The Confrontation Clause in Courts-Martial (Crawford and Its Progeny)
Key takeaways
- The Confrontation Clause applies in prosecutions of members of the armed forces. United States v. Jacoby, 29 C.M.R. 244 (C.M.A. 1960).
- Testimonial hearsay is inadmissible unless the declarant testifies, or is unavailable and was previously subject to cross-examination. Crawford v. Washington, 541 U.S. 36 (2004).
- Whether a statement is testimonial turns on its primary purpose: meeting an ongoing emergency is nontestimonial; building a case for prosecution is testimonial. Davis v. Washington, 547 U.S. 813 (2006); Michigan v. Bryant, 562 U.S. 344 (2011).
- Forensic lab certifications are testimonial, and a surrogate expert cannot repeat them for the government. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S. 647 (2011); United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010).
- An accused who procures a witness’s absence with the intent to keep the witness from testifying forfeits the right to confront that witness. Giles v. California, 128 S. Ct. 2678 (2008); M.R.E. 804(b)(6).
The right and where it comes from
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” U.S. Const. amend. VI. That guarantee is not a civilian luxury: military courts held decades ago that the Confrontation Clause protects members of the armed forces at courts-martial. United States v. Jacoby, 29 C.M.R. 244 (C.M.A. 1960).
Confrontation and hearsay are related but separate doctrines, and each requires its own analysis. A statement can clear a hearsay exception and still violate the Sixth Amendment — and a hearsay error does not automatically create a constitutional one. United States v. Russell, 66 M.J. 597 (Army Ct. Crim. App. 2008).
The right has two faces. One protects cross-examination at trial — judges may impose reasonable limits, but cutting off inquiry into bias, motive to lie, or the reliability of a urinalysis can be reversible error. Delaware v. Van Arsdall, 475 U.S. 673 (1986); United States v. Israel, 60 M.J. 485 (C.A.A.F. 2005). The other — the focus of this guide — controls when the government may use out-of-court statements from a witness who never appears.
The Crawford framework: testimonial statements
For a quarter century, Ohio v. Roberts, 448 U.S. 56 (1980), let judges admit hearsay from absent witnesses whenever it seemed reliable. Crawford v. Washington, 541 U.S. 36 (2004), demolished that regime. The Confrontation Clause, the Court held, is a procedural guarantee:
“not that evidence be reliable, but that reliability be assessed in a particular manner; by testing in the crucible of cross-examination.”Crawford v. Washington, 541 U.S. 36, 61 (2004)
The rule that emerged: a testimonial statement is admissible only if the declarant is unavailable and the defense had a prior opportunity for cross-examination. Crawford declined to give a comprehensive definition of “testimonial,” but described three formulations — ex parte in-court testimony or its functional equivalent; formalized materials such as affidavits, depositions, prior testimony, or confessions; and statements made under circumstances that would lead an objective witness reasonably to believe they would be available for use at a later trial. At a minimum, the term covers prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and police interrogations.
Two safety valves matter enormously in practice. First, when the declarant appears for cross-examination at trial, the Clause “places no constraints at all” on the use of prior testimonial statements. Crawford, 541 U.S. at 59. Second, the Clause does not bar testimonial statements offered for a purpose other than their truth — a distinction the government routinely stretches, as discussed below.
The military test. For statements in Crawford‘s “objective witness” category, the CAAF asks three questions: was the statement elicited by or made in response to a law enforcement or prosecutorial inquiry; did it involve more than routine, objective cataloging of unambiguous facts; and was the primary purpose of making or eliciting it the production of evidence with an eye toward trial? United States v. Rankin, 64 M.J. 348 (C.A.A.F. 2007). Applying those factors, a bank fraud affidavit completed with no government involvement was nontestimonial, United States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007), while a child’s statements to a sexual assault nurse examiner — arranged and paid for by the sheriff’s department, recorded on a “forensic” form — were testimonial. United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007). Statements to a treating doctor whose primary purpose was medical care remain nontestimonial. United States v. Squire, 72 M.J. 285 (C.A.A.F. 2013).
