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What Statements are “Testimonial”?

What statements are “Testimonial”? in Military Courts?

U.S. Supreme Court Cases.

Crawford v. Washington, 541 U.S. 36 (2004).

Articulated three categories of testimonial statements that defined the Confrontation Clause’s “coverage at various levels of abstraction.” The Court held that statements that fell within one or more of these three categories were testimonial. These categories, or “formulations,” were

Ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially…”

Extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions…”

“Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”
At a minimum, the term “testimonial” applies to “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” But seeDavis v. Washington, 547 U.S. 813 (2006) (statement given in response to police interrogation is nontestimonial where primary purpose of police is meeting an ongoing emergency).

Davis v. Washington, 547 U.S. 813 (2006) (companion case with Hammon v. Indiana, 547 U.S. 813 (2006)).

Davis and Hammon are cases that dealt with statements made to government officials after domestic violence situations. The Court held that statements made to the police at the scene of a domestic dispute, but after the actual incident, were testimonial and could not be admitted where the victim did not testify at trial, but that statements made in response to questions from a 911 operator immediately after the domestic assault occurred(and assailant had just left the premises) were nontestimonial, and thus could be admitted at trial even though the victim did not testify.
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing  emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143 (2011) (The Emergency Exception Doctrine)

Procedural History: A jury convicted the defendant of second degree murder, possession of a firearm by a felon, and possession of a firearm during commission of a felony. The Michigan Court of Appeals affirmed, the Michigan Supreme Court returned the case for reconsideration. The appellate court then affirmed again. The Michigan Supreme Court reversed and SCOTUS (SCOTUS blog) granted certiorari.
Facts: Police were dispatched to a local gas station following a shooting. The victim lay in the parking lot with mortal gunshot wounds. Police spoke with him and he told them that the suspect, Bryant, had shot him when he was outside of Bryant’s house and then he drove himself to the gas station. Once medical services arrived, the police called for backup and went in search of Bryant, though they did not find him that day. The victim died at the hospital.

At trial, the victim’s statements were admitted through the police officer. The trial occurred pre-Crawford. The case was reversed on appeal, post-Crawford, when the statements were found testimonial.

Issues: Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual??

(5) Holding: Yes. The objective circumstances of the victim’s statement indicate the “primary purpose” of the interrogation was to assist in an ongoing emergency.

Discussion: This case expands the usual emergency exception doctrine because it looks to the totality of the circumstances, not just the emergency itself. The victim’s statements do not focus on the threat to the immediate environment, usually a domestic situation or an individual, but rather the public at large and for a longer period of time. Further, the victim went into greater detail about the circumstances of what happened. Despite this, court relied on an objective analysis of the encounter between the two individuals. First, it occurred at a crime scene rather than a formal, station house setting. Second, the existence of an emergency of Bryant’s at large status was a threat to the public even if the threat to the current victim had passed. Finally, while the analysis is objective, the court does look at the victim’s condition to determine the purpose in providing information to police.

Dissent: Justice Scalia, as the author and torch-bearer of Crawford, provides interesting and entertaining reading in his dissent, which begins “[t]oday’s tale . . .” continues assuming a fantasy in the majority’s decision. Whether it takes a hardline on Crawford or just a hard jab the majority’s lack of understanding about the distinction between investigating and responding to an emergency, it’s certainly an effort to keep the court closer to the Crawford line of cases as he sees the majority decision as looking at reliability factors, something we abandoned when we left the Ohio v. Roberts sinking ship in 2004.

Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).

Facts. Accused was convicted on drug charges. Police sent cocaine connected to the accused to state forensic lab for analysis. The lab analysts issued three sworn “certificates of analysis” attesting to the results of their analysis. In accordance with state law, the certificates were introduced at trial as “prima facie evidence of the composition, quality, and the net weight of the narcotic…analyzed.” The analysts who wrote the statements did not testify at trial. Melendez-Diaz objected to the admission of the statements as a violation of his right of confrontation, citing Crawford.
Procedural History. The Appeals Court of Massachusetts affirmed the conviction, rejecting Melendez-Diaz’s Sixth Amendment claim under Crawford. In doing so the court relied on the Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Verde. The Verde court concluded that a drug analysis certificate is “akin to a business or official record” and was thus not testimonial under Crawford. After the Massachusetts Supreme Judicial Court denied review without comment, Melendez-Diaz appealed to the U.S. Supreme Court, arguing that the Verde holding was in conflict with the Crawford decision. The Supreme Court granted certiorari and the case was argued in November 2008.

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Issue. Whether affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to a defendant was cocaine were “testimonial,”rendering the affiants “witnesses” subject to the defendant’s right of confrontation under the Sixth Amendment.

Holding. Justice Scalia, writing for the majority and joined by Justices Stevens, Souter, Thomas, and Ginsberg, held: The affidavits were “testimonial” statements, and the affiants were “witnesses” for purposes of the Sixth Amendment; admission of the affidavits violated the defendant’s right to confrontation.


The Court found that the affidavits fell within the “core class of testimonial statements” under Crawford. Noting that its description of the core class mentioned affidavits twice, the Court found that a “certificate of analysis” was an “affidavit,” because it was a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” (Citing Crawford, 541 U.S. at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828))).

In addition to being “affidavits”, the Court found that the of analysis were also “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (Citing Crawford, 541 U.S. at 52). As evidence, the Court pointed out that, according to Massachusetts law, the “sole purpose” of the certificates was to provide “prima facie evidence” about the tested substance. The Court surmised that the analysts who prepared the certificates must have been aware of this purpose, as it was reprinted on the certificates.

Chain of custody evidence. The Court, in a footnote, made clear that it did not hold “that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device must appear in person.”

