NC Court of Appeals allows identification of marijuana* offered without objection

Posted by Sean P. CecilOct 19, 20210 Comments

Objections are a crucial component of establishing a legal argument. If a party does not object to the admission of evidence, it will usually be admitted. Any appellate review of the issue will be significantly curtailed, and the appeals court will only consider "plain error" review- whether a "fundamental error" occurred in allowing consideration of the evidence. In an unpublished North Carolina Court of Appeals opinion today, the court declined to find that allowing an officer to testify regarding the identity of alleged marijuana was not reversible under plain error review. Citing multiple historical cases that have allowed police to identify cannabis based only upon their "training and experience", the Court ruled that allowing the testimony (which was not objected to during trial) was not reversible error. Unpublished opinions generally have limited value as legal precedent, but can be instructive.

Of course, with the proper objection, the outcome may have been different- a lay witness should no longer be allowed to testify regarding whether a particular substance is cannabis because cannabis and legal industrial hemp are indistinguishable. A proper objection would assert that precedents that pre-date the legalization of industrial hemp are no longer legal authority. In support of that argument, a defendant can (if still necessary) probably present the State Bureau of Investigation memorandum on the issue from a couple years ago. The memo is still available on the North Carolina School of Government website; I've been able to get it admitted in Superior Court under hearsay exception for "Public Records and Reports", ER 803(8). The document could also arguably be a statement against interest when the state is attempting to admit an officer's lay testimony regarding the identify of a substance they claim is marijuana.

Evidence that is not objected to is evidence that is admitted. If you or someone you care about is facing criminal charges, make sure you hire a lawyer who has plenty of jury trial experience and knows when to object to testimony or other evidence that should be inadmissible. We handle misdemeanors and felonies in Wake County courts, as well as felonies in state and federal courts throughout North Carolina. We offer free consultations on criminal matters, just give us a call.