The primary-purpose test (Davis, Bryant, Clark)
The Supreme Court refined the line in a pair of domestic violence cases. Statements to a 911 operator during an ongoing assault were nontestimonial; statements to police at the scene after the incident ended were testimonial. Davis v. Washington, 547 U.S. 813 (2006) (with its companion, Hammon v. Indiana). The test is objective: statements are nontestimonial when the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency, and testimonial when there is no such emergency and the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.
Michigan v. Bryant, 562 U.S. 344 (2011), stretched the emergency doctrine: a dying shooting victim’s parking-lot identification of his shooter was nontestimonial because the armed shooter was still at large, making the emergency one facing the public, not just the victim. And Ohio v. Clark, 576 U.S. ___ (2015), held that a three-year-old’s statements to his preschool teachers — mandatory reporters under state law — were nontestimonial, stressing the informality of the conversation, the listeners’ non-police role, and the child’s age.
For the defense, the primary-purpose fight is won or lost on the record: who asked the questions, at whose request, on what form, and for what stated reason. The same words can be testimonial when a CID agent elicits them and nontestimonial when a worried parent does. Compare Gardinier with United States v. Coulter, 62 M.J. 520 (N-M. Ct. Crim. App. 2005) (two-year-old’s statement to parents nontestimonial).
Lab reports and surrogate experts
No area matters more in military practice, because urinalysis prosecutions are built on paper. The Supreme Court held that sworn certificates of forensic analysis are testimonial — the analysts are witnesses, and the accused has the right to confront them. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). It then held that a surrogate analyst who neither performed nor observed the test cannot stand in for the certifying analyst. Bullcoming v. New Mexico, 564 U.S. 647 (2011). A fractured Court later allowed an expert to describe an outside DNA profile as the basis of her own opinion in a judge-alone trial, but the plurality reasoning of Williams v. Illinois, 567 U.S. 50 (2012), gives the government little comfort before members.
The CAAF got there early. In the Blazier litigation, the court held that drug testing report cover memoranda summarizing the “accusation” of a positive result are testimonial, United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010) (Blazier I), and that cross-examining the lab’s expert did not satisfy the right to confront the personnel who made those certifications. United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010) (Blazier II). An expert may “rely on, repeat, or interpret admissible and non-hearsay machine-generated printouts of machine-generated data,” and may “rely on, but not repeat, testimonial hearsay that is otherwise an appropriate basis for an expert opinion, so long as the expert opinion arrived at is the expert’s own” — but the Confrontation Clause “may not be circumvented by an expert’s repetition of otherwise inadmissible testimonial hearsay of another.” Blazier II.
The follow-on cases policed that line hard: convictions were disturbed where surrogate experts testified verbatim from non-machine-generated portions of reports, United States v. Dollar, 69 M.J. 411 (C.A.A.F. 2011), and where a judge failed to give a limiting instruction on testimonial material an expert relied on. United States v. Lusk, 70 M.J. 278 (C.A.A.F. 2011). United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), declared the old random-urinalysis rationale of United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), a dead letter: the testimonial question turns on the purpose for which the statements in the report were made, not how the sample was collected.
| Drug-lab document | Testimonial? | Authority |
|---|---|---|
| Cover memorandum summarizing the positive result | Yes — inadmissible without the declarant | Blazier I & II |
| Certification and results blocks on the specimen custody document (DD Form 2624) | Yes | Sweeney; United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013) |
| Chain-of-custody documents and internal review worksheets | No — admissible as business records | Tearman |
| Machine-generated data and printouts | Not hearsay at all — an expert may repeat and interpret them | Blazier II |
| Lab report produced at law enforcement request after arrest | Yes | United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) |
Every document in that table starts as hearsay under the Military Rules of Evidence; the constitutional layer decides whether a business-records theory can save it. When the sample itself was obtained by a questionable seizure, the confrontation objection runs alongside a motion to suppress under the Fourth Amendment rules.
