United States District Court, Eastern District of New York
October 22, 1990
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Weinstein, District Judge:
Anthony Medina pled guilty to a violation of the narcotic
laws. In 1988 he was sentenced to ten years in the custody of
the Attorney General, execution was suspended, and he was
given five years probation. As a condition of probation, he
was required to refrain from using any narcotic.
In November of 1989, probationer tested positive for cocaine
under a routinely administered drug urine analysis. Confronted
with the test results, after initially denying narcotics use,
he admitted using cocaine. He was then directed to participate
in a drug-free treatment program under the supervision of the
In May of 1990, at a hearing on additional probation
violations, the probationer indicated that he had not used
drugs for many months. The court ordered radioimmunoassay
(RIA) hair analysis to determine if he had ingested narcotics
in violation of the conditions of his probation.
Abstinence for a relatively short period either voluntarily
or due to incarceration purges blood and urine of traces of
narcotics. Thus, drug testing of body fluids for drugs using
the usual tests only reveals the use of narcotics in the
immediate past. RIA hair analysis, by contrast, reveals drug
use over a period of months while hair is growing and
absorbing drug traces through the blood stream.
Probationer's hair tested positive for cocaine. If accepted
the hair analysis revealed a violation of probation.
RIA hair analysis is a relatively new form of forensic proof
not yet recognized by the courts. The court is obliged to
consider the basis for its admissibility.
Prior to the enactment of the Federal Rules of Evidence the
admissibility of scientific evidence was generally governed by
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). For
scientific evidence to be admissible under Frye, "the thing
from which the deduction is made must be sufficiently
established to have gained acceptance in the particular field
in which it belongs." Id. at 1014.
Pursuant to the Federal Rules of Evidence, courts should now
determine the admissibility of novel scientific evidence by
balancing the "relevance, reliability and helpfulness of the
evidence against the likelihood of waste of time, confusion
and prejudice." In re Agent Orange Prod. Liab. Litig.,
611 F. Supp. 1223, 1242 (E.D.N.Y. 1985). In United States v.
Downing, 753 F.2d 1224, 1237 (3d Cir. 1985), the Third Circuit
ruled that admissibility depends on three factors: "(1) the
soundness and reliability of the process or technique used in
generating the evidence, (2) the possibility that admitting the
evidence would overwhelm, confuse, or mislead the jury, and (3)
the proffered connection between the scientific research or
test to be presented, and particular disputed factual issues in
the case." See also United States v. Williams, 583 F.2d 1194,
1198 (2d Cir. 1978), cert. denied, 439 U.S. 1117, 99 S.Ct.
1025, 59 L.Ed.2d 77 (1979) (to determine admissibility court
should balance reliability and helpfulness against
countervailing considerations expressed in Rule 403).
In those jurisdictions that purport to follow Frye, the issue
of reliability — the essence of the newer standard — appears
to be synonymous with general acceptance in
the scientific community. See, e.g., United States v. Franks,
511 F.2d 25, 33 n. 12 (6th Cir.), cert. denied, 422 U.S. 1042,
95 S.Ct. 2654, 45 L.Ed.2d 693 (1975). The result reached in a
Frye or a Federal Rules of Evidence jurisdiction is almost
always identical in practice so that decisions under the two
rules are interchangeable.
The relevance and helpfulness of RIA hair analysis in
establishing evidence of drug ingestion is apparent in the
probation violation setting. Accordingly, the primary issue
that must be resolved in determining admissibility of RIA hair
analysis is reliability.
A court should take judicial notice of the relevant body of
scientific literature to assist it in evaluating advances in
scientific techniques such as RIA hair analysis.
Browning-Ferris Indus. v. Muszynski, 899 F.2d 151, 161 (2d Cir.
