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.

The CAAF opinion derailed further in footnote 7, where it quoted the NMCCA decision, but missed the Confrontation Clause issue entirely. The signatures and dates “testified” to two key foundational facts, i.e., that the container and its contents were intact and that the contents had not been altered or tampered with after the Accused provided the sample. Clearly, as Melendez-Diaz contemplated, those “statement[s] would be available for use at trial . . . .” Tearman, Slip Opn. 13

CAAF then went off the evidentiary “deep end” when it concluded that the chain-of-custody documents “were made for administrative rather than evidentiary purposes.” [Slip Opn. 16; emphasis added]. That conclusion is simply not true – the chain-of-custody documents were used to satisfy an evidentiary purpose, viz., MRE 901(a)’s authentication requirement. As one authority notes:

“[W]hen real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged.”

E. Cleary, McCormick On Evidence, 667 (3rd ed., West 1984)[footnotes omitted]. While it appears to have been superceded, DA PAM 27-22, Military Criminal Law Evidence, § 8-2 (1987), states:

“The object must be identified and authenticated by testimony which shows that the object has some connection with the case which makes it relevant. It must be shown that the item offered at trial is in substantially the same condition that it was at the relevant point of time. . . . In dealing with fungible items, however, there is always the danger that another item has been substituted or that the item has been tempered with since the time of its seizure. If the item is a substance such as body fluids or drugs, it is usually identified by establishing a chain of custody; each witness in the chain testifies as to his or her custody and handling of the substance.” [emphasis added; internal footnotes omitted].

That’s about as “testimonial” as one can get! If there is any doubt that this remains the law, Melendez-Diaz resolved it: “It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.”

557 U.S. 305, 311 n. 1 (2009); see also, Bullcoming v. New Mexico, 131 S.Ct. 2705, 2712 n. 2 (2011)[same].

Tearman deviates from both history and the post-Crawford Confrontation Clause jurisprudence, when it concluded that the chain-of-custody documentation was not prepared “at the request of . . . [the] prosecution.” Slip Opn. 16-17. Historically, that is not true. As the DoD’s massive urinalysis program was being implemented some 30 years ago, defense counsel who had read then CPT Imwinkelried’s seminal article started objecting to “use” prosecutions arguing that the urine samples were per se fungible and thus, must be properly authenticated. Chain-of-custody documentation quickly sprang forth as a result of cases where the prosecution could not establish (sometimes because no one even knew) a proper chain-of-custody for authentication purposes. The chain-of-custody forms were developed at the request and insistence of SJA’s and Trial Counsel, hence at the “prosecution’s” request so that the end product, i.e., the testing results would be admissible.

The opinion is grossly wrong in its discussion of the “internal chain-of-custody” documents [Slip Opn. 17]. If not for an evidentiary purpose, why is internal documentation even necessary? The correct answer is that it matters not if it is internal or external – authentication requires both sets of chain-of-custody documents or testimony to lay the proper evidentiary foundation for the test results.

If there were any doubts as to the testimonial nature of the chain-of-custody documentation, footnote 9 of the opinion proves it. Why would Sgt O’Neil’s testimony even be necessary if the chain-of-custody process was non-testimonial? See Melendez-Diaz and Bullcoming, supra.

CAAF’s discussion at Slip Opn. 19 is disingenuous at best when rejecting the fact that the chain-of-custody documentation are records prepared “in anticipation of litigation,” versus purely “business records.” Many business records are also created in anticipation of litigation, such as the records at issue in Tearman. Cf., DoDI 1010.01, Military Personnel Drug Abuse Testing Program (MPDATP) (2012), Encl. 2,¶ h(1), which states:

“h. The use of an approved military drug abuse testing result is permitted in the following circumstances for the stated purposes provided.
(1) Urinalysis results may be used as evidence in disciplinary actions under the UCMJ, and in administrative actions (including separation from the Military Service) . . . .”

Sort of sounds like “anticipation of litigation.” DoD Policy is that “Urine specimens, collected as part of the drug abuse testing program, shall be controlled by a stringent chain of custody (CoC) procedure at the collection site and during all analytical procedures conducted at the FTDTLs.” DoDI 1010.16, ¶ 4(d), Technical Procedures for the Military Personnel Drug Abuse Testing Program (MPDATP) (2012)[emphasis added].

The better question is, were the records (chain-of-custody) created for the ultimate use in litigation should litigation ensue? That is clearly the situation here. The chain-of-custody documents are prepared and maintained in case there are positive results which in turn anticipates litigation. If the results are negative, i.e., there are zero drugs detected (not just below the cut-off levels), then there simply is no further DoD “business” use for those records. As the Court said in an analogous situation:

“In short, it is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.”

Palmer v. Hoffman, 318 U.S. 109, 114 (1943).

