In United States v. Sweeney, 70 M.J. 296 (C.A.A.F., 2011), CAAF found that portions of a urinalysis specimen custody document were “plainly and obviously testimonial,” and that their admission constituted plain error. In its recent opinion in United States v. Alicea, No. 201100366 (N-M Ct. Crim. App., January 12, 2012) , the N-MCCA applied Sweeney to find that certain notations on the urinalysis specimen custody document present formalized, conclusory affirmations.

In addition to reporting the official test result for any positive sample in Block G, Block H certifies “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” In the instant case, Block G reflected that the appellant’s sample tested positive for “cocaine,” and Block H was signed by two Final Certifying Laboratory Officials (FCLOs), LT L.A. Estralla, who was in training, and R. Flowers.
Slip op. at 3.

In the instant case, Blocks G and H of the specimen custody document, present a formalized, conclusory affirmation that is identical to the certification in Sweeney. Consequently, we find these two portions of the specimen custody document to be testimonial hearsay and their admission, over defense objection, to be in error: the FCLOs who signed the attestation were not subject to cross-examination, and the testimony of Mr. Sroka as a substitute or surrogate witness did not satisfy the Confrontation Clause. Moreover, the testimony of Mr. Sroka concerning the certification was also admitted in error, as an expert may not act as a conduit for repeating the inadmissible testimonial hearsay of another.
Slip op. at 5.

The exclusion of Block G is significant, as it appears to be a summary of the underlying findings. At this rate, the excluded portions of a urinalysis report may soon exceed the admissible.

3 Responses to “NMCCA reverses conviction in Sweeney trailer”

  1. Who's your daddy says:

    I admittedly haven’t been following this jurisprudence too closely, but on its face it appears to me that CAAF is going far beyond where SCOTUS would go.  My view was that CAAF “was” ahead of SCOTUS by requiring a witness to testify along with the lab reports (akin to 31b leading to Miranda).  

    I think to get past the CAAF’s more expansive view of the Confrontation clause (thereby restricting more evidence) – the gov’t should simply put in the chain of custody documentation; establish which sample corresponds to that accused; and solicit from the lab expert his/her opinion as to whether sample X tested positive for the metabolite y.  If the defense wants to cross them on whether they actually performed the test then go for it.  The confrontation clause is satisfied b/c the evidence is coming from the witness.  I don’t think hearsay is a problem b/c the evidence upon which the expert relies is the type experts in the field rely upon (702) and/or the testimony relies upon business records that need not be shown to the members, but would satisfy admissibility of the testimony.

    Just keep most of the report out — who cares — the prima facie case is established just as effectively.  Still the same 50-50 shot of a conviction.


  2. Cheap Seats says:

    WYD – You have identified the precise issue in Williams v. Illinois.  Once SCOTUS issues its decision in that case, we shall see if CAAF was out in front, or has gone too far.  Stay tuned Confrontation Clause fans!!

  3. Anonymous says:

    CAAFlog seems to overlook Army Court decisions, heavily favoring Airforce and Navy opinions.  For example, did you notice that the Army Court applied Sweeney months ago in US v. Matos-Martinez?