Why It’s Important To Get Drug Lab Info In Drug Cases

To live up to its name, forensic science must conform to the scientific method, which the Oxford English Dictionary defines as “consisting in systematic observation, measurement, and experiment, and the formulation, testing, and modification of hypotheses.” The scientific method seeks above all to prove or disprove hypotheses through testing in order to determine whether a particular conclusion is reliable. If recent history has taught us anything, it’s that forensic science often falls short of this ideal. But we as criminal defense lawyers can’t expose these failings without better information on lab procedures. I have written about cross-examining drug experts here.

The DEA laboratory used by the District of Columbia seems to fight tooth and nail to keep any information that could be used to test or verify its reliability out of the hand of criminal defense lawyers. Without this information, we cannot effectively cross-examine drug analysts. Therefore, it’s very important to fight just as hard to try to get this info.

The National Academy of Sciences (in an essential report you can get here) has stated that there are two very important questions that should be answered to determine whether particular forensic science evidence should be admitted and relied upon in criminal trials:

(1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and

(2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat of bias, or the absence of sound operational procedures and robust performance standards.

The Supreme Court, in Melendez-Diaz v. Massachusetts, quoted the NRC Report at length and recognized that “ forensic scientists . . . sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” “Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Is it a coincidence that the laboratory at issue in this case is the same one that has since been the subject of scandal after it found two analysts who falsified test results? (These two analysts are Annie Dookhan and  Sonja Frank).

The Court further noted that there is “wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.” The Court recognized that “[c]onfrontation is one means of assuring accurate forensic analysis,” and the one means guaranteed by the Sixth Amendment, but surely confrontation regarding techniques, reliability, and how a forensic analyst applied the particular prescribed methodology can only be effective if that information is disclosed to the defense. At the very least, criminal defense lawyers should try to get the following:

Standard Operating Procedures, Protocols, and Methods

Defense access to standard operating procedures and methodologies is important both to allow defense counsel to test the reliability of the standard procedures and methods, and to determine whether the testifying analyst actually followed the standard procedures. These are two main questions identified by the NRC Report as determining the reliability of specific forensic evidence.

Other authorities agree, stating “publication of a laboratory’s work product and data used in . . . analysis, as well as independent replication and validation studies, are essential prerequisites to reliability.”  State v. Schwartz, 447 N.W. 2d 422, 428 (Minn. Sup. Ct. 1989) (citing standards set out by the Technical Working Group on DNA Analysis Methods, a group of 31 scientists coordinated by the FBI). Some commentators suggest that laboratory protocols should be publicly available and even placed on the internet. P. Giannelli, E. Imwinkelried, et al., 1 Scientific Evidence §3.02, p. 160 (5th ed., Dec. 2012).

“[N]o one disputes that the procedures such an expert actually employs are discoverable.” Cole v. State, 835 A. 2d 600, 609 (Md. Ct. of App., 2003). While some methods may be theoretically valid, a particular analysis may fall short. Giannelli and Imwinkelried paraphrase the late scientific expert Melvin Lewis as saying:

“It is no more correct to say that (GC/MS) detects (a drug) than to say that a violin produces music. Unfortunately, it is much easier for unsound scientific opinion to appear valid than for the product of an incompetently manipulated violin to sound euphonic.” 

Proficiency Reports, Calibration and Maintenance Records

Proficiency reports should be discoverable as they are important to help the court determine the weight to give to the forensic analyst’s conclusions. As the court explained in Cole:

The calibration record for the machine the chemist used and the chemist’s own proficiency testing records with regard to the specific testing devices and written procedures are potentially relevant to the case because an improperly calibrated machine or a machine operated by a chemist who was not proficient in its use could lead to an inaccurate result.”

Requesting laboratory information is not a panacea, however. In my recent experience, DC prosecutors have amended charges to “attempted” possession rather than producing this information – in “attempted” possession, the government doesn’t have to prove that the seized substance is an illegal drug, but it does have to prove that the defendant intended to possess a drug.

In some cases, such as where the government is going on a theory of “constructive” possession (the drugs aren’t seen on the defendant, but the government claims defendant has control of them), this raises the burden of proof on the prosecutors a bit. This may put the defense in a better position for trial or make the prosecutors more willing to give a better plea offer. There’s nothing to be lost in asking for this lab info, and much that can be gained.