B. Challenging the scientific evidence

Drug Induced Homicide Defense Toolkit

In addition, one court expressed concern in dicta about the prospect of permitting

liability under this provision where the victim died by suicide:

That could lead to some strange results. Suppose that, unbeknownst to the seller of an illegal drug, his buyer was intending to commit suicide by taking an overdose of drugs, bought from that seller, that were not abnormally strong, and in addition the seller had informed the buyer of the strength of the drugs, so that there was no reasonable likelihood of an accidental overdose.84

Accordingly, as with proximate cause above, defendants should consider requesting

an intervening cause instruction if only to preserve the issue.

B. Challenging the scientific evidence85

This section provides examples of possible ways defendants can challenge the

scientific claims upon which drug-induced homicide prosecutions are based. Recall that if

a jurisdiction uses a but-for test, Burrage requires prosecutors charging DIH cases to

prove beyond a reasonable doubt that the distributed drug was the “but-for” cause of

death.86 The experts at trial were unable to prove this when the decedent was on a

84 United States v. Hatfield, 591 F.3d 945, 950 (7th Cir. 2010).

85 This section is adopted and excerpted from an article drafted by Valena E. Beety. See generally Valena E. Beety, The Overdose/Homicide Epidemic, 34 Ga. St. U. L. Rev. 983 (2018). For an example of how to employ some of the strategies discussed in this Section, see this transcript of the direct and cross examination of a medical examiner in federal court.

86 Burrage v. United States, 571 U.S. 204, 210, 216 (2014).

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