CAAF decided United States v. Tearman, 72 M.J. 54, on 19 March 2013. Rather than add clarity to our Confrontation Clause jurisprudence in urinalysis cases, it injects systemic confusion. Fortunately, Lance Corporal [LCpl] Tearman did not get a sentence that included confinement. My comments here focus on Tearman’s analysis of the “chain-of-custody” / Confrontation Clause issue only, with a brief comment on the sufficiency of the proof.
Forty years ago when the learned evidence professor, Edward J. Imwinkelried was an Army JAG Captain teaching at the Army JAG School, he authored an article titled, The Identification of Original, Real Evidence, 61 Mil.L.Rev. 145 (1973). Three years later, as a young Captain at the Air Force JAG School, our trial practice instructor commended Captain Imwinkelried’s article to our attention. I now commend it to you. CPT Imwinkelried stated what litigators need to know and remember:
“The common law has always had a healthy tradition of skepticism. The common law refuses to accept proffered evidence at face value; it challenges the proponent to prove that the item is what it purports to be or he claims that it is. The common law will not ascribe any logical relevance to an item of evidence until its proponent authenticates the item. “Authentication” is simply the generic term for the process of proving that an item of evidence is what its proponent claims that it is. The authentication of real, physical evidence is usually styled the identification of the evidence.”
Id. at 145-46 (internal footnotes omitted).
Unfortunately for LCpl Tearman, the concept of “authentication” escaped CAAF’s notice.
In the military setting authentication of evidence is governed by MRE 901(a). The underlying evidentiary issue in Tearman was the authentication of the evidence leading to the results of the urinalysis – it was not the chain-of-custody issue CAAF focused on. Chain-of-custody is a procedural device for authenticating fungible evidence. “Fungible evidence, such as urine specimens . . . .” United States v. Webb, 66 M.J. 89, 93 (CAAF 2008). “Generally fungible evidence becomes admissible and material through a showing of continuous custody which preserves the evidence in an unaltered state.” United States v. Nault, 4 M.J. 318, 319 (CMA 1978). So, chain-of-custody evidence is necessary to authenticate fungible evidence, i.e., evidence that Prof. Imwinkelried terms “malleable,” which in turn is necessary to lay the foundation for the testimony about the urinalysis results.
Fungible evidence is simply evidence that is not inherently unique, e.g., the urine sample here, as opposed to a sequential serial number on a firearm. Thus, to overcome the legal “skepticism” noted by Prof. Imwinkelried, the proponent of the evidence must authenticate it for two reasons to make it logically and legally relevant. First, authentication is required to establish that the evidence is what the proponent claims it to be, here the Accused’s urine sample with THC in it. But there is a second part, viz., that the fungible evidence has not been altered, changed or tampered with. That two-part authentication analysis for fungible evidence via the chain-of-custody process establishes relevancy and thus, the key to the admissibility of the testing results. Or as in Tearman’s case, “a urinalysis may be offered to show wrongful use at the particular time charged in the specification. Thus, the actual state of the urine sample introduced is at issue in that situation.” United States v. Grant, 56 M.J. 410, 416 (CAAF 2002).
OK, so what does any of this have to do with CAAF’s opinion in Tearman? Nothing and everything. Huh, you ask? “Nothing” because CAAF does not address the authentication issue and “everything” because they use the chain-of-custody process to eliminate the Confrontation Clause issue.
CAAF got off to a bad start early on in footnote 2. An “aliquot” in the context of chemistry is that portion of the total sample actually being tested, not the sample itself. Second, in its discussion of the chain-of-custody documents in that footnote, CAAF simply blew it. The chain-of-custody documents were clearly testimonial for Confrontation Clause purposes. The “handwritten signatures or initials and date stamps” testified to two things contrary to CAAF’s conclusions: first, that it was Tearman’s urine sample; and second, that the sample had not been tampered with or altered in any way prior to all of the testing being completed. See, e.g., Nault.