Identifying the Enemy in the War on Drugs: A Critique of the Developing Rule Permitting Visual Identification of Indescript White Powders in Narcotics Prosecutions
56 Pages Posted: 12 May 2008
When the actual substances have been lost or were never recovered, a number of jurisdictions have allowed criminal prosecutions for possession of a controlled substance to proceed based on an officer's lay opinion testimony that based on visual appearance, a particular power or crystalline substance was, say, heroin, methamphetamine, or cocaine. This article challenges this line of cases, first on the ground that there is no scientific basis for visual identification of powders--it is impossible to tell just by looking what chemicals a white powder contains, particularly because almost all street drug sales involve mixtures. In addition, the existence of statutes prohibiting sales of counterfeit or imitation substances reflect the reality that many sales of what appear to be drugs in fact involve non-controlled substances. Accordingly, this form of opinion testimony should not be admitted in a prosecution where an element of the offense is possession of an actual, particular controlled substance.
Keywords: drugs, narcotics, evidence, lay opinion, war on drugs
JEL Classification: K14
Suggested Citation: Suggested Citation