In a Murder prosecution, can the defense attack the deceased victim with the use of the toxicology report done at the autopsy that shows levels of cocaine? Defense is claiming self defense.

Any help would be appreciated.

Assuming the toxicology is admissible otherwise, which it probably is for a number of reasons (since they are obviously aware of the report, the defense should be able to find the proper witnesses if they want to), then those results might show that the victim was under the influence of cocaine at the time of death. You'd have a hard time keeping that out on any relevance challenge, I would think.

[This message was edited by WHM on 01-15-08 at .]

I recently briefed a claim that the presence of cocaine metabolites in a deceased victim's urine was admissible to show that the victim was the first aggressor. Moore v. State, No. 10-06-00319-CR, 2007 WL 4260446 at *2-3 (Tex.App. - Waco December 5, 2007) ("There is nothing in the record that connects the possession and use of marijuana and cocaine to Hill's alleged violent acts or that he was the first aggressor."). Shoot me an e-mail if you'd like a copy of our brief.

On that note, you should talk to your ME about the toxicology. Depending on what the report shows, the presence of metabolytes alone may not indicate cocaine intoxication at the time of death, since the metabolytes will remain in the system far longer than the influence of the drugs will last. You may be able to counter the assertion that the victim was high before the question even gets asked if the toxicology is inconsistent with that theory.

Mr. Culr,

As a matter of fact I had the toxicology report thrown out of court based on the Moore case. However, can you please email me a copy of your brief to lawserg@hotmail.com. Thanks in advance.