Our Section 8 Defense And Court Drama...

[FranksHotPeppersAndMarijuana]

Tpain you are wrong. The standard of proof at an evidentiary hearing is preponderance of the evidence. That means 51%. Suggesting that it is anything less is doing a disservice to people reading this. You are telling people that they can come in and testify that they needed a pound a month and that they would then be required to get off scot free. Also if the prosecution brought in an expert witness to say you didn't need a pound a month how is that hearsay? It isn't. I don't think you know what hearsay is.

[GregS]

Tpain you are wrong. The standard of proof at an evidentiary hearing is preponderance of the evidence. That means 51%. Suggesting that it is anything less is doing a disservice to people reading this. You are telling people that they can come in and testify that they needed a pound a month and that they would then be required to get off scot free. Also if the prosecution brought in an expert witness to say you didn't need a pound a month how is that hearsay? It isn't. I don't think you know what hearsay is.

I don't know where you're getting this, but I'd like to know. The requirements are that the three elements of the Affirmative Defense be proved, period. If there is a question of fact beyond that, the case is to be taken to a jury. Why is evidence beyond a reasonable doubt not required?

[t-pain]

Also if the prosecution brought in an expert witness to say you didn't need a pound a month how is that hearsay? It isn't. I don't think you know what hearsay is.

 

because the expert witness presumably would have never met you and has no possible way to tell how much you need?

do you understand what "prima facie evidence" is? that the supreme court talked about in people v kolanek/king ?

 

i'm actually curious what kind of expert witness would even exist.

since expert witnesses must rely on opinions generally accepted by their peers, except marijuana as medicine has no such accepted use, even in medical books. so you'd have to find a doctor who even knows how much marijuana their patients use? how many doctors would that even be in the entire world? a dozen?

 

police arent experts in medical marijuana. no witness there.

 

i wonder if expert witnesses have even been called against a patient.

Edited August 18, 2014 by t-pain

[FranksHotPeppersAndMarijuana]

GregS because that is the standard of proof used at an evidentiary hearing.

 

Tpain it doesn't make it hearsay if an expert witness hasn't met you or doesn't know how much you need. Yes I do know what prima facie evidence is, do you know what hearsay is?

Edited August 18, 2014 by FranksHotPeppersAndMarijuana

[+Malamute]

Trier of fact decides if it is a preponderance.

 

So,... good luck with that.

[Restorium2]

Some cut and pasted rules for medical experts as defined for federal cases.

 

Rule 703. Bases of an Expert

 

 

 

 

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

 

Notes

 

(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.)

 

Notes of Advisory Committee on Proposed Rules

 

Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources. The first is the firsthand observation of the witness, with opinions based thereon traditionally allowed. A treating physician affords an example. Rheingold, The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 489 (1962). Whether he must first relate his observations is treated in Rule 705. The second source, presentation at the trial, also reflects existing practice. The technique may be the familiar hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. Problems of determining what testimony the expert relied upon, when the latter technique is employed and the testimony is in conflict, may be resolved by resort to Rule 705. The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes. Rheingold, supra, at 531; McCormick §15. A similar provision is California Evidence Code §801(b).

 

The rule also offers a more satisfactory basis for ruling upon the admissibility of public opinion poll evidence. Attention is directed to the validity of the techniques employed rather than to relatively fruitless inquiries whether hearsay is involved. See Judge Feinberg's careful analysis in Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y. 1963) See also Blum et al, The Art of Opinion Research: A Lawyer's Appraisal of an Emerging Service, 24 U.Chi.L.Rev. 1 (1956); Bonynge, Trademark Surveys and Techniques and Their Use in Litigation, 48 A.B.A.J. 329 (1962); Zeisel, The Uniqueness of Survey Evidence, 45 Cornell L.Q. 322 (1960); Annot., 76 A.L.R.2d 919.

 

If it be feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the rule requires that the facts or data “be of a type reasonably relied upon by experts in the particular field.” The language would not warrant admitting in evidence the opinion of an “accidentologist” as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied. See Comment, Cal.Law Rev.Comm'n, Recommendation Proposing an Evidence Code 148–150 (1965).

