The unfortunate reality is that oftentimes in criminal and civil trials, alike expert witnesses rely on pseudo-science and pseudo-psychology in their testimony. The Massachusetts Appellate Court recently decided the case of Commonwealth v. Delossantos, which dealt with an expert witness’s unreliable testimony about the behavior of drug users, 

What happened in the Delossantos case?

Edward Delossantos was on a side corner near Northeastern University when a police officer saw him. The officer observed that Delossantos appeared to be in pain. When the officer approached Delossantos, Delossantos told the officer “they shot my nuts off.” Delossantos groin area was severely wounded, and Delossantos was transported to the Boston Medical Center for treatment. While in the emergency room, a bag of white rocks fell from Delossantos’s groin area. In the bag was thirteen other smaller bags. The white rockers were later analyzed and came back as cocaine. 

During a jury trial, Delossantos was convicted of possession of cocaine with intent to distribute. Delossantos appealed his conviction. 

Delossantos did not deny that the bags contained cocaine, instead, he argued that the evidence was insufficient to prove that he possessed the cocaine with intent to distribute and not for personal consumption. A Boston police detective testified at trial and told the court that drug dealers often carry cocaine in multiple baggies in different sizes and that this method of packaging is usually not used for personal consumption. However, Massachusetts Courts have found in previous cases that carrying cocaine in the groin area is most consistent with personal use. 

Despite the Boston detective’s testimony being based on personal experience and past observations, the appellate court held that this testimony was sufficient to find that Delossantos had an intent to sell the cocaine. 

Delossantos also argued that certain portions of the detective’s testimony constituted impermissible profile evidence. Profile evidence is not allowed in court as it focuses on the characteristics of criminals, rather than the characteristics of the crime itself. Profile evidence is an attempt to convince the jury to determine guilt based on stereotypes rather than actual evidence. Although the detective relied on various stereotypes and practices of drug users and sellers, the appellate court held that the testimony was about the characteristics of a crime (intent to distribute) and not the characteristics of the defendant. 

The appellate court thus affirmed the trial court’s decision, and Delossantos’s conviction still stands. This case is a reminder that “expert” testimony covers a wide range of information. Typical characteristics of a crime, including the size and placement of cocaine baggies, can be the difference between a conviction and walking free. 

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