Deconstructing Blazier
United States v. Blazier, No. 09-0441/AF, argued on Tuesday, presented the following question:
WHETHER, IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004), APPELLANT WAS DENIED MEANINGFUL CROSS-EXAMINATION OF GOVERNMENT WITNESSES IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION WHEN THE MILITARY JUDGE DID NOT COMPEL THE GOVERNMENT TO PRODUCE ESSENTIAL BROOKS LAB OFFICIALS WHO HANDLED APPELLANT’S URINE SAMPLES AND INSTEAD ALLOWED THE EXPERT TOXICOLOGIST TO TESTIFY TO NON-ADMISSIBLE HEARSAY. SEE MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. ___, 127 S. CT. 2527 (2009).
Audio of the oral argument is at http://www.armfor.uscourts.gov/CourtAudio2/20100126a.wma . Brief in Support of Petition Granted is on Westlaw at 2009 WL 4542960. Final brief on behalf of the United States is on Westlaw at 2009 WL 5176753.
The factual background: Senior Airman (E-4) Joshua Blazier was subject to a random urinalysis on 5 June 2006, which tested positive for methamphetamine and ecstasy. A month later, on 10 July 2006, he consented to a second urinalysis which tested positive for marijuana. Both samples were tested at the Air Force Drug Testing Laboratory (Brooks Lab) using the standard double-immunoassay with gas chromatography / mass spectrometry (GC/MS) confirmation. The results were reported (for use at trial) in a documentation package (or “litigation packet,” discussed below). That package included contemporaneous documents and notations made during the laboratory testing. It was transmitted under a 16 August 2006 cover letter signed by Dr. Vincent Papa, who testified as an expert witness at trial. SA Blazier was convicted at a General Court-Martial conducted on 20-22 November 2006 of wrongful use of ecstasy, methamphetamine, and marijuana, as well as wrongful possession of drug abuse paraphernalia.
At CAAF, the arguments of the Apellant, Senior Airman Blazier, were essentially that the urinalysis results “were of a nature that they qualify as a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact’” (Brief in Support of Petition Granted at 20 (citing Melendez-Diaz)); that the Confrontation Clause required “an opportunity to challenge the conclusions of [all of the] actual analysts performing the test[s], not simply an individual who has reviewed and vouches for [their] work” (Brief in Support of Petition Granted at 32); and that such reports may no longer be preadmitted as business records because they “are testimonial documents clearly created to serve as evidence in Appellant’s court-martial” (Brief in Support of Petition Granted at 33). I think these arguments are best addressed in reverse order.
First, Crawford, and Melendez-Diaz, do not change the fundamental character of business records as non-testimonial. This is obvious in the text: “Most of the hearsay exceptions covered statements that by their nature were not testimonial – for example, business records or statements in furtherance of a conspiracy.” Crawford, 541 U.S. at 55. Laboratory records of military urinalysis have long been recognized as business records. Therefore, it is necessary to reclassify these records as something other than business records in order to require the Government produce a host of live witnesses to testify about the analytical process. This is a pretty big job.
The “Business Records Exception” to the hearsay rule was dissected in Palmer v. Hoffman, 318 U.S. 109, 112; 63 S.Ct. 477, 480 (1943).
The routine of modern affairs, mercantile, financial and industrial, is conducted with so extreme a division of labor that the transactions cannot be proved at first hand without the concurrence of persons, each of whom can contribute no more than a slight part, and that part not dependent on his memory of the event. Records, and records alone, are their adequate repository, and are in practice accepted as accurate upon the faith of the routine itself, and of the self-consistency of their contents. Unless they can be used in court without the task of calling those who at all stages had a part in the transactions recorded, nobody need ever pay a debt, if only his creditor does a large enough business.
The very same may be said for urinalysis; nobody need ever worry about prosecution for substance abuse if only the service tests a large enough population.
But in Palmer the records (an engineer’s statement related to a locomotive mishap) were not admissible because the statement was made in anticipation of litigation, and was not “a record made for the systematic conduct of the business as a business.” Palmer at 113. This is a somewhat subtle distinction because the railroad made a practice of recording its employees’ version of events after a mishap. Parsing this issue, the Supreme Court realized that “regular course of business must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of the business as a business.” Palmer at 115. The same is true of the drug screening laboratories; their business is urinalysis, and their contemporaneous recordkeeping is a necessary part of that profession.
