On Tuesday, October 23, 2012, at 9:30am, CAAF returns to the annual question of the impact of the Confrontation Clause on drug testing reports used in urinalysis cases, with oral argument in United States v. Tearman, No. 12-0313/MC. The case presents two issues that question: (1) whether the NMCCA erred when it found that the trial court’s erroneous admission of certain testimonial portions of the drug testing report was harmless, and; (2) whether other portions of the report (the chain of custody and internal review worksheets) are also testimonal.
In December 2010, a special court-martial composed of officer members convicted Lance Corporal Tearman of one specification of wrongful use of marijuana, in violation of Article 112a, UCMJ, and sentenced him to the relatively-severe sentence of reduction to E-1 and a bad-conduct discharge. Thirteen months later, the NMCCA found that portions of the drug testing report offered into evidence by the prosecution were improperly admitted because they are testimonial. In a published opinion, the court found:
In contrast to the internal review worksheets described above, the DD 2624 is the official Department of Defense specimen custody form used by the NDSL for certifying and reporting urinalysis test results. In addition to indicating the official test result reported by the NDSL (“THC” in block G), block H certified “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” These portions of the DD 2624, when taken together, present a formalized, conclusory affirmation, much like the certificates of the analysts in Melendez-Diaz and Bullcoming, and identical to the certification in Sweeney.
United States v. Tearman, 70 M.J. 640, 643 (N.M.Ct.Crim.App. 2012). However, the court then found “that any error in admitting this evidence was harmless beyond a reasonable doubt.” Id. at 644. The court analyzed the five factors relevant to this conclusion that were identified by the Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673 (1986) and adopted by CAAF in United States v. Sweeney, 70 M.J. 296, 306 (C.A.A.F. 2011): (1) that the testimonial notations were relatively unimportant in relation to the Government’s expert witness; (2) that the notations were cumulative to the expert witness’s testimony; (3) that the expert witness independently arrived at the same conclusion as the certifying notations; (4) the lack of confrontation of the declarant; and (5) the strength of the Government’s case, which included an admission by the Appellant that he was exposed to marijuana “when guests at his wedding were using marijuana on the steps of the church.” Id. at 645, n. 19. The court found that the testimonial evidence “played no role in the Government’s case,” and approved the findings and sentence. Id. at 648.
The Appellant then sought review by CAAF, which was granted a mere 66 days later on the following 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?
The Appellant’s brief to CAAF begins by arguing that the Van Arsdall factors adopted in Sweeney and applied by the NMCCA are non-exclusive, meaning that the CCA’s analysis was too narrow, but that even if the Van Arsdall factors are exclusive, the CCA erred in finding that theAppellant did not suffer material prejudice.
Advancing this argument, the Appellant reviews the CCA’s analysis (summarized above) and notes that the accuracy and reliability of the urinalysis is critical in a case such as this. He also argues that the testimonial notations were not cumulative with or corroborative of the expert’s opinion, because the notations provided the basis for the expert’s opinion. He characterizes the Appellant’s admission to the Sergeant Major as evidence of innocent ingestion, and not evidence that strengthened the Government’s case. Finally, the Appellant argues that the CCA failed to apply a critical factor identified in Blazier II: “whether the expert witness repeated the inadmissible hearsay in arriving at an expert opinion.” Appellant’s Br. at 12. Because the Appellant sees the testifying expert’s conclusion as merely an echo of the non-testifying laboratory worker’s statement, the Appellant argues that witness did repeat the inadmissible hearsay.
On the second issue – whether it is error to admit chain-of-custody documents and internal review worksheets in urinalysis cases – the Appellant explains that Sweeney was a case where there was no objection at trial, while in this case the defense did object to admission of the documents at trial. Accordingly, “this case provides an opportunity for this Court to settle this issue under an abuse-of-discretion analysis.” Appellant’s Br. at 14. Noting that Sweeney established that the block H laboratory certification is testimonial, the Appellant argues that the chain of custody documents, prepared before the certification, are the basis for the certification and are therefore testimonial. Similarly, the internal review documents are testimonial because part of the drug laboratory’s mission is to “provide drug tests that they can reasonably expect to be used in court.” Appellant’s Br. at 16-17.
The Government’s brief begins with the assertion that “[the expert] based her testimony that Appellant’s sample contained THC from her reading of [only the] non-testimonial machine–generated results to the Members and her independent knowledge of the drug lab’s procedures.” Gov’t. Br. at 8 (emphasis added). However, the Government does not explain how the expert limited her testimony to just the non-testimonial portions. The Government also notes the many conclusions in the expert’s testimony, including that:
the DTRs showed no error codes; the quality control samples tested within their specifications to show the tests’ accuracy; the instruments were calibrated daily; wash tubes were used, showing no contamination of the machines; that the autotune was functioning, showing the testing instrument was running according to manufacturer’s specifications; and finally, that the solvents were used, ensuring no contamination or carry over from a previous sample.
Gov’t Br. at 9. But, the Government does not explain how the expert arrived at these conclusions. The Government also argues that “[the expert] testified to the contents of the urinalysis documents independently and cured any effect of the error. The inadmissible testimonial certifications on the specimen custody document merely restated what is contained in the remaining portions of the non-testimonial DTRs and [the expert]’s testimony.” Gov’t Br. at 11. Yet the Government does not resolve the paradox of how the “inadmissible testimonial certifications,” which came first, “restated” the expert’s testimony, which came second.
