In case you missed it, the COA released State v. Booth on Oct. 18, 2022, dealing in part with lay opinions by officers identifying marijuana as such based on sight and odor only and without a proper lab test identifying the levels of delta-9 THC.
The officer in Booth was permitted to testify that he could visually distinguish hemp from marijuana, and that he could smell the different THC levels. Slip op. at 3. Needless to say, that testimony is patently false, as smelling THC levels is impossible (as is visually distinguishing the two). This testimony was not objected-to, and any challenge based on Rule 702 of the Rules of Evidence was consequently waived for appellate review. Please do not let this happen in your cases. You must object on 702 grounds. You cannot just sit back and argue insufficient evidence at the motion to dismiss stage. When there is ANY evidence identifying something as drugs, that is going to be sufficient evidence to survive the motion to dismiss at the close of evidence per State v. Osborne. It is critical that you raise a 702 objection and preserve it at trial by objecting in front of the jury. This applies to all drug cases and not just marijuana—in Osborne, the improper identification evidence was lay opinion visually identifying heroin and field tests—but it certainly applies in cases involving alleged marijuana that hasn’t been tested for delta-9 levels.
The best practice for any case involving untested cannabis is to present testimony of an expert of your own. If you’d like a copy of a transcript of Dr. Fred Whitehurst’s testimony on the subject in State v. Price, email Sarah Olson for the transcript. Short of presenting expert testimony, please at least object and raise the 702 challenge that sight and smell—and certainly “smell of THC levels”—are not reliable methods of identifying anything. There is a case at the NCSC right now, State v. Arthur, that challenges the Fletcher rule (allowing identification of marijuana by sight and smell) and could soon change the landscape here. The defendant’s brief in State v. Arthur is available here and may be helpful in your arguments. Meanwhile, this kind of nonsense testimony should never be allowed to go unchallenged. Make your objections and object again at trial in front of the jury.
Sarah Olson and I routinely consult on these cases, so if we can help, please reach out.