Document Category: Testimony about Drugs

This motion argues that evidence of a client’s alleged substance use must be excluded because it constitutes impermissible character evidence under FRE 404(a), poses a high risk of unfair prejudice under FRE 403, and invites unqualified medical opinion testimony in violation of FRE 701. Citing social-science research showing that jurors associate substance use with immorality, violence, and dishonesty, the motion argues that such evidence leads jurors to condemn defendants based on stigma rather than proof of guilt, rendering the evidence unfairly prejudicial. Finally, it explains that terms such as “addict,” “dependence,” and “abuse” describe medical diagnoses that only qualified experts may offer, rendering lay testimony about addiction inadmissible.

This draft motion should be used to combat a probable cause finding predicated on a dog sniff if there is any indication that the dog’s handler prompted the dog (intentionally or unintentionally) to alert through a head nod, verbal command, repeated searches, etc. The motion relies on social science research about how readily dogs respond to subtle handler prompts.

This motion relies on the Federal Rules of Evidence to argue for exclusion of police testimony about the behavior of drug traffickers. Pages 13-14 rely on social science to argue that users of fentanyl, methamphetamine, and cocaine consume large quantities of each of those drugs daily to support their habit such that courts cannot infer distribution from larger amounts. Pages 15-16 collect national data to refute the suggestion that drug traffickers typically possess firearms.

This motion argues that, because the routine imposition of marijuana testing as a condition of release is at odds with the current legal, social, and scientific understanding about the risks posed by marijuana use, courts should exercise discretion and not impose a marijuana testing requirement as a pretrial condition of release unless there are specific reasons, beyond mere past or potential use of marijuana, that such use would be dangerous or lead to a failure to return to court.

Pgs. 2-7: discussing changes in federal marijuana enforcement to argue that the federal government no longer views marijuana use/possession as inherently dangerous

Pgs. 9-10: describing racial disparities in marijuana possession enforcement and documenting how Black people are disproportionately arrested for possession while white business owners profit from the marijuana sales industry

Pgs. 11-12: arguing that general marijuana testing requirements are inefficient and divert scarce resources from efforts that actually impact public safety

Draft motion arguing that finding many grams of methamphetamines does not necessarily support a conviction for possession with intent to distribute. Bottom of p. 1 through p. 3 explains that people addicted to methamphetamines use more frequently and in higher dosages than first-time users, using as much as one gram per day and rarely (but at least once) up to 15g in one day. Thus a person found with many grams of meth may only be a user rather than a dealer.  This data could also be used in other arguments, including: (1) a suppression argument that there is no probable cause to search a location for evidence of distribution when the quantity recovered or known about only suggests personal use; (2) a Rule of Evidence 403 argument limiting the testimony of a witness who wants to characterize a given quantity of meth as “a lot of drugs” or who wants to describe the client as a drug dealer or distributor; (3) a sentencing argument that a client is not as much of a danger to their community as someone actively selling drugs, despite the amount of drugs found.

Pages 1-4 discuss the history and development of the DRE program; pages 6-10 explain how the DRE test fails Rule of Evidence 702 because it does not assist the trier of fact to understand a fact in issue and the officers who testify about it are not qualified in the relevant field of knowledge; and pages 11-26 explain why the DRE protocol fails each of the five Daubert factors.

p. 22-38 discuss the use of 404(b) “other acts” evidence and why evidence of drug possession is not relevant to intent to distribute drugs. The brief goes on to outline research demonstrating that such “other acts” evidence is highly likely to improperly prejudice the jury in a way that cannot be cured by a limiting instruction.

p. 10-12 discuss a study that found that people with normal smell identification abilities could only smell a 5-pound bag of marijuana in a trunk 13% of the time, and that 10% of the time people thought they smelled marijuana when there was none. p. 12-13 argues that an officer can impermissibly taint a search by suggesting that he smells marijuana, similar to tainting a lineup by suggesting the suspect to the witness.