P v. Stamps (1st Dist, Div.4) Expert Testimony Identifying Pills as Narcotics Based Upon a Web Site Was Inadmissible Hearsay

In  2012, the police searched Ms. Stamps' car and found the following: [1] a crystal solid suspected to be methamphetamine, [2] a powder suspected to be cocaine, [3] two yellow pills with "V" on one side and "Watson" on the other, [4] six white pills with "Watson" on one side and "853" on the other, [5] one yellow pill with "853", and [6] one white pill with "Watson 953".

Stamps was charged with possession of methamphetamine, possession of cocaine, possession of oxycodone, and possession of dihydrocodeinone.  The star witness at trial was a state criminalist.  She testified she chemically analyzed the crystals and powder with results confirming the crystals contained methamphetamine and the powder contained cocaine.  So far, so good.  Then she testified that to identify the chemical content of the pills, she went to a website called "Ident-a-drug" and visually compared the pictures of pills on the website with the pills found in Stamps' car.  Because Stamps' pills looked like the oxycodone and dihydrocodeinone pills on the website, she testified Stamps' pills contained oxycodone and dihydrocodeinone.  The jury convicted Stamps on all charges and she appealed.

The First District reverses the oxycodone and dihydrocodeinone, but finds that a retrial would not violate the Constitutional proscription against double jeopardy.

The portion of the opinion reversing the pill convictions contains a solid analysis.  The double jeopardy portion has a problem (as we'll see).

The criminalist's pill testimony gives rise to numerous legal issues, including hearsay, the Kelly/Frye foundational issue of whether visual id via website is a generally accepted method of determining the chemical composition of a pill, and when information displayed by a computer is testimonial.  Admirably the panel limits its analysis to the hearsay issue and leaves the remaining issues for another day.

The panel finds the hearsay issue is controlled by the California Supreme Court's recent decision in P v. Sanchez.  Prior to Sanchez, when an expert witness testified about out-of-court statements upon which she relied in forming her opinions, those statements were deemed "non hearsay" because they were not being offered for their truth, only to explain the expert's opinion.  Such testimony would often occur when a police officer provided expert testimony that a defendant was a gang member.  It would go something like this.

Q:  Officer do you have an opinion on whether Mr. Smith is a member of the Aryan Brotherhood?
A:  Yes.
Q: Upon what facts do you base your opinion?
A:  In 1994, Mr. Smith was involved in a prison riot started by the Aryan Brotherhood.  In 1996, he was arrested for driving without a license and there were four other members of the Aryan Brotherhood riding in his car.  In 2000, he was arrested for a bar fight between the Aryan Brotherhood and the Hell's Angels.  Also, I'm told he has numerous tattoos on his body associated with the Brotherhood.
Q:  So based upon Mr. Smith rioting with the Aryan Brotherhood, fighting on behalf of the Brotherhood against their rival the Hell's Angels, having Aryan Brotherhood tattoos, and traveling with other Brotherhood members, what is your opinion as to whether Mr. Smith is a member of the Aryan Brotherhood?
A:  He is a member.

Often, the testifying police officer had no personal knowledge of the facts to which she testified.  She was not present at the prison riot, the bar fight, or the traffic stop.  She may not even have personally observed Smith's tattoos.  Often, her testimony was merely the recitation of events about which she had read in police reports and other government documents.  Prior to Sanchez, such statements were nevertheless admissible under the legal theory that they were not being offered for their truth (whether Smith actually rioted, was arrested with other Brotherhood members, had gang tattoos, etc.) but only to explain the police officer's opinion.

Sanchez changed that and you can probably see why.  Such testimony is irrelevant if not true.  Unless you first assert, "Smith actually did these things", the police officer's expert opinion makes no sense.  It perhaps only makes sense to lawyers (a sure warning sign) to say, "these events may or may not have happened and you're not to consider whether they did because the only evidence of these events is not offered for the truth, but you may find Smith guilty of a gang crime based on the officer's opinion despite such opinion being entirely dependent upon the truth of the events, of which there has been no evidence introduced".

Wisely, the California Supreme Court decided that this theory was excerebrose and held that such case-specific testimony is really being offered for its truth and therefore is subject to the evidential rules concerning hearsay.

With this background, the panel in our case determines that the information from the "Ident-a-drug" website was hearsay.  And as there was no applicable exception to the general rule that hearsay is inadmissible, it was error to allow the criminalist to testify to the composition of Stamps' pills based upon the website information.  The panel then finds that the record, stripped of the inadmissible website evidence, contains insufficient evidence to support a conviction.  So it reverses Stamps' pill convictions.

Now the bad.  Following the reversal the question arises of whether it would violate the prohibition against double jeopardy to give the State another crack (pun intended) at convicting Stamps.  The rule is found in the U.S,. Supreme Court opinion in Lockhart v. Nelson.  If the total evidence admitted at trial, admissible and inadmissible, is sufficient to support the verdict, retrial is permitted.

Here, the panel's reasoning in part 3 of section A, appears irreconcilable with its conclusion in section B.  In section A, it states:

 [T]he Ident-A-Drug testimony was the only evidence that the pills actually contained the controlled substances (italics added)

Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation.”(citation omitted). 

Moreover, “hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules . . . .” (citation omitted).  

So, according to the panel, the sole evidence that the pills were illegal was a website.  Also according to the panel, websites are not inherently accurate nor subject to independent verification, making them adequate for almost anything.

Except a finding of truth beyond a reasonable doubt.  Yes, after writing the above, the panel remands for a retrial, concluding,

Acceptance by the jurors of the veracity of the Ident-ADrug results was not so misguided as to render the guilty verdicts among those that no “rational fact finder” could render. 

Does this mean this panel would also conclude that a "rational factfinder" could return a guilty verdict against Hillary Clinton for the murder of Vince Foster if a police officer took the stand and testified that she read from numerous websites that Clinton's fingerprints and DNA were found on the gun that killed Foster?