CAAF decided the certified case of United States v. Porter, No. 12-5003/MC, 72 M.J. 335 (CAAFlog case page) (link to slip op.), on July 8, 2013, finding that portions of the drug testing report were testimonial and that their admission into evidence over Defense objection was preserved constitutional error that was not harmless beyond a reasonable doubt, and affirming the NMCCA’s opinion that set aside Appellee’s convictions.

The court issued a per curiam opinion, and did not hear oral argument. The NMCCA issued two opinions in this case, which we discussed here and here.

(plagiarizing from our prior coverage here:) Appellee was involved in a car crash off-base near MCAS Cherry Point and was taken to a civilian hospital. The doctors performed toxicology tests that indicated drug use. The next day, Appellee went to a military medical facility where doctors suspected he was still under the influence of drugs and ordered toxicology reports for medical reasons. Those tests were positive for cocaine and marijuana. Appellee’s CO then ordered a probable cause seizure and search of Appellee’s blood and urine to test for evidence of drug use. CID sent the samples to the Armed Forces Institute of Pathology (AFIP) for testing. AFIP determined that the samples were positive for cocaine and marijuana. An AFIP expert witness with no involvement in the testing showed up to testify at Appellee’s judge-alone special court-martial. The government offered a 169-page report that included the signatures of analysts and a reviewer who weren’t present at trial. Defense Counsel objected on Confrontation Clause grounds. The Military Judge admitted the exhibit into evidence over the Defense objection.

The CCA found that the admission was error, in violation of Appellee’s rights under the Confrontation Clause, and reversed. The Judge Advocate General of the Navy then certified the case to CAAF, with two issues that questioned the purpose of the statements and their affect on the findings. In its resolution of the case, CAAF notes that “[a]t no time during his testimony, however, did [the expert] specifically interpret or rely on the machine-generated data contained in the [drug testing report] to independently conclude that Appellee’s sample tested positive for [marijuana] and [cocaine].” Slip op. at 5. This becomes dispositive, as two pages from the 169 page report “contain summaries of the test results with signatures of an analyst and a reviewer,” and the expert “primarily relied on these pages to establish that AFIP’s testing controls and standards were met for Appellee’s test.” Slip op. at 6.

CAAF explains that “the two summary confirmation pages at issue squarely qualify as testimonial statements under the Supreme Court’s various formulations.” Slip op. at 6-7. This analysis includes the fact that “the pages, which also summarize the results of Appellee’s test, were prepared by analysts at CID’s request and with certain knowledge that the testing was part of a criminal investigation.” Slip op. at 7. They “were generated by an external request from CID for the purpose of criminal investigation” (slip op. at 7) and “were created for the purpose of “establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution” (slip op. at 8). And CAAF cannot say that their admission was harmless, so the CCA’s decision that set-aside the findings and authorized a rehearing is affirmed.

I see CAAF’s focus on the reasons the statements were created as particularly significant. In my discussion of the CCA’s second opinion, I noted that even though the entire report was prepared for the purpose of litigation (meaning it was not a business record excepted from the rule against hearsay), the CCA observed that CAAF has relied on an analysis of the reason for each statement – rather than the reason for the original collection of evidence – when determining if a statement is testimonial. The CCA also noted that “CAAF has held that machine-generated data and printouts are not statements and thus not hearsay because machines cannot be considered declarants” (and if there’s no declarant, there’s no hearsay that needs a business record exception). I lamented this development, as I had some years earlier, because it 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 (I think this terribly mistaken).

CAAF’s resolution of this case indicates that the court is not ready to totally abandon the original purpose test when looking at statements, as the court repeatedly references the criminal investigation that lead to the drug testing report. But in an age when the military is automating everything, the court doesn’t have a reason to directly address my concern about prosequi ex machina.


Case Links:
NMCCA opinion
Blog post: Significant unpublished NMCCA opinion
NMCCA corrected opinion
Blog post: NMCCA revises reasoning in Porter, result unchanged
Blog post: Porter certified to CAAF
CAAF opinion
Blog post: Opinion analysis

3 Responses to “Opinion Analysis: United States v. Porter, No. 12-5003/MC”

  1. stewie says:

    it’s frustrating because garbage in, garbage out still applies to machines.

  2. Ed White says:

    Aren’t pure machine results — without testimony about how the machine works, that it was properly calibrated, that the test material was properly subjected to the mechanical test process, etc. — irrelevant?  Put another way, isn’t it all that testimony that makes the machine test result printout relevant and admissible in the first place?  If the government still needs all that testimony, at least some of which would almost certainly have to come from someone with first-hand knowledge, involved in conducting the actual test, I don’t see how it helps the government very much to have the printouts be non-testimonial/non-hearsay.  The error of admitting the print outs, without all the other testimony, might be amount to a violation of the confrontation clause, but it seems to me still error.

  3. Kim Jong-Un says:

    This issue was originally raised and briefed by the late LT Jentso Hwang, JAGC, USN.  Jentso was a great friend, naval officer, and appellate defense attorney and I was happy to read that his hard work on behalf of Mr. Porter again paid off, this time at CAAF.