 

Notes of Advisory Committee on Rules—1987 Amendment

 

The amendment is technical. No substantive change is intended.

 

Committee Notes on Rules—2000 Amendment

 

Rule 703 has been amended to emphasize that when an expert reasonably relies on inadmissible information to form an opinion or inference, the underlying information is not admissible simply because the opinion or inference is admitted. Courts have reached different results on how to treat inadmissible information when it is reasonably relied upon by an expert in forming an opinion or drawing an inference. Compare United States v. Rollins, 862 F.2d 1282 (7th Cir. 1988) (admitting, as part of the basis of an FBI agent's expert opinion on the meaning of code language, the hearsay statements of an informant), with United States v. 0.59 Acres of Land, 109 F.3d 1493 (9th Cir. 1997) (error to admit hearsay offered as the basis of an expert opinion, without a limiting instruction). Commentators have also taken differing views. See, e.g., Ronald Carlson, Policing the Bases of Modern Expert Testimony, 39 Vand.L.Rev. 577 (1986) (advocating limits on the jury's consideration of otherwise inadmissible evidence used as the basis for an expert opinion); Paul Rice, Inadmissible Evidence as a Basis for Expert Testimony: A Response to Professor Carlson, 40 Vand.L.Rev. 583 (1987) (advocating unrestricted use of information reasonably relied upon by an expert).

 

When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an expert's opinion, a trial court applying this Rule must consider the information's probative value in assisting the jury to weigh the expert's opinion on the one hand, and the risk of prejudice resulting from the jury's potential misuse of the information for substantive purposes on the other. The information may be disclosed to the jury, upon objection, only if the trial court finds that the probative value of the information in assisting the jury to evaluate the expert's opinion substantially outweighs its prejudicial effect. If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes. See Rule 105. In determining the appropriate course, the trial court should consider the probable effectiveness or lack of effectiveness of a limiting instruction under the particular circumstances.

 

The amendment governs only the disclosure to the jury of information that is reasonably relied on by an expert, when that information is not admissible for substantive purposes. It is not intended to affect the admissibility of an expert's testimony. Nor does the amendment prevent an expert from relying on information that is inadmissible for substantive purposes.

 

Nothing in this Rule restricts the presentation of underlying expert facts or data when offered by an adverse party. See Rule 705. Of course, an adversary's attack on an expert's basis will often open the door to a proponent's rebuttal with information that was reasonably relied upon by the expert, even if that information would not have been discloseable initially under the balancing test provided by this amendment. Moreover, in some circumstances the proponent might wish to disclose information that is relied upon by the expert in order to “remove the sting” from the opponent's anticipated attack, and thereby prevent the jury from drawing an unfair negative inference. The trial court should take this consideration into account in applying the balancing test provided by this amendment.

 

This amendment covers facts or data that cannot be admitted for any purpose other than to assist the jury to evaluate the expert's opinion. The balancing test provided in this amendment is not applicable to facts or data that are admissible for any other purpose but have not yet been offered for such a purpose at the time the expert testifies.

 

The amendment provides a presumption against disclosure to the jury of information used as the basis of an expert's opinion and not admissible for any substantive purpose, when that information is offered by the proponent of the expert. In a multi-party case, where one party proffers an expert whose testimony is also beneficial to other parties, each such party should be deemed a “proponent” within the meaning of the amendment.

 

GAP Report—Proposed Amendment to Rule 703. The Committee made the following changes to the published draft of the proposed amendment to Evidence Rule 703:

 

1. A minor stylistic change was made in the text, in accordance with the suggestion of the Style Subcommittee of the Standing Committee on Rules of Practice and Procedure.

 

2. The words “in assisting the jury to evaluate the expert's opinion” were added to the text, to specify the proper purpose for offering the otherwise inadmissible information relied on by an expert. The Committee Note was revised to accord with this change in the text.

 

3. Stylistic changes were made to the Committee Note.

 

4. The Committee Note was revised to emphasize that the balancing test set forth in the proposal should be used to determine whether an expert's basis may be disclosed to the jury either (1) in rebuttal or (2) on direct examination to “remove the sting” of an opponent's anticipated attack on an expert's basis.

