The Ban

The concern and devastating consequences of the Northeast’s opioid epidemic has taken an unexpected turn impacting trial courts and prosecutions. Effective January 8, 2018, substances containing any amount of fentanyl or carfentanil are banned from Massachusetts trial courthouses. Chief Justice of the Trial Court Paula Carey iterated the Trial Court‘s new policy in a memo, stating that the substances will only be allowed in the courtroom in very limited circumstances, including through a valid prescription where medical need requires use during the court day.

Regarding criminal trials, the drugs can be admitted as evidence if it is determined by the trial judge that the admission is necessary for the state to prove their case or is necessary to protect the defendant’s constitutional right to a fair trial. If they are allowed, the drugs must be packaged in a manner approved by the DEA and only handled by people trained to handle fentanyl and carfentanil, meaning someone trained to handle hazardous materials. After the presentation of the substances, they must be turned over to the appropriate law enforcement agency. This means jurors will not be able to handle the substances during the trial or their deliberations.

If the drugs are not admitted by the judge, the drugs can be presented as evidence through photographs, video, or witness testimony.

Additionally, all controlled- substances that lawyers plan to introduce as evidence will not be allowed into a courthouse unless they have been chemically analyzed to not contain fentanyl and carfentanil.

The restriction has occurred as a result over concern of potential deadly risks by exposure to the substances, which can occur from very small amounts of the substances. There is however a debate over whether this is an overreaction. A recent New York Times opinion editorial notes that this restriction is a result of hysteria based on faulty premises. See the article here: “Opioid Hysteria Comes to Massachusetts Courts”, https://www.nytimes.com/2018/01/23/opinion/opioid-fentanyl-hysteria-massachusetts.html.

The Initial Challenge

Not long after the ban took effect, defense lawyers for defendants Christopher Delrosario, Wilfrin Hiciano, Hector Carrasco-Gomez, and Luis Rondon Deleon, whom were charged with drug distribution in Salem, challenged the prosecutor’s attempt to introduce photographs of the suspected drugs in their case as opposed to the physical evidence itself. The defense argued that not allowing the presentation of the actual substances was prejudicial to their clients because it would overwhelmingly remind the jurors of the dangers of such drugs. However, Judge Randy Chapman allowed the motion for the photos to be admitted instead of the physical evidence. He noted that he did not find it necessary to have the actual alleged fentanyl physical evidence, pursuant to the Trial Court‘s new policy. The defense lawyers could decide to appeal on this issue to the Massachusetts Appeals Court or the Supreme Judicial Court if their clients are convicted.

The Context of Annie Dookhan

Considering the context of the Annie Dookhan scandal here in Massachusetts, there are additional fears with this ban of physical evidence. Allowing photographs of drug evidence rather than the physical drugs themselves can fail to reveal important details that undermine the prosecution’s evidence. This is especially a concern where drug labs have the history of “cutting corners,” and determining that samples are drugs without testing or through compromising the drug samples.

Stay tuned with the Forum to see the developments on this ban.