Argument Preview: Questioning the admissibility of a laboratory test result, in United States v. Baas
CAAF will hear oral argument in the Marine Corps case of United States v. Baas, No. 19-0377/MC (CAAFlog case page), on Tuesday, March 17, 2020, at 9:30 a.m. The court granted review of two issues involving the admission of a laboratory test result:
I. Did admission of an allegedly positive Diatherix Laboratories test for gonorrhea without testimony at trial of any witness from Diatherix violate the Sixth Amendment confrontation clause?
II. Did the lower court abuse its discretion in admitting an alleged positive Diatherix test result for gonorrhea in a child’s rectal swab-where Diatherix failed to follow its own procedures and the result was of near zero probative value?
Corporal (E-4) Baas was convicted of numerous offenses including rape of a child (his son, who was one year old at the time). The evidence supporting the rape conviction included a positive gonorrhea test of the child. Baas told military law enforcement that he had gonorrhea (a sexually-transmitted disease) and he encouraged them to test the child for it in the belief that the test would exonerate him. Swabs were taken from the child by a pediatrician and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. However, the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that more reliable tests should be performed to confirm the diagnosis.
Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.
The Navy Marine Corps CCA affirmed, concluding that the Diatherix lab report was nontestimonial (and so could be admitted without calling a witness from the laboratory) because the report was merely a business record of a test conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.
Baas argues that the the report is testimonial because the laboratory had reason to believe that the results of a gonorrhea test on an infant “would be available for use at the trial of the person suspected of giving [the child] gonorrhea.” App. Br. at 30. Similarly, he argues that the doctor who ordered the test knew of the sexual assault allegation and was (at least in part) looking for evidence of that abuse. As for the substance of the laboratory result, Baas applies the criteria from Mil. R. Evid. 702, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and United States v. Houser, 36 M.J. 392 (C.M.A. 1993), to argue that the result was inadmissible because the testing methodology is inaccurate, has a high error rate, is not peer reviewed, is not (by the laboratory’s own manual) recommended for use in identifying cases of sexual assault, and is not generally accepted for use on children. Baas also argues that the result had low probative value because of testimony that there was at least a 50% chance that it was a false positive.
The Government Division asserts that the report is not testimonial because it was created by a private lab for medical diagnosis at the request of a medical provider (as opposed to by a government crime lab as part of a criminal investigation and at the request of law enforcement). However, the Government Division also argues that even if the testing was conducted for the purpose of confirming that Baas raped the child, the result is still not testimonial:
Determining the identity of an abuser in situations involving child victims—especially where the putative offender is a family member—is widely recognized as a legitimate medical pursuit. . . .
. . . As such, Appellant’s emphasis of Dr. Kafer’s observation that a positive result would be “highly indicative of child abuse” is misplaced. (Appellant’s Corrected Br. at 34, Jan. 28, 2020.) Even if this statement reflected a collateral justification for the screening test ordered by Dr. Kafer—a motive contradicted by the Record, (JA 972)—this would nonetheless qualify as a non-testimonial, medical pursuit.
Gov’t Div. Br. at 24-25.
On the second issue the Government Division distinguishes documentary evidence (like the lab result in this case) from expert testimony, and it argues that the rules and cases addressing expert testimony do not apply to documentary evidence:
Appellant cites no case to support the notion that Daubert, Houser, or Mil. R. Evid. 702 governs the admission of a non-testimonial record of a regularly conducted activity. Neither is the United States aware of any such precedent.
Gov’t Div. Br. at 47. The Government Division also characterizes Baas’ argument about the substance of the report as “moot” because the military judge admitted the report as a business record. Gov’t Div. Br. at 48.
Finally, the Government Division argues that any error is harmless because other evidence proves guilt:
Here, the Diatherix Report represented a single page of evidence among hundreds of pages of exhibits and hours of recorded interrogations. Compare (JA 550), with (JA 544–71, 580–897.) Moreover, Trial Counsel told the Members multiple times that G.B.’s gonorrhea result was not necessary to convict Appellant, stating: (1) the test was only “one piece of the puzzle” showing Appellant’s guilt; (2) the Members did not need the Diatherix Report to convict Appellant; and (3) the Diatherix Report corroborated the “overwhelming digital forensic evidence” in the case. (JA 518, 534.)
Gov’t Div. Br. at 38.