 

Committee Notes on Rules—2011 Amendment

 

The language of Rule 703 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

 

The Committee deleted all reference to an “inference” on the grounds that the deletion made the Rule flow better and easier to read, and because any “inference” is covered by the broader term “opinion.” Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.

[bobandtorey]

Trier of fact decides if it is a preponderance.

 

So,... good luck with that.

 

 

Trier of fact decides = The judge 

[FranksHotPeppersAndMarijuana]

Tpain, going through this thread again I see that you make the assertion that the patient's use is presumed valid. Being presumed valid doesn't mean it is, in fact, valid. A presumption is rebuttable by the prosecutor. If you testify that you need a pound a month you can be sure that the prosecutor will put on an expert that says otherwise. Let's face it, 4 ounces a week is a lot of smoke.

[GregS]

GregS because that is the standard of proof used at an evidentiary hearing.

 

Tpain it doesn't make it hearsay if an expert witness hasn't met you or doesn't know how much you need. Yes I do know what prima facie evidence is, do you know what hearsay is?

Will you please cite your source?

[Restorium2]

Tpain, going through this thread again I see that you make the assertion that the patient's use is presumed valid. Being presumed valid doesn't mean it is, in fact, valid. A presumption is rebuttable by the prosecutor. If you testify that you need a pound a month you can be sure that the prosecutor will put on an expert that says otherwise. Let's face it, 4 ounces a week is a lot of smoke.

If your doctor said you preferred/needed cannabis oil you could justify 4 ounces a week. Although, concentrates are questionable right now after the last court ruling.

[FranksHotPeppersAndMarijuana]

Restorium2, that is my feeling too.  I know you can justify a pound or even more a month if you are making a reduction of some sort such as oil. Maybe you can even justify smoking a pound. Not saying you can't just saying it wouldn't be the easiest thing to do and seems likely the prosecution would bring in an expert witness as well. If they did bring one in I bet you anything the court would decide that it should go to a jury to decide.

[FranksHotPeppersAndMarijuana]

GregS my source is my mind. I don't have a hard source for you but I am sure that with a little digging you can comfirm. Or if I get the chance I will try and find a hard source for you.

[Dr. Bob]

If you doctor said oils and as a result you needed 4 ounces a week, you can bet your boots he would be called in to justify it with his expert opinion.

 

Dr. Bob

[trichcycler]

Doc,

 

would you ever testify to this fact for a patient, regardless of laws on the matter?

[Highlander]

If a patient could walk into a Section 8 hearing and say "It hurts when I do 'this' unless I use two oz. of MJ per week; therefore I need at least 8 weeks (a pound) worth of MJ on-hand at any given time," and if this statement means that the "evidence shows he needs this much," what would be the point of Section 8 requiring evidence that the patient needed X amount of MJ?...as if some patient would testify that he had more meds that he reasonably needed.....

 

I can't imagine any judge just going with what the patient says he needs.

Edited August 18, 2014 by Highlander

[Dr. Bob]

Doc,

 

would you ever testify to this fact for a patient, regardless of laws on the matter?

 

I would form an expert opinion based on the facts of the case.  In this particular example, there had better be some rather special circumstances.  I can justify up to a pound a month pretty comfortably based on established dosage guidelines, But it would be far easier with amounts more in line with about 5 ounces a month.  Again, depends on the case and the evidence I can call on.

 

Dr. Bob

[GregS]

GregS my source is my mind. I don't have a hard source for you but I am sure that with a little digging you can comfirm. Or if I get the chance I will try and find a hard source for you.

Maybe then you should think before making unfounded statements. Without your sources, we cannot be expected to accept them.

[trichcycler]

I would form an expert opinion based on the facts of the case.  In this particular example, there had better be some rather special circumstances.  I can justify up to a pound a month pretty comfortably based on established dosage guidelines, But it would be far easier with amounts more in line with about 5 ounces a month.  Again, depends on the case and the evidence I can call on.

 

Dr. Bob

ah, thank you. if you knew your patient before hand and were aware of his oil needs before certification even, would you support this finding(if you did indeed support it) in court, regardless of the courts opinion of extracts, to be more clear, respectively.

