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.

2 Responses to “CAAF has released its opinion in Tearman”

  1. Ex TC says:

    This is an interesting case and the caveat represents a quandary for defense counsel.  DC can argue Crawford/testimonial to keep the documents out, arguing that the govt should have to bring in the cast of characters from the drug lab.  No doubt the govt hates that argument, in part, b/c of the logistics of shutting down a drug lab and having people who never testify undergo cross-exams. 
    Yet, nothing ever has prevented the defense from bringing in those witnesses during their case, other than the ridiculous Byzantine rules on how the defense has to get witnesses.  But what happens if they testify well for the govt’s case and there is no error in the testing.  Then the defense loses the “where is everyone and what did they do” argument that can be very persuasive and powerful.  Tactical decisions can be tough and the old rule of “careful what you ask for”certainly applies in these drug cases.

  2. stewie says:

    I think the defense benefit of these cases is that we are no longer bringing drug cases to trial unless they are fairly significant and worth the cost and excess of doing so.