More on the issue of illegal drug use/abuse?

Question

I work in a research related field whereby a recruiter is contacted by a potential subject and the subject provides personal information including, in some cases, current abuse or prior use of illegal drugs. The big question that a board overseeing the research has is whether or not the information that the potential subject provides could get them arrested. We never ask who they buy their drugs from, nor do we ask if they themselves are dealers. We are only interested in whether or not a potential subject should be considered for a study screening visit. If it turns out the potential subject does not meet criteria for one of our studies, we inform them of this and we destroy any information they provided to us. For the ones that appear to meet our criteria for current drug use, we keep the information in a locked secure area in a locked file cabinet and it becomes part of the researc record. The big question we need to ask here is could any of this information be requested by judge if the person has not been charged with the crime of possession or dealing?

From my own knowledge of the law, if the subject does not disclose the information of participating in a research study 'himself' then a request for any such information can't be made. If the subject discloses to anyone that 'he' participated in this study, then the records of information we have could become part of a legal proceeding.

Can I get some elaboration on this topic anyone??

Answer 1

This is actually a really interesting question. The client has a right to privacy, but the client probably waives that by giving you the information/permission to perform the tests. The client does not have a 5th amendment privilege to avoid self incrimination with this evidence because the evidence isn't testimonial.

So the question basically is evidentiary: can the government (i.e. the prosecutor) use this evidence in court? If that is the question, it centers on what type of a case the client is on trial for. Basically, if the admission of the evidence is substantially prejudicial against the defendant, it won't be admitted, but otherwise will be. In other words, if the defendant is on trial for using drugs/possession of drugs, admissibility is unlikely.

One thing to note about your question is that it would not be the judge requesting your records. A judge's role is to evaluate the information presented to him, not to seek out information. It would be a prosecutor who would potentially be asking for the records. From the preliminary evaluation, it may be possible that the prosecutor could in fact subpoena the records, but it is highly unlikely that they would be admissible in court.

If you work for the government or act as the person's doctor/psychiatrist, they would absolutely not be admissible. Interesting topic, but it's hard to hit all the issues on a forum like this. Hope it helps.