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

[Dr. Bob]

ah, thank you. if you knew your patient before hand and were aware of his oil needs before certification even, would you support this finding(if you did indeed support it) in court, regardless of the courts opinion of extracts, to be more clear, respectively.

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

 

I would agree with that statement.  But understand there is a difference between wanting and needing.  Needing requires supporting circumstances, and positive results to point to.

 

But it would be based on an opinion, not cited sources, as cited sources are not always available or correctly interpreted.

 

Dr. Bob

Edited August 18, 2014 by Dr. Bob

[FranksHotPeppersAndMarijuana]

GregS I don't expect you to accept my statements so cool your jets. I made a statement that I know is true that's all. I fully agree and advocate that no one accept a statement at face value. Do your own research and check it out first and then maybe you can be the one to proudly give us a citation to show that I am correct. But it helps no one to claim that all one needs to do is show "some" evidence. That is misleading and would lead some to believe they could mount a successful section 8 defense by just testifying as to what they need to use.

 

Put it this way, what are the standards of proof in the law? Basically probable cause which is equal to a preponderance of evidence and beyond a reasonable doubt which is equal to the civil counterpart of clear and convincing evidence. There is no standard of proof in the law known as a "scintilla of evidence" and basically what is being put forth is that all you need is a scintilla of evidence and you are golden. No. By the act's words the section 8 is first brought at a evidentiary hearing. An evidentiary hearing, by its own nature, uses the preponderance standard of proof.

 

Add to that that tpain claiming that the prosecution can't call an expert because it is hearsay, and you have all sorts of people running around gasping and wondering how a section 8 hearing could really be that easy. I would suggest, GregS, that you challenge all points made here not just the ones you don't like. If you would drop the constant lovers' quarrel with Dr. Bob then maybe that would help focus your attention. I didn't see you challenge tpain and ask for a citation on how an expert witness called by the prosecution is hearsay. (although, to be fair, I do believe tpain said it would be "heresy." But that doesn't fit either. 

 

Since you're making such a fuss GregS maybe you could also tell me how you would plan on getting your notarized doctor document introduced into evidence at a section 8 hearing. According to what I have been reading that cannot be done. CITATIONS PLEASE?

[bobandtorey]

Thanks to every ones for giving there opinions i don't think any Doctor can give an amount someone should take / use and thats is why the one case is at the supreme court 

 

IMHO that is

[Highlander]

Bob hits the nail on the head.

Considering that a patient's testimony has inherent bias, how do we provide solid evidence as to needed amounts?

 

It would be nice if quantities were not an issue - if the PA had the burden of proof to show non-medical use - if a patient could have any number of pounds on-hand and as long as there is no evidence of the patient selling/profiting from MJ. I mean, why should it matter if a patient has 10 pounds as long as it is only for his own use? But sadly that's not the world we live in.

Edited August 18, 2014 by Highlander

[t-pain]

If a patient could walk into a Section 8 hearing and say "It hurts when I do 'this' unless I use two oz. of MJ per week; therefore I need at least 8 weeks (a pound) worth of MJ on-hand at any given time," and if this statement means that the "evidence shows he needs this much," what would be the point of Section 8 requiring evidence that the patient needed X amount of MJ?...as if some patient would testify that he had more meds that he reasonably needed.....

 

I can't imagine any judge just going with what the patient says he needs.

the alternative is the judge requests evidence that no patient could ever hope to provide that would convince a jury.

 

patients get caught up all the time in testimony. theres been a few cases where patients have screwed the pooch. even a perjury charge was added (i forgot which case now).

 

where in sec8 does it say a judge can deny testimony for a sec8?

where in sec8 does it say a prosecutor can bring in an expert witness?

Edited August 19, 2014 by t-pain

[t-pain]

I made a statement that I know is true that's all.

 

ok, i'll bite. do you have any lawyer/judge cred or are you like me, just guessing?

[t-pain]

A presumption is rebuttable by the prosecutor.

i'm curious how you interpret sec4d2.

 

and how sec8a and sec8b differ from sec4d2 in the rebuttal department.