Available here.  Judge Ryan wrote the majority opinion.  Judge Baker, joined by Judge Stucky, concurred in part and dissented in part.

The majority held that not only the cover memorandum, but also the specimen custody document, “were plainly and obviously testimonial.”  CAAF reversed NMCCA’s holding and remanded for a harmless error determination.

CAAF states:

Where, as here, an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information.

Thus, “recent case law from this Court and the Supreme Court requires an examination of individual statements that goes beyond Magyari.”

CAAF concluded that it was “plain and obvious error to admit the specimen custody document certification.” CAAF explained:

This certification is a formal, affidavit-like statement of evidence that not only presented the machine-generated results, but also indicated “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” See Bullcoming, 131 S. Ct. at 2715 (holding that the out-of-court declarant “certified to more than a machine-generated number” when the statements included affirmations regarding accuracy and compliance with laboratory protocol).  Such a formal certification has no purpose but to function as an affidavit. Because the declarant, “R. Flowers,” was not subject to cross-examination, admission of the specimen custody document plainly and obviously violated the Confrontation Clause.

The majority held that “we do not find that the stamps, signatures, and other notations on the chain of custody documents and data review sheets, or the results report summary are ‘plainly and obviously’ testimonial in the context of review for plain error.”  But the majority cautioned that “[a]n objection at trial, followed by more extensive development of the evidence and argument on its nature, might
tip the balance the other way in an appropriate case.”

Unfortunately I’m under the gun big time tonight, so either one of my CAAFlog colleagues will provide further details or I’ll offer more thoughts about the opinion later in the week.

4 Responses to “CAAF issues its opinion in Sweeney”

  1. stewie says:

    “Where, as here, an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information.”

    Amen brother (and sister).

  2. RY says:

    Well, it looks like a matter of days before we see remands for a number of the trailers. Anyone know offhand if there were any trailers not listed in FN10?

  3. aflapr says:

    While Al Marinari is a nice guy and has a long histpry at NDSL Jax, he is not a “Dr.” He has a bachelors and completed some work towards a masters. Did nobody at any level (trial, NMCCA, CAAF, etc) catch that?

  4. Maybe, Maybe Not says:

    Any more opinions to offer on the ramifications of this case on UA courts-martial, especially in light of “JAJG accordingly interprets Sweeney as only requiring the exclusion of the certification on the DD Form 2624 – not the entire document. The decision in Sweeney reaffirms JAJG’s position that prosecutors should continue to prosecute UA cases by offering only machine-generated raw data through a qualified expert witness who may rely upon the drug testing report under MRE 703 … and who must provide his or her independent opinion about the test result — and not repeat testimonial portions of the DTR.”