Case o' The Week: Visiting Judge Upholds Pothead's Testimony, Durham

An experienced pot user can identify marijuana -- but needn't be an "expert," says the Ninth. United States v. Durham, __ F.3d __, 06 Cal. Daily Op. Serv. 11883 (9th Cir. Sept. 22, 2006), decision available here.

Players: Decision by Judge Pollak, a visiting ED PA district court judge who executed a remarkably dramatic (and inexplicable) flip-flop on an early and important fingerprint case. Compare Yale post on original great fingerprint decision, here, with, report of Pollak's bewildering self-reversal, here.

Facts: Witness Brandy Nichols had smoked lots of marijuana – including sharing pot from a water bong with her friend, defendant Jessica Durham. Id. at 11886. She became upset, however, when her friend gave hits of pot to Durham’s 18-month old daughter. Id. at 11887. (Not too upset, however, to keep Nichols from returning to the bong herself afterwards.) Id. at 11888. Nichols took pictures of the little girl with her lips to the bong, then turned her friend in and testified against her at trial.

Issue(s): “Before trial, Ms. Durham sought to preclude Ms. Nichols drug identification testimony – that is, Ms. Nichols testimony that the burnt residue smoked by Michala was, in fact, marijuana. Ms. Durham argued that, as a lay person, Ms. Nichols lacked the expertise required to give that type of opinion testimony. The District Court ruled that, under the circumstances, while Ms. Nichols would not be deemed a ‘scientific expert in drug identification,’ she would be allowed to provide lay opinion testimony regarding the identity of the substance at issue.” Id. at 11889.

Held: “[T]here was no question as to Ms. Nichols’s familiarity with marijuana . . . . Ms. Nichols’s testimony was thus based on her personal knowledge, and her first-hand, multi-sensory interaction with the substance in question: Ms. Nichols viewed the contents of the water pipe used by Michala, and Ms. Nichols then smoked from the pipe, which afforded her the opportunity to smell, taste, and experience the effects of its contents.” Id. at 11893.

Of Note: Though she lost on the evidentiary issue, the defendant Jessica Durham won on an interpretation of mandatory minimums and got a reduction from five to two years. Id. at 11902. Nice victory for Antony Gallagher and Steven Babcock of the Montana Defender, though the two year mandatory minimum still seems steep for the mother of this toddler. (Why did the Montana USAO make this a federal case in the first place? Seems like the classic state court case -- note that the crime it was initially reported to state agents. Our Federal Government at work).

How to Use: As unusual as this case is (particularly for federal court), it does have a discussion of FRE 701 and lay witness testimony that will extend beyond these narrow facts. The Ninth discusses the 2000 amendments to Rule 701, and the advisory committee notes that discuss the admissibility of the testimony of meth users as lay witnesses. Id. at 11892. Thus, under the amended federal rules potheads and speed freaks can opine about drug identity based on their “expertise” with controlled substances -- without qualifying as experts. This irony is particularly troubling in this case, when the substance in the bong was never forensically tested and the little girl tested negative for marijuana.

For Further Reading: This case has inspired a predictable flurry of internet activity. There’s a more-detailed description of the one day trial in a Billings paper. See article here. Some bloggers express frustration at the reduction of the five year sentence. See post here. Others seemed shocked by the “whopping” five year sentence originally imposed. See post here.


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

.