Extensive scientific writings on RIA hair analysis
establishes both its reliability and its acceptance in the
field of forensic toxicology when used to determine cocaine
use. See, e.g., Arnold, Radioimmunological Hair Analysis for
Narcotics and Substitutes, 25 J. Clinical Chemistry and
Clinical Biochemistry 753 (1987) (hair analysis is an effective
method for detecting narcotics); Balabanova, Brunner & Nowak,
Radioimmunological Determination of Cocaine in Human Hair, 98 Z
Rechtsmed 229 (1987) (same); Baumgartner, Baer, Hill & Blahd,
Hair Analysis for Drugs of Abuse in Parole/Probation
Populations, National Institute of Justice Final Report, (grant
86-IJ-CX-0029) (study compared the results of RIA hair analysis
with urinalysis and determined that hair analysis provided more
accurate detection rates); Baumgartner, Hill & Blahd, Hair
Analysis for Drugs of Abuse, 34 J. Forensic Sciences 1433
(1989) (hair analysis for drugs of abuse is an effective means
for identifying drug abusers); Graham, Koren, Klein,
Schneiderman, & Greenwald, Determination of Gestational Cocaine
Exposure by Hair Analysis, 262 J.A.M.A. 3328 (1989) (RIA hair
analysis may remedy the disadvantages of standard blood and
urine tests); Harkey & Henderson, Hair Analysis for Drugs of
Abuse in 2 Advances in Analytical Toxicology 298 (R. Baselt ed.
1989) (hair analysis can provide a more accurate history of
drug use than conventional urinalysis); Smith & Liu, Detection
of Cocaine Metabolite in Perspiration Stain, Menstrual
Bloodstain and Hair, 31 J. of Forensic Sciences 582 (1981)
(same); see also United States v. Riley, 906 F.2d 841, 853 (2d
Cir. 1990) (dissent on other grounds) (hair could be analyzed
to show use of narcotics); cf. Burgel v. Burgel, 141 A.D.2d 215,
533 N.Y.S.2d 735 (2d Dep't 1988) (radioimmunoassay of hair
is permissible form of discovery). See generally Society
of Forensic Toxicologists, Bibliography of Conference on Hair
Analysis for Drugs of Abuse (1990). But cf. United States v.
Foote, 898 F.2d 659, 665 (8th Cir. 1990) (affirming district
court's denial of defendant's motion to compel radioimmunoassay
of police officer's hair). Moreover, even though the
application of the technique to detect controlled substances is
relatively recent, hair analysis has been used to detect the
presence of metals or nutrients for almost twenty years. See,
e.g., Harkey & Henderson, supra, at 325-26.
Some forensic scientists caution against widespread use of
RIA hair analysis until more is known about the mechanism by
which controlled substances are incorporated into human hair
and the minimum amount necessary to produce a positive result
can be standardized. See, e.g., Bailey, Drug Screening in an
Unconventional Matrix, 262 J.A.M.A. 3331 (1989); Harkey &
Henderson, supra, at 326. This hesitation, centering around the
biochemical mechanisms of narcotics absorption and quality
control in the laboratory, is not based upon a challenge to the
basic scientific principles of analytical chemistry which are
the foundation of radioimmunoassay. These accepted principles
establish that radioimmunoassay is an effective and accurate
method of detecting the presence of various compounds including
In addition to satisfying itself on general theoretical
soundness, before admitting
relatively novel scientific evidence the court should
determine that (1) the sample was properly obtained — here,
for example, by obtaining hair from appropriate portions of the
body, (2) the particular laboratory technique used was sound
and (3) the laboratory was careful and accurate in its use of
that technique. See, e.g., People v. Castro, 144 Misc.2d 956,
545 N.Y.S.2d 985 (Sup.Ct. 1989) (DNA testing theory sound but
application flawed); State v. Schwartz, 447 N.W.2d 422, 426-27
(Minn. 1989) (same); Gianelli, The Admissibility of Novel
Scientific Evidence, 80 Colum.L.Rev. 1197, 1226 (1980).
No challenge was made to the method of hair sampling or to
the soundness or accuracy of the laboratory's work in the
instant case. Nor were these issues in doubt since probationer
readily admitted the accuracy of the test result upon being
confronted with it.
There was no possibility of jury confusion or prejudice
because a probation violation hearing is a non-jury
proceeding. The aura of reliability which attaches to
scientific evidence can be expected to have less impact in a
bench than in a jury trial. See United States v. Downing,
753 F.2d 1224, 1235 (3d Cir. 1985); United States v. Solomon,
753 F.2d 1522, 1525-26 (9th Cir. 1985); cf. United States v.
Williams, 583 F.2d 1194 (2d Cir. 1978), cert. denied,
439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979) (court's limiting
instruction as to spectrographic voice identification stressed
that jury could disregard expert testimony).
The results of the hair analysis report are accepted as some
proof that probationer violated the conditions of his
probation. Other evidence supports that conclusion beyond any
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