Rather, the Government makes a somewhat-tautological argument that the expert’s testimony was admissible because it was the expert’s testimony:
As a result of her explanation of the computer-generated DTRs, her explanations of the DTRs and their indication that Appellant’s sample tested positive for THC was admissible and the Members properly relied upon it. Without [the expert’s] translation of the various nanogram and milligram levels regarding the DTRs computer-generated data, the data would have been unintelligible to the Members and the testimonial certifications meaningless, as they were unsupported by understandable evidence.
Gov’t Br. at 18. What’s missing here, of course, is any acknowledgement of the fact that “where scientific evidence provides the sole basis to prove the wrongful use of a controlled substance, ‘[e]xpert testimony interpreting the tests or some other lawful substitute in the record is required to provide a rational basis upon which the factfinder may draw an inference that [the controlled substance] was [wrongfully] used.'” United States v. Green, 55 M.J. 76, 80 (C.A.A.F. 2001) (quoting United States v. Murphy, 23 MJ 310, 312 (C.M.A. 1987)). Without the expert’s testimony the data wouldn’t have just “been unintelligible”; the Government’s entire prosecution of this case would have crumbled.
On the second issue, the Government argues that the certifications and chain of custody notations are not formalized in any fashion, and that “[a]n objective witness would not reasonably believe that the analysts’ annotations on the chain of custody and internal review documents would be available for use at a later trial.” Gov’t Br. at 24.
In a reply brief, the Appellant again argues that the expert’s testimony merely echoed the testimonial conclusion of the report that the Appellant’s urine sample was positive for THC. He also characterizes the testimonial notations as the only conclusive evidence to these critical points in the Government’s case, and attacks the Government for arguing essentially “that, when the Government violates the Confrontation Clause by introducing testimonial hearsay through a surrogate witness, the error is harmless as long as the surrogate is subject to cross-examination.” Reply Br. at 4.
Finally, the Appellant’s reply brief addresses the Government’s argument that the chain of custody and review documents are non-testimonial by arguing that “it would be perverse if the Government could circumvent the Confrontation Clause — implemented in part to prevent trial by affidavit –simply by making unsworn and unsigned accusations.” Reply Br. at 5. Of course, this begs the question of why the lack of formality creates the need for confrontation, rather that just providing fodder for cross-examination..
An amicus brief filed by the Air Force Appellate Defense Division in support of the Appellant largely restates the Appellant’s arguments. Notably, it highlights the way in which the Government’s expert relied on the testimonial notations at issue:
[The expert] answered no fewer than 12 questions in front of the members while reading directly from page 3 of the [drug testing report], which contained the testimonial hearsay in question.
Amicus Br. at 9. However, on the second issue regarding the chain of custody and review documents, the amicus brief resurrects an argument familiar from the days of Blazier I:
When an accused’s sample tests positive on at least one screening test, analysts must understand themselves, thereafter, to be assisting in the production of evidence. . . . At least after the first presumptive positive, the analysts and those handling the samples should have reasonably known that they were assisting the government in the production of evidence. Notably, the government offered no alternate purpose for creating the documents and worksheets at issue.
Amicus Br. at 13. In Deconstructing Blazier (written two and a half years ago), I noted that a criminal trial is the less-likely outcome of a positive urinalysis; criminal convictions really occur in a tiny percentage of cases. It was then-Judge (now Chief Judge) Baker who wondered during the oral argument of Blazier I:
Well you’ve posited the notion that the person who’s doing the confirmation tests, really doesn’t know whether it’s a quality control test, or sample, or whether it’s a sample headed toward a court-martial, but I’m wondering if there’s another category which is a positive sample heading to nonjudicial punishment, or no punishment, or a Meritorious Service Medal, or whatever…
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.
Sweeney, 70 M.J. at 303 (emphasis added). But the key point in this reasoning is the formal certification, not the reality of the “confirmation test.” Since the Appellant, Goverment, and Amicus all appear to agree that the chain of custody and review documents are not “formal certifications,” I’m skeptical that CAAF is going to find them testimonial, as opposed to merely ripe for attack on cross-examination. But, the Appellant’s argument that these documents are particularly important in the context of a “naked urinalysis” prosecution at a court-martial is enticing, and I could see CAAF giving them special consideration under these circumstances.
The two issues in the case provide somewhat opposite perspectives. The first issue looks back to see if the NMCCA failed to find prejudice in the admission of the testimonial statements, and the Appellant and Amicus make a strong argument that the NMCCA got this one wrong. The second issue looks forward, and the court must decide whether to permit the Government to continue to utilize significant portions of the drug testing report that are not machine-generated. This give Tearman the potential to be either a very big case, or a relatively-small one, and we’ll be listening for clues about the court’s direction during next week’s oral argument.
• NMCCA opinion
• Blog post: In the NMCCA
• Blog post: Significant Confrontation Clause CAAF grant
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Air Force Appellate Defense Division’s Amicus Brief
• Blog Post: Argument preview