What this means if you’re facing a paper case
If the government’s proof is a lab package, an affidavit, or a recorded interview of an accuser who may never testify, the admissibility fight is the trial. Which blocks of the report are testimonial, which witness actually certified what, and whether the expert on the stand did the work are questions that decide urinalysis and forensic cases before openings. Do not let trial counsel pre-admit a drug testing report by agreement, and get a defense lawyer who knows this case law reviewing the exhibit list now — confrontation objections not made precisely are made never.
Unavailability and prior cross-examination
Even a testimonial statement comes in if the witness is unavailable and the defense had a prior opportunity to cross-examine. Both halves are litigated:
- Unavailability is strict. The government must first make a good-faith effort to produce the witness. United States v. Cabrera-Frattini, 65 M.J. 241 (C.A.A.F. 2007). A witness who takes the stand and answers questions is available — even a forgetful one. An opportunity to cross-examine a witness who cannot recall satisfies the Clause; there is no right to meaningful cross-examination. Delaware v. Fensterer, 474 U.S. 15 (1985); United States v. Owens, 484 U.S. 554 (1988); United States v. Rhodes, 61 M.J. 445 (C.A.A.F. 2005).
- Prior opportunity means a real one. Preserved testimony from an Article 32 preliminary hearing or a deposition can qualify — if the defense actually had the chance to cross-examine the witness there. That is one reason Article 32 cross-examination strategy matters: questions asked (or strategically withheld) at the hearing can determine what the government may read to the panel if the witness later disappears.
- Waiver is a trap. A defense that declines to cross-examine a reluctant witness the government produces can waive the objection to the witness’s out-of-court statements. United States v. Bridges, 55 M.J. 60 (C.A.A.F. 2001); United States v. Martindale, 40 M.J. 348 (C.M.A. 1994).
Nontestimonial statements stand on different footing: military courts have continued to test them for reliability under the old Roberts framework even as federal law treats the Confrontation Clause as inapplicable to them, Whorton v. Bockting, 549 U.S. 406 (2007) — so the evidentiary hearsay fight remains the main event for those statements.
Remote, screened, and two-way video testimony
Face-to-face confrontation is the constitutional preference, not an absolute. Under Maryland v. Craig, 497 U.S. 836 (1990), a child victim may testify by closed-circuit television only on a case-specific showing that the procedure is necessary to protect the child, that the accused’s presence — not the courtroom generally — would traumatize the witness, and that the distress would be more than de minimis, with reliability preserved through oath, cross-examination, and observation of the witness’s demeanor. The CAAF continues to apply Craig after Crawford. United States v. Pack, 65 M.J. 381 (C.A.A.F. 2008); United States v. McCollum, 58 M.J. 323 (C.A.A.F. 2003).
The limits cut in the defense’s favor when convenience — not necessity — drives the request. Remote testimony because overseas witnesses declined to travel violated the Sixth Amendment, United States v. Yates, 2006 U.S. App. LEXIS 3433 (11th Cir. 2006), and a video feed from an uncontrolled remote location was reversible in United States v. Shabazz, 52 M.J. 585 (N-M. Ct. Crim. App. 1999). The accused should not be the one displaced: removing the accused to watch his daughter’s testimony over closed circuit violated confrontation rights. United States v. Daulton, 45 M.J. 212 (C.A.A.F. 1996). Note the boundary: the Clause does not apply to non-capital presentencing proceedings, though due process still demands minimum reliability. United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001).
