Independent Lab Retesting: When It Is Worth the Money.

In federal criminal cases, the government is required to prove every element of the offense charged beyond a reasonable doubt. If the government is not able to prove even one element, it must result in a not-guilty verdict. This means that where a single disputed forensic result goes to a specific element, independent retesting is especially pertinent, particularly when this is the only forensic result the government is able to obtain and is relying on to meet its burden. Disputed forensic results can also play similar roles in plea negotiations and trial strategy. As a result, independent retesting, even though it requires an additional expense, will be worth the cost if the result of the testing will play a role in a defense team’s efforts to secure a dismissal, secure a plea, or secure an acquittal at trial. How much does a federal criminal defense cost? Federal criminal defense costs can vary significantly due to several factors. The level of complexity, volume of evidence, lead counsel, location, and distance to a trial venue, among others, all play a role in determining the costs involved. As federal defense lawyers, we can explain these factors to our clients in more detail, and we are able to provide tailored defense options based on the circumstances presented. While retesting is a useful strategy to consider whenever it could potentially help a defense team, it should never be viewed as a guarantee. Retesting is, at most, a means to an end, and it does not automatically result in a dismissal, acquittal, or any reduced criminal exposure. Our team has the tools, skills, and experience to handle a retesting situation if it is in the client’s best interests, but as we tell all of our clients, there are no guarantees in any criminal case. We must do what we can with the options we have, and sometimes that includes challenging the government’s evidence in court, but even that does not offer a certainty of success.

Which forensic results make retesting financially rational?

Recovered suspected drugs are commonly sent to crime laboratories. After tests are run and their results obtained, laboratory analysts are often called upon to testify at trial about whether the seized substances match the alleged illicit drugs. While laboratory tests can produce incorrect results, mistakes made on chemical field tests are a bit more common. In early 2014, field-test errors in Florida led to fifteen wrongful drug arrests. These types of errors are caused by many factors, but one cause of field-test mistakes is that the results are not very specific. Chemical field tests use reagent color change to suggest the presence of the suspected illicit drug. The specific reagents used are chosen because they react specifically to the drug in question. However, if any other substance reacts in a similar manner, the test can yield an incorrect result.

In cocaine field tests, cobalt thiocyanate is added to the sample in question. Cobalt thiocyanate turns blue when it reacts to cocaine. This indicates that a blue result on a cocaine field test suggests that cocaine is present. However, cobalt thiocyanate also turns blue when reacting to approximately eighty other substances.

Because so many substances can produce the same result on a cocaine field test, a positive result on a cobalt thiocyanate test is not a reliable indication of the presence of cocaine. Rather, the test indicates that cobalt thiocyanate reacted to one or more substances that will produce a blue reaction. The governmental use of these field tests is for this very reason. The government relies on them to have a preliminary screening measure, and, when a drug is detected, this triggers a referral to the crime laboratory for analysis.

The government also uses these field tests for an additional reason. The government relies on them to persuade targets to enter a plea agreement. The assumption being made is that if a lab tests the sample, the results will be the same. While this might be the case in some situations, we know that it is not the case in all situations.

How can counsel test both the sample and the government laboratory’s handling?

Independent testing is one way to help the defense team. Once we have the sample of suspected drugs in hand, we can hire an independent testing facility that can then conduct its own tests separately from the government laboratory. While these are just two pieces of the puzzle, combining their results may reveal an error, though it requires a clear understanding of the differences between these two methods to make that clear distinction. A second way to test the government laboratory is to test the evidence’s handling as well. When substances are transferred between different agencies, additional points are introduced in the chain of custody. This introduces more points that can be reviewed for procedural mistakes; the more opportunities that appear in a case, the more opportunities a defense team has to pinpoint an error that could be important for the client’s defense. A third way to test the government laboratory is to engage in an independent investigation. This includes reviewing police reports, body cam recordings, and dispatch records. These types of documents may uncover important information about how substances were handled, which may include a failure to document a transfer, and the possibility of contamination. The goal of this process is to identify evidence that could be used to cast doubt on the government’s allegations, while also challenging the government’s reliance on these types of substances in court. Finally, the possibility of independent lab retesting often requires planning around what a sample’s quantity and condition looks like following the government’s analysis. Because some forensic examinations can consume the sample being tested or alter it in ways that make retesting difficult, defense counsel must be sure that a sample is suitable for independent testing. Once a sample is received, the sample’s quantity and condition will need to be assessed so that a proper retesting plan can be created. This provides the client with the answer that needs to be obtained while also protecting the client’s funds. When we determine that the likelihood of obtaining a positive result for the client is limited, the cost of independent lab retesting will not outweigh the probability of failure.

What can a favorable retest change before a federal plea or trial?

A negative confirmatory result obtained through independent testing can completely undermine the prosecution’s allegation of the charged substance. With such a result, a defense lawyer may be able to cast doubt on the entire prosecution, potentially allowing them to challenge the government’s case and secure a dismissal. Independent testing can expose the discrepancy between the government’s initial field results and a confirmatory lab test. Discrepancies in forensic evidence can provide crucial insight into other aspects of a criminal case as well. For example, a defendant sentenced in federal criminal court faces a sentencing range that depends on their specific offense level and criminal-history category. In most federal cases, the federal judge will rely on a federal presentence investigation report created by a federal probation officer. This report details the defendant’s prior criminal offenses and personal history, as well as the nature of the underlying offense, all of which help inform the judge’s sentencing outcome. A lawyer who understands the risks and opportunities of your specific case can advise if your best course of action is to negotiate for a plea agreement, attempt to suppress the evidence at trial, or seek a full trial. These are all options that can be pursued based on a successful independent test. With the testing results in hand, a lawyer who knows how to interpret confirmatory results can more effectively evaluate the risks of accepting a plea or taking unidentified drugs into a federal courtroom. Spodek Law Group has federal criminal defense lawyers. To better assess your case, our lawyers work closely with the defense team. We have the means to conduct a comprehensive defense strategy and the resources to get our clients the information that they need to make the best decisions for their future. We work in a team effort, and the lawyer on your case will handle your case with full investigative and courtroom support.

If You Want Someone to Look at Your Case

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