I tried a possession case last week and entered the pot through the officer. Fine and dandy for the three roaches that he recognized as being in the same or similar condition, but the joint that was summarily torn apart and destroyed was not in the same condition - D atty objected to it, and the judge refused to admit the baggie of pot and rolling paper because my officer couldn't testify as to the different condition of the pot. Yes, the cig box with the roaches and torn-up joint came in a recognizable package sealed with the trooper's signature on the tape.

Was the judge just wrong about refusing to admit the joint?(my thought)and is there a way to get around the destroyed joint?

Thanks.

As an aside, the joint was torn apart to be tested. The judge wouldn't allow the expert to testify as to what it was due to a bogus notice argument from D atty.

As I understand it, your officer seized 4 joints and put them in an evidence bag, which was sent to the lab. At the lab, one of the joints was torn open in order to test the contents. When the officer saw the joints he could not testify about why the 4th joint was torn open. The court would not allow the chemist to testify because you had failed to give notice you were going to use him as an expert witness. Is all that correct?

Your judge's response seems a bit Pickwickian to me. Sounds like what you need is an open file/discovery agreement for your defense attorneys. If they want to have access to your file, and be able to read the offense report, they need to waive Discovery, and all notice requirements. If they sign off on that, they can't complain if you bring in a chemist they didn't know about. They should have figured you'd probably call him from reading the lab report.

BTW, a judge cannot order the state to show the offense report to the defense attorney until a witness testifies at trial who read the report.

"Pickwickian"? Would you use that word in front of a Goliad jury panel?

Jane,

I would, except we don't have any Pickwickian judges around here.

Terry,

I'm interested in your mention of a discovery agreement. Would you be able to share a copy of it?

Terry, thanks. We do have an open records policy, although we also send the contents of the file to the D attorney. I agree that D attorney's ability to view the file at any time should have alerted him to the fact that the pot was tested and even who tested it where. The judge didn't see it my way, and determined that because the D attorney claimed he never received the lab analysis paperwork through discovery sent to him, he wasn't noticed. Which is baloney, in my opinion.

Either way, my original question remains. Recovered from the scene was a few roaches and a joint that was initially whole and in joint form, but post-analyst it was taken apart and my officer was unable to testify that he recognized it and that it had not been altered since the last time he saw it. D attorney objected to the entry of the joint as evidence and the judge sustained the objection, so I was unable to enter the torn-apart joint. The roaches did the trick, as did the jury's viewing the joint in the courtroom as I attempted to enter it.

My initial thought was that the officer said he recognized the unique markings and labeling on the package the joint was sealed in, and went throught the collection and sealing in said package, and that should be enough to enter the joint as the evidence taken from the scene, and that any objection by D attorney should go to the weight and not the admissibility. But, I did see an issue because the analyst couldn't come and testify as to the contents and to the unique markings on the package, thereby authenticating the pot.

Anyone have anything on this scenario?