Crawford may have muddied these waters somewhat, but it did not change the common-law rule that a business record is not testimonial (i.e., not the functional equivalent of testimony) because it is a business record, not that a business record is a business record because it is not testimonial.
However, Blazier’s appeal (and, anecdotally, a majority of the military defense community) raises two issues at this point. First, it claims that the records are necessarily prepared for litigation as they are commonly referred to as “drug litigation packages” by prosecutors. This is preposterous; the documents may as well be called “winning lottery tickets” or “photographs of the Loch Ness monster” – the label does not change the pedigree or character of the recordings, which were made contemporaneously with the analysis (excepting the cover letter) as part of the business of the laboratory. The other, and more reasoned argument, is that at some point the laboratory analysis changes from a routine scientific inquiry to a quest for evidence to be used at trial, undertaken at the behest of law enforcement. In urinalysis this is alleged to occur at the time of GC/MS confirmation, where the samples are “presumptively positive,” and the analysis must become “forensically defensible” (Audio recording of oral argument at 11:30). However, this argument presumes (1) that the GC/MS confirmation test is distinguishable from the immunoassay tests as somehow not part of the conduct of the business of the laboratory as a laboratory business, and (2) that the results are necessarily destined for a judicial process. Unfortunately, from my review of the briefs and argument, neither of these issues was fully addressed, beyond vague and unsubstantiated allegations of potential misconduct by laboratory staff (that they are aware that the vast majority of GC/MS confirmations yield positive results (Audio recording of oral argument at 2:15)), and a general discussion of the potential for use of the results in a legal proceeding that “includes a court-martial” (recording at 2:50). On this later point, no data is provided on how often the results are used at trial, or even what percentage of positive results are requested in formal reports. Personally, I find this omission disturbing, as I suspect that a formal report (i.e., assembly and transmittal of the business records) is prepared in the minority of circumstances.
Still, GC/MS is as necessary to the process of competent laboratory analysis as immunoassay, and were the laboratory to omit it the result would not only be not “forensically defensible,” it would also be scientifically invalid. However, after this confirmatory testing any remaining urine is sent to long-term storage, and may be retested at the request of either party. Undoubtedly a re-test of the stored remainder of the original sample, performed at the request of a prosecutor, would be a totally different matter.
Additionally, a judicial process is only one possible outcome. A non-judicial or administrative outcome (or a Meritorious Service Medal (Audio recording of oral argument at 50:00)) is as likely, or more likely, to be the result of the laboratory analysis.
The outlier is the cover letter that is (generally) prepared by the expert witness who testifies. I am familiar with Naval Drug Screen Lab Jacksonville’s cover letters, which formally summarized the attached records but recently became rather bland certifications of a keeper of records. In any event, it is not (in my experience) customary to admit the cover letter into evidence, and it has little utility anyway beyond that of authenticating the underlying documents. Thus the records remain those of a business, made in the regular course of the business, are not testimonial, and are properly admitted.
Interestingly, this does not deny the Accused “an opportunity to challenge the conclusions of [all of the] actual analysts performing the test[s], not simply an individual who has reviewed and vouches for [their] work,” the second essential argument of the Appellant. The appearance of an expert witness is required (“Under our case law, where scientific evidence provides the sole basis to prove the wrongful use of a controlled substance, ‘[e]xpert testimony interpreting the tests or some other lawful substitute in the record is required to provide a rational basis upon which the factfinder may draw an inference that [the controlled substance] was [wrongfully] used.’” United States v. Green, 55 M.J. 76, 80 (CAAF ,2001) (citing United States v. Murphy, 23 MJ 310, 312 (CMA, 1987)) (emphasis added)). The defense can, and routinely does during rigorous cross-examination, highlight the fact that the expert wasn’t there when the test was performed, can’t actually vouch for the integrity of the process on that day, and must admit that there have been problems in the past. Oftentimes this yields an acquittal.
During the oral argument a member (or multiple members; I lack the familiarity with the voices to be sure) of the Court asked exactly who, in this case, would be required to appear at trial. Counsel refused to give a list of names or a total number of required witnesses (Audio recording of oral argument at about 7:00 – 10:00) but referred to a list provided in the Joint Appendix which apparently contains 28 names. This is just obstructionism designed to maximize confusion and waste of time at trial, as these witnesses cannot credibly recall a specific sample out of tens (or hundreds) of thousands, and would testify only about the standard practices at the laboratory, just as the expert does. The Government may as well be required to produce the janitors and cafeteria workers.
