I think CAAF will need to re-look at the rule in United States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006). Here is how CAAF distinguished Magyari (admissible drug lab report on urine testing for drugs) from United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (inadmissbile lab report on testing of drugs),
Our reasoning in Magyari that “[b]ecause the lab technicians were merely cataloging the results of routine tests, the technicians could not reasonably expect their data entries would ‘bear testimony’ against [a]ppellant at his court-martial” does not apply here.
While you could argue that CAAF’s decision in Harcrow (with nearly identical facts to Melendez-Diaz) would make the Magyari facts fit within Melendez-Diaz, this passage from Melendez-Diaz was a shot across the bow (or possible up it) of Magyari and similar cases:
Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is “prone to distortion or manipulation,” and the testimony at issue here, which is the “resul[t] of neutral, scientific testing.” . . . Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because “one would not reasonably expect a laboratory professional . . . to feel quite differently about the resultsof his scientific test by having to look at the defendant.” . . . This argument is little more than an invitation to returnto our overruled decision in Roberts . . . which held that evidence with “particularized guarantees of trustworthiness” was admissible notwithstanding the Confrontation Clause.
We’ll see what happens, though the harmless error analysis in Harcrow is interesting in light of SCOTUS not addressing the issue.
Rodney Dangerfield note: Justice Kennedy has caught on to the existence of the military justice system, see Dissent at 22, but apparently Justice Scalia has not–no cite to Harcrow anywhere (though in light of the Magyari precedent discussed infra., the omission may well have been intentional).