Thursday, May 04, 2006

AD4: insufficient foundation for expert junky testimony

People v Freeman, __ AD3d __ [available here]

The defendant in People v Freeman was charged with possessing 18 baggies of crack with the intent to sell. At trial, the People offered the testimony of the arresting sergeant, who opined that the amount of drugs possessed and the manner of packaging was inconsistent with personal use (and therefore the drugs must have been possessed with the intent to sell). (Freeman, __ AD3d at __.) To counter this testimony, the defendant tried to call a reformed drug addict, who prior to becoming a drug counselor was an active crack addict for 15 years, who would opine that drug users often buy in bulk and the possession of 18 nickel bags of crack can be consistent with personal use. Prior to allowing the testimony, the trial court asked for an offer of proof; here's what defense counsel placed on the record:

[The witness], to my understanding and knowledge is a reformed drug addict. He has been clean now for approximately six years to my understanding. Before that he was addicted to cocaine and other drugs for approximately 15 years; pretty much has had a general knowledge as to drug trafficking out on the street; how drugs were packaged, how drugs were purchased, that people on or with a cocaine addiction would purchase in quantity for their own personal use as opposed to because they wanted to sell, and given [the sergeant] being allowed to offer his opinion in support of the 1st count of the indictment, it would basically be our intention to have [the proposed witness] offset that with his own personal knowledge of drug trafficking here in the Rochester area.

(Respondent's brief at 6.)

The trial court did not allow the defense to call the reformed drug addict. As an aside, drug addicts are allowed to give expert opinion testimony in drug cases in New York; just this packet, the Fourth Department handed down a decision reaffirming that, "'In situations where the illegal substance is not available for analysis, drug users who can demonstrate a knowledge of the narcotic are competent to testify. It is for the jury to determine the weight to be given the testimony.'" (Fulton, __ AD3d at __ [quoting People v Christopher, 161 AD2d 896, 897].)

On appeal, the Fourth Department did not rule out the possibility that drug addicts could give opinion testimony on the "personal use" question in drug cases; however, the Court did find defense counsel's offer of proof lacking in Freeman. From the decision:

We conclude that defendant failed to present a sufficient foundation for the testimony of that witness with respect to the knowledge, training and reliability of the witness concerning the issues of personal use and packaging for sale. Defendant failed to provide any information with respect to the extent of the proposed witness's drug counseling and, indeed, defense counsel conceded that the proposed witness had no training or eduction in the area of drug counseling. In addition, defendant failed to present a sufficient foundation establishing that the proposed witness was "qualified to speak from actual experience, from observation or from study."

(Id. at __.)

It is true that defense counsel's offer of proof in this case painted in broad strokes--but if being a crack addict for 15 years does not give you the "actual experience" to opine as to whether a certain amount of cocaine is consistent with personal use or not, what does? And how detailed does a defendant have to get? And at what point does requiring a detailed offer of proof deprive a defendant of his constitutional right to present evidence in his defense?