Finally, the issue that started this confrontation crises in urinalysis cases is the assertion that the laboratory records are somehow “of a nature that they qualify as a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” This is the central issue in Melendez-Diaz (and in the Supreme Court’s per curiam remand of Briscoe v. Virginia) and is a matter of substituting testimony with affidavits. The Massachusetts trial practice, which I did as an Assistant District Attorney during a third-year clinical program, was that a bag containing seized narcotics, stapled to a single-page affidavit identifying the composition and weight of the contents, was published to the jury after only a chain-of-custody authentication by a custodian (generally the officer who made the seizure). The plain-English conclusion of the laboratory was accepted as a matter of faith, and nobody testified. Melendez-Diaz ended this practice.
The Government’s practice at Court-Martial is radically different. The records are not affidavits that draw conclusions about the urinalysis; they are the actual results as generated by the (mostly automated) testing process. Generally the only hand-written notations are entries copying the machine printed result from one page into a blank space on another, notations of any discrepancies (which are exculpatory, if anything), and meaningless tick marks from the quality-control review (though laboratory policies are different in this respect, and apparently there are sometimes certifications that could easily be omitted, or redacted at trial, without changing the evidentiary value of the documents). But “handwritten” does not mean “testimonial” (despite the assertions in the audio recording of oral argument at 56:45). At trial, the required expert witness (under Murphy and Green) is invited to methodically review these documents and draw the ultimate conclusion of the analysis, finding the presence of the drug metabolite that yields the permissive inference of wrongful use. This is as certain a presentation of laboratory analysis as can be made, without actually performing the scientific tests in the courtroom.
If the only difference between Magyari and Blazier is Melendez-Diaz, then nothing has changed and Counsel for the Government did a good job deflecting the Appellant’s arguments on Tuesday, and Magyari will emerge unscathed.
However, I think there is a new issue emerging regarding the testimony of a machine. In the audio recording of oral argument at 44:30 we hear:
The machine cannot be a declarant, there cannot be hearsay, you can’t cross examine the machine, and therefore there’s no 6th Amendment problem.
This, I think, is terrifying, and has the potential to be the next Crawford. Just as the railroad cannot institutionalize the preservation of evidence for litigation and maintain its business character, the Government cannot automate the collection of evidence and avoid confrontation. The automaton is poised to become the new indicia of reliability. But this battle is already being fought over similar facts, as criminal defendants seek access to the source code for breathalyzers. Just as the breathalyzer performs some potentially arguable math, the contents of the printouts that are the business records of the drug screening laboratories are dictated by some programming which is a human construct, preformatted and waiting for a translation of electronic impulses into English characters and Arabic numerals. While it’s not the technician who pours the sample or pushes the button, someone is speaking on those pages.
But Blazier will not identify that speaker, or resolve the issue of confronting him.
Post edited to add the following: An anonymous comment has made me consider what the Government might do if CAAF rules that all (or even many) of the personnel who participated in the tests be brought to trial (other than appeal to the Supreme Court). In that event, typical urinalysis results will be reserved for administrative hearings, and, by request and in advance of trial, the laboratory will test the remaining part of the stored sample by GC/MS alone, with a single examiner. That sole examiner will become the trial expert witness, and only his follow-up test will be used in the Government’s case.
In other words, the Government will spend more money for the same result, though with better facts (this witness will know that the test was done the way it was supposed to be done, because he did it) and the Accused will still cross-examine the same single witness.
Come to think of it, as an Accused I think I’d prefer the status quo.
you speak of a fear and concern of “automating” evidence collection, but no apparent concern of “commercializing” the same?
IOW, the “business” of the lab testing facility is to check urine for drugs (simplistic explanation I know). So if the government did it itself, then it would not be a business record, but because they hire someone to do it, now it is?
But that concern of mine can even be ameliorated somewhat. Certainly we have the concept that unit urinalysis isn’t targeted at anyone specifically and may not be subject to a Crawford analysis but individually ordered urinalysis’ are subject to Crawford.
The bottom line being, I don’t see how, without creating a legal fiction, you can characterize post-Crawford, a urinalysis as non-testimonial or not prepared in anticipation for trial. They don’t prepare “litigation packets” generally for article 15s and chapters, they prepare them for courts-martial.
