Can a lay witness testify that she could tell just by looking at a substance that it was, in fact, a controlled substance? (Let's assume the witness has extensive dealings with drugs and therefore a basis of personal knowledge, and leave aside the credibility issues that may arise if she has been an enthusiastic consumer of said drugs.) The answer may depend not only on what drug is involved, but also on what form the drug takes. In the context of a cocaine case, powder and crack may not be treated equally. This issue was addressed recently in State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009), reversing for reasons stated in dissenting opinion, 189 N.C. App. 640, 659 S.E.2d 79 (2008). The facts, in brief, were that police detectives found 55 grams of a white, powdery substance in a closet in the defendant's home. The substance was submitted to the lab for chemical analysis, but the lab report was excluded as a discovery sanction. At trial, over the defendant's objection, the judge allowed two detectives to give lay witness opinion testimony that the white powder was cocaine. The detectives' opinions were based on looking at the powder; they did not do any preliminary tests on it and they offered no testimony regarding its taste, texture, or any distinguishing characteristics. A majority of the Court of Appeals found no abuse of discretion, but made it clear that they were not comfortable with their own holding. "It seems to us that [...]
Faculty Coordinators
