Here’s a link to an interesting unpublished ACCA decision setting aside a marijuana use conviction on confrontation grounds. United States v. Harrington, No. ARMY 20090442 (A. Ct. Crim. App. July 29, 2011) (per curiam).
While the defense had not challenged the admissibility of the Laboratory Documentation Packet (LDP) at trial, on appeal Private Harrington’s counsel argued that the LDP’s admission violated the Confrontation Clause. The government acknowledged that many of the LPD’s pages “may have been testimonial,” but argued that a surrogate expert witness “satisfied appellant’s right to confrontation.” Nope, ruled ACCA.
First, ACCA concluded that the issue had not been intentionally waived, so it applied a plain error analysis. ACCA then reasoned:
We agree with the parties that portions of the LDP are testimonial, but reject the government’s argument that a surrogate witness satisfied appellant’s right to confront those persons making the testimonial statements contained within the LDP. The use of a surrogate witness “who did not sign the certification or perform or observe the test” in question is not a constitutional substitute for the cross-examination of the declarant whose testimonial statement is actually admitted into evidence. Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S.Ct. 2705, 2710 (2011); See also United States v. Blazier, 69 M.J. 218, 223–24 (C.A.A.F. 2010). Accordingly, we find that the admission of the LDP was plainly erroneous. Furthermore, after reviewing the entire record before us, we are not convinced that the admission of the LDP was harmless beyond a reasonable doubt in this case.