Anon 1219,
You are missing the distinction between lab reports and affidavits prepared for trial. The “litigation packets” which are compiled by the drug lab are simply a compilation of non-testimonial test results performed in the ordinary course of business. The fact that someone took the printed lab reports and compiled them into a group doesn’t change the nature of the underlying files. The only troublesome document in the stack, which is arguably testimonial, is the summary page up front which breaks down the contents of the packet.
Again, IMO that is a legal fiction. First of all, the “business” here is primarily criminal in nature as far as what it deals with. If the government did this, if CID did this, it wouldn’t be business. So we shuffle it off to a “business” and call it a business record and thus non-testimonial.
These reports are prepared for trial and shipped at the request of trial counsel. The compilation itself creates IMO a new composite document aka a “litigation report.” I in fact do think the fact that someone took separate reports, compiled them, at the request of a prosecutor changes the nature of the files in total.
We don’t allow in police reports even though they are creating those reports in the course of the “business” of policing. Seems to me, given the view on litigation packets, we merely need to privatize our police force, then we can introduce police reports as well.
Anon-
Read Palmer (318 US 800) and the opinion below it (129 F.2d 976). Note the common-law purpose of the business record exception, and the reasons that the railroad report was excluded. It’s the same analysis for the laboratory records (which are merey aggregated in the “packet”) and investigative reports.
…from a guy sitting in the back row at the hearing – the court was asking all the right questions for the appellant. The tenor and tone was for the appellant as well. Of course, you always get lulled into a feeling of success and then they crush you in the end.
Spilman, I thought the tone of my comments was clear. I am asserting that this is a legal fiction and that I disagree with it, that it violates the spirit of Crawford. I did not say that there wasn’t caselaw out there that may very disagree with me, thus the legal fiction part.
Simply to me if one is concerned about mechanics trumping confrontation clause they should be equally so of economics/business doing it.
We’ll see, but it wouldn’t surprise me to see CAAF treat, in some circumstances, “lit packets” as non-business records…and not simply because of one page.
This is a “preposterous” post. The packets are not business records simply because they are not prepared UNTIL a request from prosecution staff. That is the whole point!!! It would be quite a different matter if the labs kept complete results from EVERY test as a matter of course, regardless of whether it was positive or negative.
From the defense standpoint, Melendez-Diaz seems pretty clear, you don’t have to have every person who touches the sample testify but the Gov’t does need to satisfy Confrontation Clause concerns. Paraphasing, M-D tells us there are two kinds of evidence, favorable and unfavorable to the accused, there is no 3rd type. If the witness is unfavorable, you have a right to confront them. The G doesn’t get around that right simply by presenting a computer print out; a print out which is only created as a result of human action. This makes sense as anything else would logically fail a relevance analysis.
Eagerly awaiting the opinion,
Yes, and no. The records of the urinalysis are (to my understanding) printed and retained for every test, but they are not assembled and forwarded until requested by the Government. The lab does not reproduce the test and results on receipt of the request, they simply go to the files, obtain the relevant pages, number them, and add a (sometimes controversial) cover letter.
If this were fatal, then there would never be incuplatory admissible business records post-Crawford (a theory clearly contradicted by the opinion itself) because all business records are assembled after a request from a litigant.
Though the folks who know me would probably agree with the preposterous bit.
the difference is that most of those inculpatory business records are from businesses who aren’t in the business of coming up with inculpatory documents.
A business record could often end up being used for inculpatory purposes, sure, that wouldn’t make it not a business record. But this is different.
Mr. Spilman,
Disagree with your position these are biz records, a position CAAF did not seem too eager to accept on Tueday either. As a staring point, I think we both may be operating under different versions of facts; the Army labs at Meade and Tripler do not prepare the reports until a request. All that is done is a list of positives is sent to command. They then request full lit packets which are sent to TC…clearly done in furtherance of Prosec, letter or not. Doesnt Harcrow tell us lab reports are not per se biz records (admittedly that was a little different factually)? It also reminds us that cts are not uniform in a belief that lab reports are biz records, so again that is not a proposition we should always accept. The bigger question would be is there really any reasonable argument post M-D that your cc rights are based on the type of UA?
Again I am reminded of Thomas in M-D, two types of witnesses, those signing these documents obviously are not favorable so where do they fall? Either unfavorable or irrelevant and if they are unfavorable you get to cross them.
