James Shellow: Cross-Examining the Analyst in a Drug Prosecution

There are certain reference materials that are essential to a law practice.  In the case of a criminal defense practice in D.C., for example, you could not get by without the D.C. crimes code, jury instructions, rules of evidence, sentencing guidelines, the two volumes of the Criminal Practice Institute’s manual, and some type of legal research service.

In addition to these items, there are the discretionary reference materials you would like to have in your library. The best purchase I ever made in this regard was the two-volume set of McCormick on Evidence which, if I recall correctly, cost me a couple hundred dollars.  The Lawrence Taylor/Steven Oberman treatise on drunk driving and the Wayne LaFave hornbooks on Criminal Law and Criminal Procedure have also been worth every penny I spent.

These books aside, many of the reference materials I have invested in have turned out to be a disappointment.  You see the book on-line or somebody tells you about it and, after checking out the table of contents and index, you conclude that this book is exactly what you need. In fact, you wonder how you ever survived so long without it.  When the book arrives, you realize that you have just paid a lot of money for essentially filler material.

I recently overcame my skepticism in deciding whether or not to invest in a reference material when I bought James Shellow’s Cross-Examination of the Analyst in Drug Prosecutions. The book came highly recommended by my friend and colleague, Noah Clements. Also contributing to my decision to buy the book was the fact that Shellow was cited in Melendez-Diaz as part of Justice Scalia’s argument on the subjectivity of drug analysis.

The book is far from perfect. First of all, at $149, the book is overpriced even by the standards we have come to expect with legal reference materials. The book itself is only 204 pages, with another 50 pages in the appendix.  And much of the text in the body of book consists of sample cross-examinations drawn from Shellow’s transcripts.  Even Clements, who recommended the book, said he was surprised by how thin the book was when it arrived.

Moreover, referring to the book as a “complete guide to what has been called the chemical defense,” the description on the Lexis-Nexis website overpromises what the book actually contains. For example, although the description claims that the book provides a “thorough explanation of the scientific principles behind drug identification and of the role of the drug analyst,” Shellow himself says in the opening paragraph of the book that “this is not a ‘how to do it’ book” but a “how to think about doing it” book.  I for one could have used a lot more detail on the science and methods behind the forensic analysis of controlled substances.

These caveats aside, I have to say that I did learn a lot from this book. Shellow begins with a persuasive argument for challenging more drug cases at trial. We litigate lengthy pre-trial motions challenging the legal basis for the stop itself only to concede at trial one of the actual elements of the offense; namely, that the substance is what the government claims it to be.  The fact is, we accord far too much deference to the government witness, in some cases not even requiring him or her to testify.  Writes Shellow:

In drug prosecutions the opinion of the analyst concerning the identity of the suspected drug proves an element of the crime. The jury must believe the analyst for the prosecution to secure a conviction. Defense counsel’s failure to cross-examine the prosecution analyst concedes that this element has been proven.

As a long-time criminal defense attorney, Shellow displays a healthy skepticism when it comes to an analyst’s competence and honesty:

The crime analyst cannot be understood as a scientist . . .[but as] an analyst or technician; as someone who conducts a form of analysis that is subjective and defies description, a form of analysis that follows not a hypothesis, but rather leads to a predetermined conclusion.  At its crudest, his is a confidence game.

Shellow spends some time reviewing past procedures, including the use of color reagents and column and thin layer chromatography, in support of his argument on the subjectivity of drug analysis.  He then turns to more current techniques, including gas chromatography and mass spectrometry, to show that things really have not changed all that much:  the process is still very subjective.

The analyst will perform a spectrometric analysis of the substance in question and then compare its spectrum with the spectrum of a standard.  If he concludes through this eyeballing analysis that the spectra are sufficiently similar, he will testify that in his opinion the suspected drug is the same compound as the standard.  At the same time, because two spectra of even the same sample by the sample spectrometer will never produce identical spectra, the analyst can never really say anything for sure.  And because he does not have the training to discern the molecular structure of a compond by examining its spectrum, he will not be able to distinguish between significant spectral differences and the insignificant ones:

In the absence of an understanding of the significance of spectral peaks, their standard deviation, and the confidence limits of the identity hypothesis, an analyst is unable meaningfully to answer the definitional question, “what is sufficiently similar?”  He cannot articulate how similar two spectra must be to warrant an opinion that they are spectra of the same substance – or at least he cannot articulate that with any objectivity.  At best, he is left to legerdemain or a claim of magic; to the equivalent of “I can’t say how, but I know it when I see it.”

Finally, Shellow’s insights into cross-examination also apply to other areas, particularly when you are dealing with a complicated subject matter:

In part the art of cross-examining an analyst lies in asking apparently simple questions which do not have simple answers; or questions which may have one meaning to the jury and a different meaning to the analyst.  The simplicity may be conveyed by the questioner’s use of common parlance or slang; it may be conveyed by simple hypothetical questions; it may be conveyed by the suggestion that most people would know the answer.