What happens when Prosecutors use the testimony of a cop, with no testimony from a laboratory to identify the drug, Marijuana / Cannabis?
|No Lab Report Needed||for Weed in Florida|
Another Florida Court Does Not Require and Expert or a Lab Test to Prove Possession Charges in Tampa UPDATED July 21
If it were otherwise, there would be a substantial amount of litigation on this subject in the federal courts and other jurisdictions that adopted Daubert years ago. Tellingly, the contrary is true. The federal courts—which have followed Daubert since 1993—have long allowed lay testimony to identify illicit substances much as the deputy did in this case. See, e.g., United States v. Robinson, 144 F.3d 104, 108 (1st Cir. 1998) ("[P]roof based upon scientific analysis or expert testimony is not required to prove the illicit nature of a substance." (quoting United States v. Valencia-Lucena, 925 F.2d 506, 512 (1st Cir. 1991))); Robinson v. State, 702 A.2d 741, 745 (Md. 1997) (collecting both federal and state cases supporting the proposition that proof of the chemical composition of an alleged controlled substance need not be established only by chemical analysis but instead may be proved by circumstantial or indirect evidence)."
Florida Law Weekly Case Summary: "Because the Daubert standard regarding the admissibility of expert testimony does not change the long-established rule that lay persons can identify marijuana based on their personal experience and knowledge, the court affirmed. The state laid a sufficient foundation for the deputy's identification of the substance found in his book bag as marijuana based on the deputy's experience and training."
Story of a Typical Marijuana Possession Case in Florida
This case is a typical marijuana possession case. L.L., a juvenile, was charged with one count of simple possession of cannabis under Section 893.13(6)(b), Florida Statutes. At the adjudicatory hearing below, the State relied, in part, on the testimony of Officer Joseph Munecas, who offered his opinion that the substance in question was marijuana. Prior to trial, L.L. requested a Daubert hearing to challenge the admissibility of Officer Munecas’s opinion testimony. The judge declined to hold a pre-trial hearing, but agreed to conduct the hearing during the course of the trial. The prosecutor began by laying the foundation for Officer Munecas’s opinion testimony, asking the officer about his field experience and training.
"Officer Munecas also searched L.L.’s vehicle and found a
rolled cigarette under the front passenger seat.
At trial, and again over L.L.’s objection,
the officer identified the item as a marijuana cigarette . . . . ."
The Court noted:
How did the Florida Marijuana Appeal court Rule?
Florida Statutes, reads as follows:
90.702 Testimony by experts
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
Five Factors of the Daubert Test of Admissibility in Florida
In Daubert, the Court referenced five factors courts could use to determine the reliability of expert scientific testimony:
(1) whether the expert’s theory or technique can be (and has been) tested;
(2) whether the theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error;
(4) the existence and maintenance of standards controlling the technique’s operation; and
(5) whether the technique has been generally accepted in the relevant scientific community.
509 U.S. at 593-94.
The Defense claimed that Officer Munecas’s opinion testimony did not satisfy Daubert’s reliability standard. The State counters by arguing the Daubert factors are “flexible and nonexhaustive.” However, we do not decide this case under Daubert’s expert opinion testimony framework because the admissibility of Officer Munecas’s experience-based testimony is more appropriately analyzed under Section 90.701.
Section 90.701: Lay Opinion Testimony
We begin with the text of Section 90.701, Florida Statutes:
90.701. Opinion testimony of lay witnesses
If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:
(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.
However the Florida court ruled in this case “[a]ll lay witnesses have some specialized knowledge—knowledge relevant to the case that is not common to everyone . . . . Indeed, that is why all witnesses—lay or expert—are called: to get what they know about the case that other people do not.” Paul F. Rothstein, Fed. Rules of Evidence Rule 701 (3d ed.). The text of the Federal Rules offers more guidance than does Section 90.701 because it specifies that lay opinion testimony is not based on “specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701 (emphasis added). With this in mind, the question is not whether the opinion requires specialized knowledge, as all opinion testimony does, but whether the specialized knowledge is sufficiently specialized to fall within the scope of Section 90.702. See Rothstein, supra, Rule 701.
The Advisory Committee Notes to Rule 701 prove instructive on this point, distinguishing between specialized knowledge within the scope of Rule 702 and personal knowledge: “courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established.” Fed. R. Evid. 701 advisory committee’s note to 2000 amendment. This is because “[s]uch testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson’s personal knowledge.” Id.; see also § 90.604, Fla. Stat. (“Except as evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.”)
The lay witness may not rely on hearsay in forming an opinion, but the witness may base the opinion on what the witness has perceived.” (citing Somerville v. State, 626 So. 2d 1070 (Fla. 1st DCA 1993))); Barnes v. State, 415 So. 2d 1280, 1283 (Fla. 2d DCA 1982) (“Section 90.701, Florida Statutes (1979), allows opinions of lay witnesses only when based upon what the witness has ‘perceived.’”).
Here, Officer Munecas’s opinion is based solely on his personal, firsthand knowledge and what he perceived. Cf. Daubert, 509 U.S. at 592 (“Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”). For instance, when asked how he was able to identify the “strong smell of marijuana” coming from L.L.’s rolled-down window,
Finally, we hasten to add that although the more demanding Daubert admissibility standard does not apply to lay opinion testimony, there is nevertheless a reliability inquiry. Not only must lay opinion testimony be based on the witness’s personal knowledge, section 90.604, Florida Statutes, and perceptions, section 90.701, Florida Statutes, but the witness must have sufficient personal knowledge to support the opinion. See Imwinkelried, Distinguishing, supra, at 94 (“[T]he judge must determine whether the extent of the witness’s familiarity is ‘sufficient.’”) (quoting Fed. R. Evid. 901(b)(2) (advisory committee’s note)).7 Here, we have no difficulty concluding that Officer Munecas had sufficient personal knowledge to support his opinion that the substance was marijuana. He testified that he had years of experience identifying marijuana by sight and smell, even going so far as to claim marijuana is so predominant in the community that he sees it “practically every day.”
For the reasons outlined above, we conclude the trial court did not abuse its discretion in admitting Officer Munecas’s marijuana identification testimony in this case. Officer Munecas’s testimony was admissible lay opinion testimony under Section 90.701 because it was based on sufficient personal knowledge and his senses of sight and smell, and it was arrived at through a process of everyday reasoning. We therefore affirm the decision of the trial court.
Third District Court of Appeal State of Florida
Opinion filed April 6, 2016. Not final until disposition of timely filed motion for rehearing.
No. 3D14-2410 Lower Tribunal No. 14-2034
L.L., a juvenile, Appellant,
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Richard Hersch, Judge.