Anon 7:09 is correct….there is a difference between a record kept in the regular course of biz then irregularly used in trial and one prepared solely for the purpose of prosecution. There is a diff from assembling records which exist and creating new ones.
Melendez-Diaz’s application to the military’s urinalysis program strikes me as like the picture in which some people see a young lady while others see an old hag:
http://www.moillusions.com/2006/05/young-lady-or-old-hag.html
Some people instantly react, “Of course Melendez-Diaz requires confrontation of the analysts whose statements are recorded in the lit package.” Others instantly react, “Melendez-Diaz doesn’t change anything.” Interestingly, the Air Force’s trial judiciary split between those two camps.
Two things, first I see an old hag eating a young lady, and second some of those other galleries on that site are…disturbing.
As COL Sullivan points out, there are two ways to look at the “picture.” But, the problem is that evidentiary considerations are not necessarily co-extensive with the right of confrontation. One can easily, as M-D itself points out, satisfy relevant evidentiary requirements, e.g., business records, but that does not address the Confrontation issue.
If the “data” serves to prove a fact that is part of an element of the offense, e.g., the substance was THC, clearly the accused has a confrontation right. The more subtle issue in Blazier, is not that he had the right to confront and cross-examine the person/expert who testified as to the conclusions as to the drugs identity, which of course he did, but did Blazier have a right to confront the person/people doing the actual testing and generating the raw data, which then formed the predicate for the expert’s conclusions?
Hammond v. Indiana [the companion case to Davis v. Washington], seems to supply the answer – “an investigation into possibly criminal past conduct….” triggers the right of Confrontation. That is the precise function of the lab rats!
Drugs are bad. We should not worry about bringing these test tube jockeys to testify…the tests say what they say!!!
Sometimes the labs tell us that the tests say what they say about the wrong servicemember. The Air Force Drug Testing Laboratory recently reported a false positive to an airman’s unit because the lab had confused his lab accession number with that of another sample. The testing isn’t foolproof. As the Supreme Court observed in Melendez-Diaz, subjecting the analysts who report the sample positive to cross-examination is useful both to catch incompetent analysts and to deter untruthful ones. And as the problems with both the Brooks Lab and the Army Crime Lab demonstrate, the military justice system has had to deal with both types.
Since Crawford, confrontation is always required for testimonial evidence, and (also according to Crawford) business records aren’t testimonial. This was the starting point of my analysis.
Urinalysis records may be unreliable, untrustworthy, and highly prejudicial to the Accused, but these are all issues for cross-examination of the expert and a M.R.E. 403 review. They don’t change the Crawford analysis for confrontation.
Some of the comments above seem to completely miss the point that the “packages” are the actual, contemporaneous, printed urinalysis results. I assume this is because these folks have never seen one of these packages.
Others miss the fact that in Melendez-Diaz (Massachusetts) and Briscoe (Virginia) a sworn affidavit was used instead of sworn testimony to prove the existence of a drug. I assume this is because these folks have a hard time accepting this type of huge exception to the hearsay rule.
In courts-martial an expert witness reviews the laboratory business records and then testifies, and is cross-examined, about the process and result. This is factually distinct from Crawford, Melendez-Diaz, and Briscoe. It’s also the whole point.
I didn’t go into the “what if there wasn’t an expert” because those aren’t the facts, but I think it’s safe to assume that in such a case the defense would get an expert from the lab just so they can cross-examine (beat up on) him over the troublesome history of urinalysis, laboratories, etc.
The rest of my original post is really just about how bringing in the entire lab would be a waste of time, money, and common sense.
that sure didnt seem to be what your original post was about.
If that is now your point, well, yeah, sure, you dont bring in the entire lab. Just who you do bring in however is still up for debate.
Sometimes, I amazed how intelligent and accomplished practicioners of the law can attempt to advance arguments that lacks common sense.
I dont see how once a urinalysis is positive and the sample now needs to be tested in a more forensic sense in preparation for a trial the conclususion on its face does’nt become testimonialas as it relates to people involved in the actual testing.
Once the government hires someone to conduct urinalysis, its for the ppurpose of prosecution and seperation of potential offenders of the government’s anti drug policy.
The government does not simply issue reprimands for postive urinalysis. The government most of the time prosecutes.
Given the government’s track record with labortary testing USACIL etc, I dont believe anything should be taken for granted as it relates to the quality and veracity of any government testing.
