The Use of Expert and Documentary Evidence in a Constitutional Attack on a State Criminal Statute: The Marijuana Test Case

Abstract

A TEST CASE on constitutional grounds of a state criminal statute, notably one governing the use and sale of marijuana, presents many peculiar problems. The subject matter is one of heated and often frantic debate, rising at times to the level of public panic. The subject of legislation is a substance about which perhaps more propaganda and misinformation have been spread than about any other drug in our history. Furthermore, there is considerable pressure from public bodies militating against candid discussion of the subject by truly qualified experts. The government has, in fact, raised a veritable army of instant to propound the antimarijuana position-men whose sole claim to expertise is their appointment to official office. Finally, despite a liberalizing tendency in recent years, courts remain ill-equipped to accept, digest, and act on material and testimony in areas of bitter controversy, particularly where self-anointed experts are indistinguishable from truly experienced men of science. In fact, one reason for the difficulty is that such testimony is admittedly more appropriate for legislative committee than for a judicial forum. Nonetheless, where the legislature finds itself incapable of acting, as in the reapportionment cases, or where the legislature has already acted on inadequate findings, or where the legislature has acted on findings which evidence to the contrary has since superseded, the courts must take responsibility for seeing that justice is done. These problems of judicial factfinding all developed in Massachusetts during a recent effort to engineer a test case that finally culminated in a three-week pretrial hearing on the constitutionality of the Massachusetts Narcotic Drugs Law in the case of Commonwealth v. Ivan Weiss and Joseph Leis.'