Drug offenses. Special Rules of Evidence
Information on drug offenses. Special rules of evidence:
- The laboratory report qualifies as a business record or public record exception to the hearsay rule and can be admitted into evidence once its authenticity is established. MRE 803(6) and (8); United States v. Evans , 45 C.M.R. 353 (C.M.A. 1972); United States v. Miller , 49 C.M.R. 380 (C.M.A. 1974); United States v. Strangstalien, 7 M.J. 225 (C.M.A. 1979); United States v. Vietor , 10 M.J. 69 (C.M.A. 1980).
- The admission of a laboratory report into evidence as either a business or public record does not give accused an automatic right to the attendance of the person who performed the test. Rather, the accused must make a showing as to the necessity for producing the witness. United States v. Vietor , 10 M.J. 69 DA Form 4137 (the chain of custody form) is admissible as either a business record or public record exception to the hearsay rule. MRE 803(6) and (8). Contra United States v. Nault , 4 M.J. 318 (C.M.A. 1978); United States v. Porter , 7 M.J. 30 (C.M.A. 1979); United States v. Neutze , 7 M.J. 32 (C.M.A. 1979); United States v. Oates , 560 F.2d 45 (2nd Cir. 1977); United States v. Helton , 10 M.J. 820 United States v. Scoles , 33 C.M.R. 226 (C.M.A. 1963).
- When dealing with fungible evidence such as drugs, military courts have traditionally required that an unbroken chain of custody be established to show that the drugs seized were in fact the drugs tested at the lab, and that they were not tampered with prior to testing. The Court of Military Appeals broadened this approach and declared that even fungible evidence may be introduced without showing an unbroken chain of custody so long as the government can establish that the substance was contained in a “readily identifiable” package and that the contents of that package were not altered in any significant way. United States v. Parker , 10 M.J. 415 (C.M.A. 1981); United States v. Lewis , 11 M.J. 188 (C.M.A. 1981); United States v. Madela , 12 M.J. 118 (C.M.A. 1981); United States v. Ettelson , 13 M.J. 348, 350-51 (C.M.A. 1982). See generally United States v. Morsell , 30 M.J. 808 United States v. Hudson , 20 M.J. 607 (A.C.M.R. 1985).
- The chemical nature of a drug may be established without the aid of a laboratory report or expert witness but with the testimony of a lay witness familiar with the physical attributes of the drug. United States v. Tyler , 17 M.J. 381 (C.M.A. 1984) (lay witness qualified to testify what used was cocaine despite alcohol intoxication at time of use). Tests administered by investigators to determine lay witness’ ability to identify drugs were relevant to ability to identify drugs at time of use. Id .; United States v. Coen , 46
- M.R. 1201 (N.C.M.R. 1972) (accused’s statement); United States v. Torrence , 3 M.J. 804 (C.G.C.M.R. 1977) (accomplice witness); United States v. Watkins , 5 M.J. 612 (A.C.M.R. 1978) (informer and CID agent); United States v. Jenkins , 5 M.J. 905 (A.C.M.R. 1978) (accused’s admission is not enough to establish nature of drugs without corroborative evidence); United States v. White , 9 M.J. 168 (C.M.A. 1980) (accused’s corroborated extrajudicial statement); United States v. Morris , 13 M.J. 666 (A.F.C.M.R. 1982) (transferee and witness); United States v. Jessen , 12 M.J. 122, 126 (C.M.A. 1981) (“simulated smoking” by undercover agent); cf . United States v. Hickman , 15 M.J. 674 (A.F.C.M.R. 1983) (witness merely calling the substance “marijuana” at trial insufficient); but see United States v. LaFontant , 16 M.J. 236 (C.M.A. 1983) (if evidence insufficient to identify substance beyond a reasonable doubt, accused may be guilty of an attempt).
- The buyer in a drug sale case is an accomplice, and the defense is entitled to an accomplice instruction. United States v. Hopewell , 4 M.J. 806 (A.F.C.M.R. 1978); United States v. Helton , 10 M.J. 820 (A.F.C.M.R. 1981); United States v. Scoles , 33
- M.R. 226 (C.M.A. 1963). No such instruction is required if buyer was Government informant. United States v. Hand , 8 M.J. 701 (A.F.C.M.R. 1980), rev’d on other grounds, 11 M.J. 321 (C.M.A. 1981); United States v. Kelker , 50 C.M.R. 410 (A.C.M.R. 1975). K. Defenses.