CAAF made a more subtle, but equally as erroneous gaffe when it concluded that the chain-of-custody documentation “utterly lacked attendant formalities,” [Slip Opn. 20] in the context of Melendez-Diaz and Bullcoming. Perhaps they used a non-standard chain-of-custody document in Tearman, but the official DD Form 2624, “SPECIMEN CUSTODY DOCUMENT – DRUG TESTING,” on the bottom of the front side contains the following language:

“CERTIFICATION. I certify that I am a laboratory certifying official, that the laboratory results indicated on this form were correctly determined by proper laboratory procedures, and that they are correctly annotated.”

That certainly is an “attendant” formality. CAAF apparently forgot about a couple of other “attendant formalities,” viz., Article 107, UCMJ, and 18 U.S.C. § 1001(a), which criminalize misrepresentations. Thus, there are inherent formalities in the chain-of-custody documentation – so formal that criminal penalties for false entries are provided.

Finally, Tearman raises a very basic question as to his guilt. If the CAAF’s opinion is factually accurate, Tearman’s confirmatory analysis reflects a THC level of “37.17 ng/ml.” CAAF concurred with NMCCA’s assessment that “the Government’s case was strong.” [Slip Opn. 26]. The reality was that it was an exceptionally weak case. There were no apparent witnesses, nor did Tearman make any apparent admissions – it was a “naked” urinalysis based upon a low positive result for THC.

To understand my evaluation requires some minimal knowledge of analytical chemistry, the GC/MS confirmatory testing process and some basic human physiology. In theory, at the moment Tearman provided his sample, it “captured” the THC metabolite in it. Then came two evidentiary assumptions – hence the testimonial nature of the chain-of-custody documentation: (1) that the “results” reported were in fact the results of testing Tearman’s sample; and (2) that his sample had not been tampered with or contaminated by shoddy laboratory practices.

For a conviction to flow from a naked urinalysis case requires proof of one additional element, i.e., that the accused knowingly used (here) marijuana. Absent a witness or an admission, the government relied upon an inference that because Tearman’s THC level was above the DoD imposed “cut-off” level, he allegedly “knew” of his own illegal use. Applying that inference here was suspect at best. That inference also has built in fallacies, which the DoD has known about for years, but ignored by defense counsel and the courts.

Lieutenant Colonel Ronald Shippee, Commander of the Fort Meade Drug Testing Laboratory has also stated that, “Based on a “spot urine” specimen result only, no expert can testify with any degree of accuracy: (1) how the subject was exposed to the drug, (2) when the subject was exposed, and (3) the degree of impairment at the time of exposure.”

MAJ W. Hudson & MAJ P. Ham, United States v. Campbell, A Major Change for Urinalysis Prosecutions? Army Lawyer (May 2000) 17, 21 n. 4.

The inference is based upon yet another assumption, i.e., the person “knows” s/he has used based upon the physiological effects the drug has on the human body. For example, if the THC level was 5,000 ng/ml, there would be a palpable physiological effect – the person was “stoned” at the time that the sample was provided. But, to understand Tearman’s 37 ng/ml result requires a little bit more.

First, science’s ability to detect has increased exponentially over the past 30 years. Thus it is possible for GC/MS testing to detect levels of substances far below that which triggers any physiological reaction. Second, science cannot tell when (or how) Tearman got THC in his system. Considering his low level of THC, he may not have even been aware of how he was exposed to it. A nanogram [“ng”] is one-billionth of a gram. Thirty-seven billionths of a gram in 1 milliliter of Tearman’s (alleged) urine – nothing more. That is not a “strong” case under any definition.

8 Responses to “Opinion Analysis: Tears For Tearman – Some Thoughts”

  1. Phil Cave says:

    So, Don, The Supremes?

  2. Cloudesley Shovell says:

    I trust the appellate codes are pushing this post out to the field.  Mr. Rehkopf has helpfully provided defense counsel with a pretty complete road map for litigating a drug pop case, complete with appellate issues to preserve.  Equally helpful for trial counsel in preparing a thorough case.

  3. Kim Jong-un says:

    Very interesting post. It would be very helpful if the author could cite any federal or state cases that have held that chain of custody documents such as this (or similar documents) are testimonial. Or any law review articles or serious pieces of jurisprudence coming to this conclusion. This would aid those drafting a potential cert petition and inform trial practitioners/appellate counsel.

  4. Zachary Spilman says:

    I came to the opposite conclusion three years ago in Deconstructing Blazier:

    First, Crawford, and Melendez-Diaz, do not change the fundamental character of business records as non-testimonial. This is obvious in the text: “Most of the hearsay exceptions covered statements that by their nature were not testimonial – for example, business records or statements in furtherance of a conspiracy.” Crawford, 541 U.S. at 55. Laboratory records of military urinalysis have long been recognized as business records. Therefore, it is necessary to reclassify these records as something other than business records in order to require the Government produce a host of live witnesses to testify about the analytical process. This is a pretty big job.

    The “Business Records Exception” to the hearsay rule was dissected in Palmer v. Hoffman, 318 U.S. 109, 112; 63 S.Ct. 477, 480 (1943).

