On Friday, CAAF granted review of these issues:

I.   THE LOWER COURT HELD THAT THE ADMISSION, OVER APPELLANT’S OBJECTION, OF TWO PIECES OF TESTIMONIAL HEARSAY FOUND WITHIN THE DD FORM 2624 WAS HARMLESS ERROR BEYOND A REASONABLE DOUBT.  BUT IT MISAPPLIED THE SWEENEY FACTORS AND DID NOT CONSIDER THE BLAZIER II FACTORS IN ASSESSING PREJUDICE.  DID THE LOWER COURT ERR IN HOLDING THAT THE TESTIMONIAL HEARSAY DID NOT CONTRIBUTE TO APPELLANT’S CONVICTION?

II.  THE LOWER COURT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN ADMITTING, OVER APPELLANT’S OBJECTION, THE CHAIN-OF-CUSTODY DOCUMENTS AND INTERNAL REVIEW WORKSHEETS BECAUSE THEY WERE NON-TESTIMONIAL.  ARE THESE NON-MACHINE GENERATED DOCUMENTS AND WORKSHEETS TESTIMONIAL?

United States v. Tearman, __ M.J. __, No. 12-0313/MC (C.A.A.F. March 23, 2012).  NMCCA’s opinion is published at 70 M.J. 640.

CAAF granted review just 66 days after NMCCA issued its opinion.

3 Responses to “Significant Confrontation Clause CAAF grant”

  1. Zachary Spilman says:

    II.  THE LOWER COURT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN ADMITTING, OVER APPELLANT’S OBJECTION, THE CHAIN-OF-CUSTODY DOCUMENTS AND INTERNAL REVIEW WORKSHEETS BECAUSE THEY WERE NON-TESTIMONIAL.  ARE THESE NON-MACHINE GENERATED DOCUMENTS AND WORKSHEETS TESTIMONIAL?

    So, are chain-of-custody documents testimonial? Polish up the golden CAAF if the court does anything substantial with that question.

  2. Dwight Sullivan says:

    The Supreme Court has already said that portions of a chain of custody document might be testimonial, thus allowing the defense to require the declarant to appear in court:  “It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.”  Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 n.1 (2009).