Forensic Chemist Testimony Concerning Clandestine Lab Yield Satisfied Daubert Reliability Factors

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In drug conspiracy trial, forensic chemist could provide expert testimony concerning the yield of phencyclidine (“PCP”) that could be produced in a clandestine laboratory, in United States v. McCaleb, 552 F.3d 1053 (9th Cir. Jan. 13, 2009) (No. 06-50387).

The Ninth Circuit recently considered the admissibility of forensic chemist testimony concerning the yield of phencyclidine (“PCP”) that could be produced in a clandestine laboratory under some of the Daubert factors.

In the case, authorities discovered and seized evidence involving the production of phencyclidine (“PCP”) at a clandestine laboratory. Defendant McCaleb was charged with conspiring to manufacture, to aid and abet the manufacture of, to distribute, and to possess with intent to distribute, PCP, and possessing ethyl ether, a precursor chemical, knowing and having reasonable cause to believe that it would be used to manufacture PCP. At trial, a Drug Enforcement Administration forensic chemist testified “about the actual yield of PCP that could be produced in a clandestine laboratory.” McCaleb, 552 F.3d at 1060. The expert testimony was offered to show that more than 100 grams of PCP was involved on the conspiracy count. The expert used a conservative estimate that the clandestine laboratory could result in a twenty-five percent yield. After the defendant was convicted, on appeal, he contested the admission of the forensic chemist testimony.

The circuit affirmed the admission of the expert testimony, which satisfied some of the factors under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The circuit noted the requirements for admitting expert testimony under FRE 702:

“Federal Rules of Evidence 702 allows for the admission of ‘scientific, technical, or other specialized knowledge’ when ‘(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.’ A district court may rely on various factors in evaluating such evidence, including (1) whether the theory can be or has been tested; (2) whether the theory has been subjected to peer review; (3) whether the error rate is known and standards exist to control the operation of the technique; and (4) whether the theory has gained general acceptance.”
McCaleb, 552 F.3d at 1060 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993).

In applying these non-exclusive factors, the circuit applied the general acceptance and publication factors. First, the expert explained that his calculation was “based on an aggregate of data compiled by the DEA” from the seizures from other clandestine laboratories. Information from an internal DEA database “indicated that the average yield from such laboratories was between 30% and 40%.” The expert testified that the twenty-five percent yield estimate was “commonly used” by “forensic chemists throughout DEA,” which included “an average of 30 chemists in each of the [DEA’s] eight laboratories.” McCaleb, 552 F.3d at 1060. This satisfied the Daubert reliability factor of general acceptance. McCaleb, 552 F.3d at 1060 (citing Daubert, 509 U.S. at 594 (noting “‘general acceptance’ can yet have a bearing on the inquiry” concerning the admission of expert testimony). <>/p>

Second, the forensic expert also “testified that she was familiar with a study published in the Journal of Medicinal Chemistry regarding actual yields of PCP in a laboratory.” McCaleb, 552 F.3d at 1060-61. The trial court also concluded that the expert opinion was in part “based on published articles.” McCaleb, 552 F.3d at 1060-61. This satisfied the publication factor under Daubert, 509 U.S. at 594 (“The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.”).

Finally, the circuit noted that the expert used a conservative estimate of a twenty-five percent yield as “she obtained an actual yield of about 55%.” McCaleb, 552 F.3d at 1061. Based on the application of the Daubert factors and the testimony at trial, the expert testimony was admissible under Daubert and FRE 702.

The application of the Daubert reliability factors was also noted in Handwriting Expert Testimony Satisfied Five Daubert Reliability Factors; Fingerprint Expert Testimony Satisfied Daubert Reliability Factors; and Shoeprint Expert Testimony Satisfied Daubert Reliability Factors.

Federal Rules of Evidence
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