In May we discussed the NMCCA’s unpublished opinion in United States v. Porter, No. NMCCA 201100188 (N-M. Ct. Crim. App. Apr. 26, 2012), in which it applied CAAF’s opinion in United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011) to find a violation of the appellant’s Sixth Amendment right to confrontation in the admission of a drug testing report, and set-aside the findings and sentence.

What was interesting in May was that the CCA found the error was preserved by the defense (which objected at trial), but then applied a plain error analysis. Generally, preserved constitutional errors are reviewed not for plain error, but for harmlessness beyond a reasonable doubt. See, United States v. Blazier, 69 M.J. 218, 226 (C.A.A.F. 2010) (citing United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F.2009)).

In an opinion dated yesterday, the CCA “clarif[ied] the standard applied by the court in resolving the assignment of error (plain error or harmless beyond a reasonable doubt).” United States v. Porter, No. NMCCA 201100188, slip op. at 1-2 (N-M. Ct. Crim. App. June 28, 2012). “However, considering the Government’s reliance on pages 54 and 154 of PE 15, we cannot say that the erroneous admission of these testimonial statements was harmless beyond a reasonable doubt.” Slip op. at 9 (emphasis added).

Judge Lutz, who found the error harmless beyond a reasonable doubt in the original opinion, still finds the error harmless beyond a reasonable doubt, and dissents.

One additional note: Back in May I wondered if the entire report wasn’t inadmissible hearsay because it was prepared at the commander’s request. “The treating physician independently ordered a toxicology screen for strictly medical purposes that indicated positive results for marijuana and cocaine.” Slip op. at 2 N.2. But,”while the appellant was receiving treatment, his commanding officer authorized a blood and urine sample to search for evidence of drug use. The blood and urine samples were turned over to the Criminal Investigative Division, which sent the samples to the AFIP lab for testing. AFIP performed a battery of tests and concluded that the samples were positive for illegal controlled substances, specifically marijuana and cocaine.” Slip op. at 2 (citations to record omitted).

The opinion addresses this (I missed it in the original). “In the context of drug laboratory reports, the Court of Appeals for the Armed Forces (CAAF) has recently re-focused attention to the purpose behind each statement in the report, rather than the purpose for the original collection of evidence. … CAAF has held that machine-generated data and printouts are not statements and thus not hearsay because machines cannot be considered declarants.” Slip op. at 4. While dicta in the resolution of this case, this view implies that, so long as the quest for evidence is conducted by machines, no witness need appear in court in order to admit the results produced by those machines.

Almost makes me want to say “I warned you”:

However, I think there is a new issue emerging regarding the testimony of a machine. In the audio recording of oral argument at 44:30 we hear:

The machine cannot be a declarant, there cannot be hearsay, you can’t cross examine the machine, and therefore there’s no 6th Amendment problem.

This, I think, is terrifying, and has the potential to be the next Crawford. Just as the railroad cannot institutionalize the preservation of evidence for litigation and maintain its business character, the Government cannot automate the collection of evidence and avoid confrontation. The automaton is poised to become the new “indicia of reliability.” But this battle is already being fought over similar facts, as criminal defendants seek access to the source code for breathalyzers. Just as the breathalyzer performs some potentially arguable math, the contents of the printouts that are the business records of the drug screening laboratories are dictated by some programming which is a human construct, preformatted and waiting for a translation of electronic impulses into English characters and Arabic numerals. While it’s not the technician who pours the sample or pushes the button, someone is speaking on those pages.

But Blazier will not identify that speaker, or resolve the issue of confronting him.

Deconstructing Blazier, CAAFlog, January 29, 2010.

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