The conclusions of a postive urinalysis aids and supports the government prosecution, hence its testimonial. Someone has to calibrate those machines, what if they were done incorrectly, when it comes to testing anything the methods and quality of testers need to be explored through actual testimony in my opinion.
Some highly credentialed quack in a suit vouching for the veracity of test he did’nt conduct just seems more than alittle mocking.
Here is an example…… While in law school a few moons ago in Philadelphia PA,I was cited for speeding, while in court to contest the ticket as I was waiting for my citation number to be called and I realized the whole thing was a dog and pony show.
Philadelphia traffic court had an an officer who read the citation to the judge but not the actual citing Officer. the judge then made a decision based on the text of the ticket.
The Officer reading the ticket basically vouches for the veracity of the ticket. I challenged this explaining to the judge why I believe that set up was a travesty since I was the only one in court who knew what happened the day of the citation. The judge launch into this diatribe about the City Philadelphia being unable to afford to have every Officer who cites somEone to BE in court for the trial.
I pounce upon his assertion that this was a trial and stated eloquently thats exactly the reason why I did’nt believe he was in a position to rule against me since I could ‘nt confront the Officer who issue the citation on behalf of the city.
Result, citation dismissed to the cheers of the court room, lesson, everything about the law is’nt necessarily complicated somethings are common sense.
hey! my first win, while this was some poor traffic judge he saw my common sense argument however rudimentary at the time.
Zach, if you were on trial bringing the whole lab wont seem as a waste of money and time. The government decided to bring a case, as a defendant I would’nt care how much it costs the government to prosecute me or how much of the government’s time would be wasted if I wanted and intended to dispute every minute detail of the governments case that the judge would allow.
Thats the whole point of being able to mount a defense, to be able to defend at any cost within the ethical pervue of our professional obligation to represent our clients zealously and without prejudice.
I dont know about you, but I have no problem burying the government in a mountain of paperwork and cost if I believe it would help my client’s case.
Damian, I feel for the your clients if you are this long winded.
I see Blazier winning this one. CAAF rules in his favor.
Because, as discussed in my post, the sample isn’t positive, to any acceptable degree of scientific certainty, until after the GC/MS confirmation. Heck, if Blazier wins on this point (first test admissible, subsequent test inadmissible) the Government might just stop doing the immunoassay. That’s bad for potential defendants!
Actually, many (and I suspect most) positive urinalysis cases do not end up at a court-martial. The statistics for this were not part of the Blazier record. As discussed above, I consider this to be a major omission.
Lots of smart military attorneys share this view, which is part of why I am so interested in Blazier, but I can’t find any supporting caselaw. To the contrary, there’s lots of evidence that can be unfavorable to the accused that is not testimonial: public records, chain of custody documents, commercial documents, etc. The inculpatory/exculpatory distinction applies to confrontation so far as the Government doesn’t have a confrontation right to require exculpatory witnesses to appear, but it’s otherwise irrelevant.
Lots of members panels agree with you, and give acquittals.
Best I can tell, your traffic citation was a Summary Offense under PA law (Title 75, Sec. 6501). That probably doesn’t meet the 6th Amendment threshold of “criminal prosecution.” Another example of this is a federal petty offense (which can land you 6 months imprisonment).
You don’t have a problem with burying the Government, but your Bar might.
In fact, here’s an example. Right now I’m both a SAUSA and a Trial Counsel. In a recent court-martial, the military judge rejected a defense motion as having “no basis in law or fact.” Had that been my motion, and the statement directed at me, I’d be looking at an inquiry by the DOJ Office of Professional Responsibility.
At the end of the day, burying the Government is precisely what Blazier is about. Calling a crowd of lab personnel to give parrot-head testimony (“I don’t remember that particular sample, but I always do it the same way which is the way they tell me to do it”) needs to be declared Constitutionally-required in order to get past M.R.E. 403, which rightly recognizes that the witnesses may be relevant, but calling them to testify is a complete waste of time.
At the Blazier argument, Judge Erdmann seemed very concerned with nailing the government down on whether it must present SOME witness in connection with the litigation package. But the government’s position on that question is clearly no. If Zachary is right and the records are business records and the Confrontation Clause doesn’t apply, the government wouldn’t need to produce anyone from the lab. The TC could just throw on the results sheet with the handwritten “THC” or “COC” in the “RESULTS” column corresponding to the accused’s SSN and that would be that.
