On 25 June 2009, the Supremes issued a major criminal procedure case: Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). The case caused an immediate stir and generated plenty of cries that the sky is falling (much like CAAF’s decision in United States v. Jones, 68 MJ 465 (2010), which we’ll discuss further up the top-10 list). The Virginia General Assembly convened in a special session during the summer of 2009 to deal with Melendez-Diaz.
In 2010, the tsunami that was Melendez-Diaz roiled the military justice system’s waters. First came last term’s CAAF decision in United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010). That decision held that the cover page on the standard military drug lab litigation package is testimonial and may not be admitted over a confrontation objection without making the declarant available for cross-examination. Blazier I, however, left unclear how much of the remaining package, if any, constitutes testimonial statements implicating the accused’s confrontation rights.
Then came this term’s decision in Blazier II, __ M.J. __, No. 09-0441/AF (C.A.A.F. Dec. 1, 2010). Blazier II is significant in that it laid out a path that the government can follow to avoid a Confrontation Clause issue when presenting evidence that an accused’s sample tested positive for metabolites of a controlled substance:
[A]n expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay machine-generated printouts of machine-generated data and/or (2) rely on, but not repeat, testimonial hearsay that is otherwise an appropriate basis for an expert opinion, so long as the expert opinion arrived at is the expert’s own. However, the Confrontation Clause may not be circumvented by an expert’s repetition of otherwise inadmissible testimonial hearsay of another.
Id., slip op. at 8-9 (internal citations omitted).
But Blazier II doesn’t indicate which parts of a drug lab’s litigation package are testimonial, thus leaving for future cases the issue of which portions of the litigation package an expert without personal knowledge of the testing can repeat without offending the Confrontation Clauset. CAAF has a number of Blazier II trailers on its docket that it could use to further develop the law. Or it could remand those cases to the CCAs for them to consider the issues left unresolved by Blazier II. CAAF has already remanded the Blazier case itself to AFCCA to determine whether the Confrontation Clause error in that case is harmless.
Additionally, the Supreme Court will hear a case this term that raises the same issue as Blazier II: Bullcoming v. New Mexico, 09-10876, which will be argued on 22 February 2011. While it seems likely that the Supremes will reach the same conclusions in Bullcoming that CAAF reached in Blazier II, Bullcoming carries the potential to further roil the waters surrounding the admissibility of drug testing results in the military
My colleague LtCol Chris Thielemann has accused me of being obsessed with Melendez-Diaz, so of course we’ll continue to follow Blazier, Bullcoming, and all of the issues associated with those cases throughout 2011.