not unique to THC. In fact, the studies clearly show that it is not even meaningfully selective for THC. Chinese motherwort if tested, by this method will turn violet. But that is not all. There are a great many plants that yield similar color results when Duquenois-Levine testing is applied. Yet analysts are taught that is color change is diagnostic of THC. Nakamura himself published and acknowledges that M. J. de Faubert Maunder listed 25 species of plants which exhibited violet to purple colors in the Duqenois test, and were extractable in chloroform, which is the distinguishing features of the Duquenois Levine test. (502) Nakamura tested 23 of those species noted by M. J. de Faubert Maunder. Using the Duquenois-Leine test, he found that the violet to purple color when testing the leaves of the following (502):

• coffee
• a species of gum copal called Caplafer conjugata
• gum Kawri
• wood sage
• Thuja occidentalis
• Sandarac

He published that he tested and found violet to purple color reactions using the Duquenois-Levine test in other plants as well, and not just the leafy portions of these plants. (502). That list includes:

• calamus
• culver root
• ginger
• gum animi
• gum copal
• gum myrrh
• henna
• lettuce opium
• sandal wood
• tolu
• wood betony
• liquorice
• nutmeg
• poison flag

The United Nations study on marijuana concludes that Duquenois-Levine test on substances completely unrelated to marijuana will give false positives too. This includes Arthemisia Grancunulus, Eucalyptus Glabulus Labill and several other herbs that are very common such as rosemary, thyme, and sage.

None of these items above contain THC. Yet, they feature these color changes and some even have the separation when chloroform is added that the analysts are trained to look for when applying these reagents.

While we have examined the propriety and suitability of this modified Duquenois-Levine testing in the identification of THC, we cannot judge this Duquenois-Levine test in isolation. We must remember and in fairness this is a 3 test process and technique. What compounds the issue of the possibility of error is that as the analyst is not using the same sample throughout each of these 3 tests. It is in fact, three different samples are taken of the unknown and each test gets its own sample with no sample receiving the benefit of all three tests. The analyst presumes that the sampling and the sample selection of the unknown is homogeneous meaning that each sample will be exactly identical. This is not a justified scientific assumption (An assumption is not drawn from evidence; it is a hypothesis {my assumption can be tested by looking at the dictionary}. A presumption implies a basis in evidence {the legal presumption of innocence}) Just because the sought after features of the microscopic morphological examination were present in the first sample, that doesn’t necessarily mean that it will be present in the next sample that the analyst now subjects to modified Duquenois-Levine testing.

Nakamura tested and found that mace and nutmeg, which yielded colors similar to that obtained with marijuana with the Duquenois-Levine test, could be “credibly confused” with marijuana based on microscopic appearance. (502)

1. What is the goal and the purpose of testing of unknowns generally? How do we best design a test for marijuana?
2. How is most marijuana testing conducted in the United States?
3. What is microscopic morphological examination? Is it a “good” test?
4. What is the modified Duquenois-Levine test? Is it a “good” test?
5. What is Thin Layer Chromatography? Is it a “good” test?
6. Is the combination of all three tests create a “good” testing scheme?
7. Is there a better way to test for marijuana?

Part 3: What is microscopic morphological examination? Is it a “good” test?

Microscopic morphological examination

What is it?

The microscopic morphological examination in short is an exercise of botanical identification using a microscope.

Mechanically how is it preformed?

A very small amount of the dried unknown is selected. This becomes the sample. The sample is placed on a microscopic slide. A drop or two of water is then added to the slide. The slides are examined at varying levels of magnification and under different light conditions. What the analyst is looking for is two distinct morphological features. They are looking for microscopic “hairs” on the unknown. These are cystolithic hairs and glandular hairs. Cystolithic hairs are often likened to like little bear claws in their appearance.

photomicrographs of cystolithic hairs

The second type of hair is called a glandular hair. These are frequently remarked as looking like mushrooms.

photomicrographs of glandular hairs

Some techniques call for the use of hydrochloric acid after they look for these hairs. A few drops of HCL are added by the analyst. The analyst then looks to see if there is some unspecified effervescence under the light of the microscope.

How is the typical crime laboratory analyst trained to conduct this form of testing?