That isn’t a hypothetical. In at least two of the cases in which AFCCA ruled for the government on an Article 62 appeal of a military judge’s ruling applying Melendez-Diaz, AFCCA ordered the litigation package admitted into evidence even though no one from the Brooks Lab had testified. Accordingly, when the case returns to trial, the government could rest its entire case on those documents. As a matter of trial strategy, of course, the government would be wise to produce an expert. But, according to AFCCA, as a matter of constitutional and evidentiary law, the litigation package is admissible without the government ever doing so.
“Under our case law, where scientific evidence provides the sole basis to prove the wrongful use of a controlled substance, ‘[e]xpert testimony interpreting the tests or some other lawful substitute in the record is required to provide a rational basis upon which the factfinder may draw an inference that [the controlled substance] was [wrongfully] used.’” United States v. Green, 55 M.J. 76, 80 (CAAF, 2001) (citing United States v. Murphy, 23 MJ 310, 312 (CMA, 1987)) (emphasis added). This is discussed in my original post.
Murphy and Green are why the Government brings the expert, and will continue bringing the expert, no matter what happens in Blazier. It’s also why Melendez-Diaz, etc., don’t apply.
I don’t think the business record concept will bear as much weight as Zachary seems to attempt to put on it. Consider this from the Melendez-Diaz majority opinion [and, no, it's not a plurality opinion. Justice Thomas wrote that he "join[s] the Court’s opinion in this case”]; he didn’t concur in the result and Justice Scalia’s opinion is desigated as “the opinion of the Court”]: “But the affidavits do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless.” Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2538 (2009). The majority later adds, “Whether or not they qualify as business or official records, the analysts’ statements here–prepared specifically for use at petitioner’s trial–were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.” Id. at 2539-40.
The majority thus makes clear that a document can be a business record and yet still be inadmissible under the Confrontation Clause.
I understand Zachary’s additional argument that the litigation packages don’t fall under the Confrontation Clause because he concludes that they weren’t prepared for trial. But it isn’t the case that they aren’t subject to the Confrontation Clause simply because they’re business records.
Zachary, note that Green doesn’t even hint that an expert must come from the testing lab or have have any knowledge of the testing lab’s procedures. Green was all about the issue of how to prove that use was WRONGFUL. That was an outgrowth of CAAF’s early Campbell opinion, which had significantly raised the bar for what the government must prove to satisfy the wrongfulness element. See United States v. Campbell, 50 M.J. 154 (C.A.A.F. 1999), supplemented on reconsideration, 52 M.J. 386 (C.A.A.F. 2000). SO Green says the government must produce an expert “or some other lawful substitute” to support an inference that the use was wrongful. That has nothing to do with the lab’s testing procedures and such an expert need not have any connection with any drug testing lab. In fact, just about any medical doctor could provide the kind of testimony that Green concerns.
Agreed.
But I think that SCOTUS was looking at the affidavits as affidavits (that may also be a traditional business record). They’re the functional equivalent of testimony, and confrontation (the “clarification” to Crawford).
The lab printouts, which are meaningless (inadmissible) without an expert to interpret them, are a different matter altogether.
Zachary’s last point leads us back into the particulars of the litigation package that is introduced in each case. I’m not a counsel in Blazier, but I’m pretty sure that the documents introduced in that case included not only printouts of testing, but also forms with certifications (labeled as such in capital letters) from lab officials, handwritten testing results, and signatures attesting to various reviews. Putting aside for the moment whether the data printouts are testimonial statements, these various certifications–many of which relate to results obtained literally days before the certification is made–do appear to meet the various definitions of testimonial, including Justice Thomas’s from his Davis concurring/dissenting opinion.
It seems to me that the government wants to have its cake and eat it too. It wants to have the added thumb on the scale of a bunch of lab officials signing off on the test results to reassure the members that the testing is rigorous and that they needn’t fear false positives. But the government doesn’t want to bear the cost of subjecting all of those lab officials to cross-examination. Blazier will tell us whether the government can put its thumb on the scale in that way cost-free.
Well I believe COL Sullivan has pretty much sealed the deal on this debate to some extent.
A. If the documents are business records, they could still be subject to a Crawford analysis
B. Expert testimony about the scientific validity of the testing is a different kettle o’ fish from confrontation of the experts who did the testing
C. Gov’t gets the benefit of folks/experts signing off a document that says everything was done “copasetically” while being able to simply dump it in the laps of the panel without any testing of that verification.
