Available here. Judge Ryan writes for the majority. Chief Judge Baker concurs in part and in the result. NMCCA’s opinion is affirmed.
CAAF holds: “[W]e agree with the NMCCA that the chain-of-custody documents and internal review worksheets at issue in this case are nontestimonial.”
CAAF explains: “The language used by the Supreme Court to describe whether and why a statement is testimonial is far from fixed. . . . However, under any of the various formulations of testimonial statements, neither the chain-of-custody documents nor the internal review worksheets at issue qualify.” Unlike drug testing report documents that CAAF has previously determined to be testimonial, “the process of creating the challenged statements was initiated without any external request, before Appellant was charged, and before all, or in the case of the chain-of-custody documents, any testing was complete. . . . The technicians’ signatures and annotations on the documents at issue were made under circumstances, which, taken as a whole, establish that they were made for an administrative rather than an evidentiary purpose.” CAAF then examines the various steps leading to the notations to indicate their adminstrative nature.
But the opinion also offers this caveat:
We reiterate that the fact that the government may introduce, subject to M.R.E. 803(6), nontestimonial hearsay via the chain-of-custody documents and internal reviewworksheets contained in drug testing reports does not preclude an accused from seeking to call as witnesses those who handled the urine specimen and performed the screens, rescreens, and confirmation tests to challenge, among other things, the accuracy, validity, and reliability of the test results. Blazier II, 69 M.J. at 225 n.6 (citing Compulsory Process Clause, U.S. Const. amend. VI; Article 46, UCMJ, 10U.S.C. § 846 (2006); Rule for Courts–Martial (R.C.M.) 703(a)). Moreover, if Appellant were challenging particular steps in the chain-of-custody or internal review process, as opposed to objecting to the introduction of nontestimonial signatures and notations, the government may choose to establish those challenged steps through live witness testimony, or choose not to at its own peril. See Melendez-Diaz, 557 U.S. at 311 n.1.
The harmless error analysis relies heavily on Judge Ward’s published opinion for NMCCA.