The question becomes what experience level in botany and taxonomy and microscopy does the analyst truly have? Very few undergraduate programs exist in botany in the United States. Most analysts have on the job training where another person who likewise have no formal training in botany or taxonomy that instructs them. It also involves the use of a microscope. Formal training in microscopy is required in order to use a microscope properly and to properly interpret what the human eye sees through various powers and lighting conditions of the microscope. At the end of the in-house training, the typical analyst cannot typically express the family, the genus and the species that is “marijuana” or at what power and under what lighting conditions they saw the morphological characteristics.

This sample that is examined under the microscope is then discarded. All future or additional testing is conducted on totally different samples from the unknown.

Is this a verifiable test?

It potentially is. There is a device that can be linked to the microscope to take pictures of what the analyst thinks he or she sees. This is called a photomicrograph. In fact the pictures above come from just such a microscope that is equipped with one. A digital camera attached to a microscope is very commonly used in science. They are very moderately priced. As they are digital cameras, the cost of production and printing and data storage is negligible. It is frequently used in other types of comparative examinations such as some higher levels of forensic firearm or toolmark identification. I know of no laboratory in the United States that relies upon microscopic morphological examination that uses modern technology and produces photomicrographs. In fact, few, if any, crime laboratories use the ACE-V (Analysis, Comparison, Evaluation, and Verification) technique that one would find in fingerprint identification using a stereo-microscope and a double check in real time by a fellow bench analyst. In essence, the unknown is checked one time, by one person with no double check by another, and nothing is produced that proves that the analysis was done or that the features that are reported as present were in fact objectively present. There is no proof.

Is there empirical validity studies that prove that this is a specific and confirmatory test?

No. There are no empirical and robust validation studies that conclude that this form of microscopic morphological examination even when the two botanical features (cystolithic and glandular hairs) are objectively present yield a valid opinion that the plant examined is definitely contains THC. There are no studies that say the two features means that there is THC present. In fact, what studies that are out there conclude that this form of morphological examination using a microscope is perhaps not even selective. In the original studies by Nakamura, he indicated that cystoliths of various types are found in the leaves of a number of dicots. (497). He also indicated that the presence of cystoliths is not diagnostic for a family, let alone a genus of plants. (497) Nakamura specifically noted that cystoliths are found on a great number of plants including but not limited to: hops plants (500), oregano (500), lemon thyme (501), silver thyme (501), and rosemary (501). Nakamua he specifically noted 63 “representative” species in 13 plant genera that contain cystoliths in table 5 of his article (501) Nakumura indicated that he made NO attempt to prepare a comprehensive listing of species bearing cystolith hairs similar to those found in cannabis “because of the sheer enormity of the task to examine 31,874+ dicotyledons.” (500). For instance, in one genus found in Table 5 of his article, the Loasa, he specifically noted 9 species that had cystoliths; however, he went on to say that there were actually some 80 species of that genus known to have similar hairs. (501). He fully acknowledged that his listing was not comprehensive. So it is accurate and very fair to say that the 63 “representative” species that have cystoliths that were noted by Nakamura in Table 5 of his article are not an exhaustive list. Other studies agree that at least 6 other substances also have hairs that contain these two features (cystolithic and glandular hairs). In terms of the additional step of adding HCL to the sample and examining for effervescence under the light of the microscope, it is quite clear that other substances can produce the same effervescence when a few drops of hydrochloric acid are added to them. For example nettles and catnip do exactly that.

Some folks maintain and testify under oath every day in the United States that this unverified microscopic morphological examination is diagnostic of identification of THC presence in an unknown. There is no scientific support for this type of testimony.

One thing that every analyst should agree with is that simply because these hairs are present and if they conduct HCL addition and if there is effervescence that does not mean that the unknown contains THC. This is why they have to do additional testing, meaning the modified Duquenois-Levine and Thin Layer Chromatography testing.

What is frequently not part of any morphological examination for cannabis is what botanists have noted to be other features consistent with cannabis. The simplified examination for the typical forensic science identification is purposefully designed to make this examination and conclusions from it easier to perform by non-botanists. As with everything in life, the more criterion attached to qualify something the least likely there will be a qualification. The examination of cannabis and especially a morphological examination by untrained botanists should not be made easy. All of the features that are known to be diagnostic by the world of botany should be used not simply the easy ones. For example, botanists have noted that that cannabis has sessile glands as well as containing serrated edges of the leaves and compound palmate structure meaning several leaflets arise from the same point. The addition of all of the known morphological features known to true botanists as diagnostic of cannabis would make this examination more robust and the result more selective than the simplistic examination that now permeates the forensic science world.