At the end of the day, a collection of test results means nothing without someone authenticating those results/verifying they were done, in this case, to standard.
So the argument that Mr. Spillman makes that these are merely a collection of lab results, just does not stand up to scrutiny.
CAAF forcast the results in Briscoe, in U.S. v. Harcrow, 66 MJ 154 (CAAF 2008), holding that the Confrontation Clause applied to the lab reports at issue. But, in Blazier, the Court is going to have to re-address the holding in U.S. v. Magyari, 63 MJ 123 (CAAF 2006), regarding the lab techs in light of Melendez-Diaz.
I commend an article by Prof. Richard Friedman [counsel in Briscoe], “CONFRONTATION: The Search for Basic Principles,” 86 Geo.L.J. 1011 (1998); and Prof. Amar’s, “CONFRONTATION CLAUSE FIRST PRINCIPLES: A Reply to Professor Friedman,” 86 Geo.L.J. 1045 (1998), for enlightenment on the subject.
Insofar as I am aware, the Brooks lab’s urinalysis department is solely to enforce the DoD urinalysis program. And the response with a positive test is always to bring disciplinary action. How is this any different than the state lab in Melendez-Diaz, unless you want to overlook the U.S. Supreme Court’s holding in that case to try to relieve the government’s obligation to produce the witness? Of course, there are ways around this.
The MCM can be amended for a notice and demand provision in drug cases. Government gives notice of intent to use labratory packages, and then the defense can demand production of the analyst. That approach, in my view, is the answer. The answer is not to pretend that the U.S. Supreme Court case directly on point is somehow distinguishable based on dubious differences (business records — in that sense of things, the affidavits in Melendez-diaz were likewise business records).
I don’t see any comments referencing the Magayri decision of 2006, which held that records compiled for non-litigation purposes (like records of drug test results) are not “hearsay,” but when records are compiled for litigation purposes (such as court-martial), then they are “business records” which are subject to Crawford analysis. I successfully prevented a USACIL agent from testifying about DNA results because of Magayri. What impact (if any) does Melendez-Diaz have on Magayri?
I don’t know all of the facts of this case, and haven’t listened to the audio tape, but if there was no objection at trial, it doesn’t matter what purpose the lit packet was prepared for. If there was no objection at trial, then I would consider the matter waived.
I apologize if I have misspelled Magayri.
I’ve been in many a UA case, and agree all positive UAs have the potential to result in courts-martial. But I’d bet over 50% do not (and the percentage probably varies widely by drug). Some result lesser or no action (e.g., marijuana or taking prescriptions mistakenly); some (like oxycodone) may be caused by valid prescriptions and are caught by a Medical Reviewing Officer; and some cause other results, like being referred to drug counseling or being pulled from sensitive duties (arms-bearing, flightline maintenance, etc.) while action is decided. My data is no better than anyone else’s — anecdotal — but I can say with a straight face that I have seen multiple examples of all of the above. Thus, I’d argue the UA program does serve multiple purposes. If a DTR is mostly a compilation of records created beforehand, for potentially multiple purposes (one of which is a criminal trial), that sounds like a classic business record.
The complication is that for certain drugs, trial is by far the likely ultimate outcome (e.g., cocaine, MDMA, heroin). There’s some merit that the calibration of the GC/MS specifically for these drugs is akin to analyzing DNA rape kits or testing bullet casings from a crime scene: most folks know there’s little medicinal use for heroin and chances are it will be a court-martial.
But I’m not sure the solution is for the court to judicially reorganize the drug testing lab (which will certainly be the response if Blazier succeeds). And if he does succeed, does that also mean the manufacturers of the GC/MS, or presumptive positive field test kits used by field agents, and all their subcontractors and suppliers, will also be required to testify about the reliability of their products?
IMHO, the fact that criminal trial is one of several known potential results does not automatically invoke a Confrontation right. There has to be a more rigorous test for business records than guesstimating the likelihood that a positive UA result will go to trial.
But as noted above, these are effectively entities of the state (technically Feds but you get the point). Their only purpose is for some sort of action directed either administratively or criminally against Soldiers. Seems to me the proper result of such an enterprise is that it should be treated like any other state entity with said design.
Hard to imagine after Crawford how you can go back to simply having a collection of signatures with no one to testify at all that things were done properly, what their error rates are, the history of mistakes at the lab, etc.
The incentive would be to simply farm out law enforcement activities like this to private “business.”