Drugged Up?: Colorado Court of Appeals Deems Evidence From Drugs.Com Inadmissible Under Rule 803(17)

Similar to its federal counterpart, Colorado Rule of Evidence 803(17) provides an exception to the rule against hearsay for

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

As I have previously noted on this blog, and as the Colorado Court of Appeals noted in People v. Hard, 2014 WL 5033147 (Colo.App. 2014), this exception allows for the admission of things such as evidence from the Kelley Blue Book. But Hard didn’t deal with evidence from the Kelley Blue Book. It dealt with evidence from Drugs.com.

In Hard,  Lisa Lynne Hard was charged with possession of a schedule II controlled substance and possession of a schedule III controlled substance. After arresting Hard, Trooper Hancey recovered pills from her pocket and then “accessed the website Drugs.com to identify the pills. He identified one pill as oxycodone, a controlled substance, and seven of the pills as alprazolam, another controlled substance.”

Before trial, defendant’s counsel moved to exclude Trooper Hancey’s testimony about his Drugs.com search results. Counsel argued, as relevant here, that the evidence was inadmissible hearsay and that its admission would violate defendant’s right to confrontation.

The prosecutor argued in response that the evidence was admissible under CRE 803(17), the hearsay exception for market reports and commercial publications. Specifically, the prosecutor argued that information from Drugs.com fits within the exception because Drugs.com is a public source of information on which police officers rely to identify drugs.

The trial judge agreed with the prosecution, prompting Hard’s appeal after she was convicted. In addressing Hard’s argument about the (in)applicability of Rule 803(17), the Colorado Court of Appeals noted that “[a]s with other hearsay exceptions, the admissibility of market reports and commercial publications under Rule 803(17) is predicated on the two factors of necessity and reliability.”

Then, after noting that evidence from the Kelley Blue Book was the paradigm case of a market quotation under Rule 803(17), the court found the exception less applicable to the Drugs.com evidence, forcing it to “determine whether information from Drugs.com  meets the requisite criteria of necessity and reliability to be admissible under that exception for the purpose of identifying a controlled substance.”

With regard to necessity, the court found that

The People have not argued that using Drugs.com is a necessary means of identifying drugs. And it seems clear to us that it is not. Visually identifying a drug based on a Drugs.com search is not the only method – or even the most effective or reliable method – available to law enforcement officials. Rather, as Trooper Hancey acknowledged, another available method for identifying the pills in this case would have been to submit them to the Colorado Bureau of Investigation for chemical testing. Thus, use of Drugs.com to identify the drugs was by no means necessary.

Then, with regard to reliability, the court found four problems:

First, although the People argue that information fromDrugs.com is reliable because Trooper Hancey testified that Drugs.com  is “nationally recognized” and that law enforcement officials rely on it when identifying unknown pills, the prosecution offered no foundation for Trooper Hancey’s assessment that Drugs.com is nationally recognized. And, in any event, Trooper Hancey’s testimony alone was insufficient to establish the website’s reliability….

Second, courts in several other jurisdictions have held that mere visual identification of prescription drugs – that is, identification of a drug by comparing its physical attributes to a reference material such as Drugs.com – is not a sufficiently reliable method of proof in a criminal trial…. 

Third, although the People argue that information fromDrugs.com is reliable because that website compiles and publishes material from reliable sources, they provide no support for that proposition. And, indeed, courts in several jurisdictions have questioned the reliability of several of Drugs.com‘s sources – including the Physicians’ Desk Reference and Micromedex….

Fourth, we find unpersuasive the People’s argument that information fromDrugs.com is reliable because its “mission statement says that it is the ‘largest, most widely visited, independent medicine information website available on the Internet,’ and it provides ‘independent, objective, comprehensive, and up-to-date information … for both consumers and healthcare professionals.’” That mission statement was not included in the record; thus, we may not consider it….But even if we assume that the mission statement is properly before us, a website’s own self-serving mission statement hardly constitutes objective proof of the website’s reliability. And the mission statement is offset by the website’s disclaimer of any guarantee as to the accuracy of the information on the site.

Accordingly, the court deemed the evidence inadmissible and reversed Hard’s conviction.

-CM