OHIO TOP COURT RULES ON DRUG CASE WITNESSES

COLUMBUS - An experienced pot smoker is as qualified as any expert to
identify marijuana in a courtroom, but that ability doesn't extend to just
any lay person, the Ohio Supreme Court ruled yesterday.

In a unanimous ruling, the court said two Marion County eighth-graders who
testified to smoking a marijuana cigarette with Cassandra N. McKee in May
1999 lacked the experience and personal knowledge to recognize the drug.

McKee was convicted on two counts of corrupting the girls with drugs. The
Supreme Court agreed with an appeal of that conviction, saying the two
eighth-graders did not qualify as "drug user lay witnesses."

Officials had no physical evidence in the case and had relied on the girls'
testimony to convict McKee.

"There was no evidence as to how many prior experiences the girls had had
with the drug," Justice Francis E. Sweeney Sr. wrote. He noted that one
girl said she "assumed it was" marijuana, and that both girls testified the
cigarette was in "joint" form without noting the appearance of the drug itself.

Although the court disqualified the girls' specific testimony, the justices
did acknowledge that it was not necessary for police to seize a controlled
substance for expert analysis in order to prove what it is.

"The experience and knowledge of a drug user . . . can establish his or her
competence to express an opinion on the identity of a controlled substance
if the foundation for this testimony is first established," Sweeney wrote.

Dan Shifflet, who defended McKee at trial, said lay witnesses in drug cases
were nothing new.

"If you've been smoking dope for 20 years, you can testify as to its look,
feel and smell and how it affects the human body," Shifflet said. "This
trend [toward lay witnesses rather than lab tests] started really with the
government, with police officers who could identify drugs through seeing
the same thing repeatedly. After police officers came drug addicts."

Shifflet said drug users who are witnesses in a court case were at little
risk of incriminating themselves by revealing their experiences.

"I doubt very seriously, if you're laying a foundation and using a person
as a lay witness, that anything's going to come back on that person," he said.