Use of An Expert Witness in a D.C. Drug or DWI/DUI Case
by Jamison Koehler on March 5, 2010
I used to hire a particular expert witness in Philadelphia on drug distribution cases, a guy named David Leff. Leff was so good — that is, he had so much credibility with judges — that I rarely had to call him to the stand. Sometimes all he needed to do was walk into the room and take a seat in the gallery. The prosecution would then withdraw the felony charges and proceed on simple possession.
There is no need for an expert witness in a misdemeanor drug case. Your client either possessed the drugs or he didn’t. Where an expert witness comes in handy is when your client is carrying a large amount of drugs on his person and the prosecution wants to convict him of felony drug distribution even though your client was never seen engaging in any type of drug transaction. Since the police can’t claim to have actually seen him deliver any drugs, the prosecution wants the judge or jury to infer that, given the large amount of contraband on your client’s person, your client must have possessed the drugs with intent to distribute them. NOBODY could possibly have intended to use that large an amount of drugs personally.
Because, the reasoning goes, addicts use drugs as soon as they buy them. They don’t buy for friends. They don’t buy in bulk, despite the discounts they could get by doing so. No, they are thinking day-to-day, not planning for tomorrow. Users don’t try to minimize the number of trips they make to the drug corner even though they subject themselves to the risk of arrest each time they go.
These are the government’s arguments anyway. And that’s why you need an expert like David Leff. An expert can debunk some of these myths.
It doesn’t help your case if the client had a large amount of money on his person without a credible explanation as to how he or she came into possession of it. After all, as the government’s witness will testify, addicts go through every penny that they have. And you can forget about using an expert if your client was found in possession of “unused packets,” cutting agents, razor blades, or any other paraphernalia associated with the packaging and sale of drugs. After all, the expert has a reputation to maintain. (I would speak of “user” paraphernalia — a crack pipe or bong, for example — but, for some reason, in cases involving a large amount of drugs, those items don’t always make their way onto police paperwork.)
You can sometimes have some fun with the government’s “expert” witness. I put the term in quotation marks because, at least in Philadelphia, the government’s “expert” is often anointed on the spot when the real expert doesn’t show. The officers so anointed are usually experienced narcotics officers, so yes, they do know a thing or two about drugs. But their perspective is derived largely from their experience in arresting people and charging them with drug distribution no matter what the suspect’s actual intentions are.
“No, Your Honor,” the expert will say, lowering his voice for authority. “I have NEVER known a drug user to possess 15 packets of crack cocaine.” No? But, of course, you don’t know my client. You don’t know his drug habits. And you would agree with me that a heavy user of crack cocaine could go through X number of packets in a day, right?
This last question puts you in a no-lose situation. If the witness agrees with you, he or she has just thrown the entire premise of the government’s case into doubt. If he doesn’t agree with you, you can impeach the witness with your expert. Maybe the government’s witness doesn’t know so much about the drug habits of addicts after all.
Making the case that your client is an addict, not a drug dealer, can put you in an awkward position. You are, after all, on the public record. And, by calling the client’s friends or family members to the stand to testify to the client’s drug habits, you are forever memorializing your client’s illegal activities. At the same time, assuming that you have already conceded your client’s possession of the contraband in this particular case, being found guilty of misdemeanor drug possession is a helluva lot better for your client than a felony conviction for drug distribution.
The prosecutor will sometimes spend an inordinate amount of time “qualifying” the witness as an expert. You can turn this to your advantage. Let the expert go and on about how much he knows about drugs and drug distribution. Then test the extent of that knowledge. You can sometimes get him with a simple question. Okay, Mr. Expert. How many grams are there in a pound? How many ounces are there in an “eight-ball”? You may be surprised by how many “expert for a day” witnesses have trouble answering these questions.
If an expert witness is helpful in a drug distribution case, he or she can do even more on a DWI or DUI. Almost everything about a drinking-and-driving case is supposed to reflect hard science. According to the National Highway Traffic Safety Administration, for example, proper administration of the standardized field sobriety test is supposed to indicate a base-line level of intoxication within a reasonable degree of certainty. But, as the training manual used in D.C. to train police officers itself acknowledges, any deviation from the prescribed procedure seriously undermines the validity of test results. Police officers are not always well-trained. And they love to freelance, adding their own particular twists to established procedures.
The science associated with breath tests is even more complicated, as the recent problems with the Intoxilyzer 5000 EN in D.C. demonstrate. Use of a suspect’s breath alcohol content as a surrogate measure for blood alcohol content requires a number of complicated extrapolations. As I have already discussed elsewhere on this blog, any problem in calibrating or operating the machine would undermine the validity of test results. Again, that’s where expert testimony comes in.
Expert witnesses are unfortunately very expensive. Not everyone can afford one. An expert for a DWI case in D.C., for example, will cost thousands of dollars. At the same time, it is almost always money well spent. It can sometimes be the difference between conviction and acquittal.