    The routine of modern affairs, mercantile, financial and industrial, is conducted with so extreme a division of labor that the transactions cannot be proved at first hand without the concurrence of persons, each of whom can contribute no more than a slight part, and that part not dependent on his memory of the event. Records, and records alone, are their adequate repository, and are in practice accepted as accurate upon the faith of the routine itself, and of the self-consistency of their contents. Unless they can be used in court without the task of calling those who at all stages had a part in the transactions recorded, nobody need ever pay a debt, if only his creditor does a large enough business.

    The very same may be said for urinalysis; nobody need ever worry about prosecution for substance abuse if only the service tests a large enough population.

    But in Palmer the records (an engineer’s statement related to a locomotive mishap) were not admissible because the statement was made in anticipation of litigation, and was not “a record made for the systematic conduct of the business as a business.” Palmer at 113. This is a somewhat subtle distinction because the railroad made a practice of recording its employees’ version of events after a mishap. Parsing this issue, the Supreme Court realized that “regular course of business must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of the business as a business.” Palmer at 115. The same is true of the drug screening laboratories; their business is urinalysis, and their contemporaneous recordkeeping is a necessary part of that profession.

    Crawford may have muddied these waters somewhat, but it did not change the common-law rule that a business record is not testimonial (i.e., not the functional equivalent of testimony) because it is a business record, not that a business record is a business record because it is not testimonial.

    Emphasis added. I think the language in bold is the key difference between my conclusion in 2010 and Don’s conclusion above, and I think Don makes a really going point when he writes:

    As the DoD’s massive urinalysis program was being implemented some 30 years ago, defense counsel who had read then CPT Imwinkelried’s seminal article started objecting to “use” prosecutions arguing that the urine samples were per se fungible and thus, must be properly authenticated. Chain-of-custody documentation quickly sprang forth as a result of cases where the prosecution could not establish (sometimes because no one even knew) a proper chain-of-custody for authentication purposes. The chain-of-custody forms were developed at the request and insistence of SJA’s and Trial Counsel, hence at the “prosecution’s” request so that the end product, i.e., the testing results would be admissible.

    I bet the defense counsel in Tearman had no idea of this history, and I bet there’s nothing in the record explaining why the drug screening laboratory keeps a chain-of-custody (or considering the processes used by, say, private laboratories that don’t provide results to prosecutors). Seems like a good topic for some factfinding by a trial judge. Maybe CAAF will get a second bite at this apple.

  5. Brian le chien says:

    Much thanks for the inciteful post. 
    At its heart, the reason the military does randomized drug tests, is not to prosecute those who test positive.  I say this for two reasons: first, we prosecute few who do test positive.  Second, if the goal was prosecution, the military could not collect the samples in the first  place – they would transform from inspections into searches. 
    The primary purpose is good order and discipline, efficiency, fitness etc.  And even for these non prosecutorial reasons, the military still would like to have the paperwork to identify, (accurately), positive samples.

  6. Dwight Sullivan says:

    CAAF has held that both the results block and the certification on the specimen custody document (DD FOrm 2624) is testimonial, a result that NMCCA followed in Tearman.  The issue in Tearman was limited to non-certified chain of custody entries and quality control signatures.  (Look, for example, at pages 14-15 of the slip opinion, noting that the “challenged internal chain-of-custody documents and internal review worksheets are substantially different from the DD Form 2624 certification in Sweeney and the cover memorandum in Sweeney and Blazier I.” (footnote omitted).  Footnote 7 of CAAF’s opinion quotes this description of the chain-of-custody documents from NMCCA’s opinion: “These eight pages, containing a total of thirty-seven chain of custody entries, all list a stamped or handwritten name, a signature or initials, a date, and a stamped entry indicating the purpose for the change in custody within the NDSL.”  So this case wasn’t about entries on the DD Form 2624.
    Looking at the Williams v. Illinois divide, I don’t think there’s any serious chance that the Supremes would treat those entries as testimonial hearsay. 
    Tearman provides a bright-line rules governing the admissibiity of drug testing reports.  The end result makes it fairly easy for the prosecution to admit drug testing results through the testimony of an expert witness who wasn’t involved in the testing, while noting the defense’s compulsory process right, which in some cases may allow the defense to compel the testimony of some of those involved in the testing process.  While trial defense counsel may wish to preserve challenges to the legal regime laid out by Tearman, I don’t see any reasonable prospect that those challenges will gain traction at either CAAF or the Supremes.  A trial defense counsel litigating a naked urinalysis case may still persuade the members to acquit by emphasizing the expert wtiness’s unfamiliarity with the actual testing of the accused’s sample, coupled with highlights of previous errors at the military’s drug testing labs.  But attempts to use the Confrontation Clause to exclude either chain-of-custody/QA entries or the expert’s reliance on the drug testing report to support the expert’s opinion concerning the results doesn’t appear to be a viable defense strategy.

  7. Don Rehkopf says:

    KJ-un – was out of town all day, do have more cites & authority.  Will post tomorrow.  But, if you have access to it, Prof. Giannelli’s, Chain of Custody and the Handling of Real Evidence, 20 Am. Crim. L. Rev. 527 (1983) is a good place to start.

  8. Phil Cave says:

    Young v. United States,