Guest Post.

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.

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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.

Audio of the oral argument of United States v. Tearman, No. 12-0313/MC, on Tuesday, October 23, 2012, is posted on CAAF’s website at this link.

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.

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On Friday, CAAF granted review of these 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?

United States v. Tearman, __ M.J. __, No. 12-0313/MC (C.A.A.F. March 23, 2012).  NMCCA’s opinion is published at 70 M.J. 640.

CAAF granted review just 66 days after NMCCA issued its opinion.

NMCCA has published an opinion in United States v. Tearman, __ M.J. ___ (N-M Ct. Crim. App. 17 January 2012.  This is a Blazier-Sweeney case.  NMCCA affirmed the conviction.

The appellant assigns one error:  that military judge abused his discretion by admitting, over the appellant’s objection, testimonial hearsay in violation of his Sixth Amendment right to confrontation.  After careful examination of the record of trial, the parties’ pleadings, and oral argument, we conclude that testimonial hearsay was erroneously admitted, but that the error was harmless beyond a reasonable doubt.

NMCCA had previously reversed on a Blazier-Sweeney basis in United States v. Alicea, No. 201100366 (N-M Ct. Crim. App., January 12, 2012) .