Forfeiture by wrongdoing
An accused can lose the right. Forfeiture by wrongdoing “extinguishes confrontation claims on essentially equitable grounds,” Crawford, 541 U.S. at 62 — but only where the government shows the accused engaged in wrongdoing that was intended to, and did, procure the witness’s unavailability. Causing the absence is not enough; intent to silence is required. Giles v. California, 128 S. Ct. 2678 (2008). The doctrine is codified in M.R.E. 804(b)(6), and trial judges decide it by a preponderance of the evidence. United States v. Marchesano, 67 M.J. 535 (Army Ct. Crim. App. 2008); United States v. Clark, 35 M.J. 98 (C.M.A. 1992).
Forfeiture allegations surface in domestic violence and sexual assault cases whenever an accuser stops cooperating — the government may argue that calls, texts, or intermediaries amount to procurement. Anything an accused says to or about a reluctant witness can become the government’s forfeiture evidence, which is one more reason the no-contact rules and the right to remain silent deserve absolute respect while charges are pending.
Practitioner’s note
In our practice, the confrontation issues that win are built months before trial. We pin the government down early on which lab personnel and which accusers will actually testify, demand production rather than accepting certificates, and litigate the testimonial character of every document in the exhibit list block by block — because Tearman and Sweeney split single forms into admissible and inadmissible pieces. At the Article 32 hearing we make deliberate choices about cross-examination with an eye on M.R.E. 804: sometimes the questions we do not ask are the ones that keep a transcript out of evidence if the witness later refuses to appear.
Frequently asked questions
Does the Confrontation Clause apply at a court-martial?
Yes. Military courts held in United States v. Jacoby that the Sixth Amendment Confrontation Clause protects members of the armed forces in courts-martial. It applies to findings on guilt; it does not apply to non-capital presentencing proceedings, where due process instead requires minimum standards of reliability.
What makes a statement testimonial under Crawford?
Courts ask whether the primary purpose of the statement was to create evidence for prosecution. Formal statements to law enforcement, affidavits, prior hearing testimony, and forensic certifications are testimonial. Statements made to meet an ongoing emergency — like a 911 call during an assault — and casual remarks to family, friends, or treating doctors generally are not.
Can the government use a drug lab report without calling the analyst?
Not the testimonial parts. Cover memoranda and the certification blocks on the specimen custody document are testimonial, so the government must produce the declarant or show unavailability plus a prior chance to cross-examine. Machine-generated data and routine chain-of-custody records can come in, and an expert may rely on — but not repeat — testimonial material.
What if the witness testifies but says they cannot remember?
A witness who takes the stand and answers questions is available for confrontation purposes even with a failed memory. The Supreme Court has held the Clause guarantees an opportunity for cross-examination, not meaningful cross-examination, so prior statements of a forgetful witness may still be admitted if a hearsay path exists.
Can a witness testify against me by video instead of in person?
Only on a case-specific showing of necessity. Under Maryland v. Craig, remote or screened testimony requires findings that the accused's presence would cause more than minimal trauma to the witness, usually a child victim. Convenience, travel costs, or a witness's unwillingness to appear are not enough, and courts have reversed convictions built on such shortcuts.
What is forfeiture by wrongdoing?
If an accused engages in wrongdoing intended to make a witness unavailable — and it works — he forfeits the right to confront that witness, and the witness's statements can be used at trial. Under Giles v. California the government must prove intent to silence the witness, not just conduct that happened to cause the absence.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington, the author of this guide, has spent more than 25 years cross-examining the government’s witnesses in courts-martial worldwide — and litigating what happens when the government tries to convict without producing them. A former Army prosecutor and defense counsel and a published author and instructor on cross-examination, he has fought lab-report and surrogate-expert battles in urinalysis cases, remote-testimony motions in child cases, and Crawford objections in sexual assault trials from Article 32 hearings through contested panels.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has defended service members for more than 20 years in the cases where confrontation issues bite hardest — sexual assault, domestic violence, and violent-offense prosecutions in which accusers recant, disappear, or testify from behind screens. Bilingual in English and Spanish and experienced worldwide, she reviewed this guide with a focus on the pretrial record: preserving objections, shaping Article 32 cross-examination, and forcing the government to produce the humans behind its paper.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.