The Court reasoned that “gaps in the chain of custody go to weight, not admissibility” but also held that any chain of custody evidence presented must be presented live.

Briscoe v. Virginia, 130 S.Ct. 1316 (2010). In accordance with Virginia law, the prosecution introduced a certificate of a forensic laboratory analysis without presenting the testimony of the analyst who prepared the certificate. Under the law, the accused has a right to call the analyst as his own witness. In a per curiam opinion, the Court vacated the judgment of the Virginia Supreme Court and remanded the case (along with a companion case, Cypress) for further proceedings not inconsistent with the U.S. Supreme Court’s opinion in Melendez-Diaz v. Massachusetts, 557 U.S. —-, 129 S.Ct. 2527 (2009).

Bullcoming v. New Mexico, 562 U.S. ___, 131 S.Ct. 2705 (2011)

Procedural History: Defendant was convicted of Driving while Under the Influence of Intoxicating Liquor (DWI). The New Mexico Court of Appeals and New Mexico Supreme Court affirmed. SCOTUS granted certiorari.
Facts: Following his arrest for DWI, police collected a blood sample from the defendant. An analyst named Caylor tested the sample at New Mexico’s state lab. At trial, the government did not call Caylor because he was on unpaid leave. Defense objected (they did not have prior notice of this change). Government offered a surrogate witness, Razatos, who had neither certified, performed nor observed the testing on the defendant’s sample. The court overruled the objection and admitted the entire report as a business record. The report contained statements about proper procedures being followed, results of the testing, the state of the sample upon receipt, the validity of the process, etc.

Melendiz-Diaz v. Massachusetts came down during this appeal, holding that forensic reports affidavits were testimonial. The New Mexico Supreme Court recognized this decision and found the certificate testimonial but that it did not violate the Confrontation Clause because Caylor, the testing analyst was merely a “scrivener” who wrote down machine generated results and Razatos, the surrogate witness, was more than qualified as an expert to testify about how the machines work.

Issue: Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification through the in-court testimony of a scientist who didnot sign the certification or perform or observe the test?

Holding: No. Surrogate testimony does not satisfy the (6) Confrontation Clause. The accused has a right to confront the
witness who made the certification. If he or she is unavailable, there must have been a prior opportunity for cross-examination.
Discussion: Bullcoming answers an unanswered question for
military courts, one that C.A.A.F. is seeking answers to, “are statements in documents and certifications that all procedures were properly followed, such as on specimen custody documents, testimonial?” Bullcoming tells us, “yes.” The declarant is necessary for these types of statements. Everything the analyst does to get the sample from the first step into the testing machine is ripe for cross-examination. They go beyond machine generated data. They are assertions you cannot get from a surrogate witness or a document. This question is not quite reached in the cases we’ve had before our courts. Bullcoming does tell us that the C.A.A.F. was ahead of its time in Blazier II by confirming the general holding that an expert may “consistent with the Confrontation Clause and Rules of Evidence, 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.” Justice Sotomayor writes a concurrence that provides food for thought. While Blazier II’s general holding stands, she suggest that not every situation might work this way and gives several hypothetical situations that might change the outcome. One situation that military practitioners should concern themselves with is ensuring your expert is relying on far more than testimonial hearsay. You may face an impossible battle under MRE 703 presenting a surrogate expert and saying he formed his own opinion if he relied solely on testimonial hearsay. The machine generated date is still your “key to freedom” where non- declarant experts are concerned in this area of the law.

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Williams v. Illinois, 132 S.Ct. 2221 (2012) Procedural History: Williams is tried for sexual assault in Illinois state court. The government uses DNA evidence at his trial presented through a state lab analysis who did not conduct either test. Defense alleges a Confrontation Clause violation, which the trial judge overrules. The appellate court concurs and SCOTUS grants certiorari.

FactsDNA is collected during a sexual assault examination. That DNA sample (semen sample) is tested by a private lab though there is no suspect for comparison at the time of the assault. The lab produces a document for the profile and returns it to the state. A few months after the assault, Williams is arrested on unrelated charges. Because of that arrest, his DNA is taken and entered into the state crime computer by the state crime lab. Shortly thereafter, an analyst at the state crime lab runs the DNA profile from the private lab’s semen sample against the state crime computer. She gets a match to Williams DNA sample taken from his unrelated crime. At a judge alone trial, the government calls the state crime lab personnel as their expert. She testifies about running the samples and getting a match and explains, as an expert, how the samples compare and the DNA profile is a match. During her testimony, she refers to the DNA profile generated by the private lab and its origin from the semen sample taken from the victim during the sexual assault exam. She testifies that she used this profile to form her opinion that the samples matched. The government did not admit the private lab’s report.

Issue: Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

Holding: No. In a plurality opinion, the court found that this testimony did not violate the confrontation clause. The report was not admitted and the testimony that the expert gave referring to the DNA report done by the private lab was used for a non- hearsay purpose-to show how she formed her opinion-and not for its truth. The court reasoned that this type of testimony has been allowed by experts under FRE 703 (or the state equivalent rule).

Discussion: The Justices dissent greatly in not only the holding but even the reasoning within the plurality opinion. This case follows series of cases that prohibit use of the report and reading its results when the analyst who performed, supervised, observed or certified the results is not the testifying witness. Here, the plurality made a distinction, possibly without a difference, but a distinction under the law just the same. Because this witness testified as an expert, she is allowed to comment on what she used to form her opinion, Under our own rule 703, an expert can refer to evidence that is otherwise inadmissible hearsay to let the fact-finder know what they used to form their opinion. This goes to the weight to be given the experts opinion. The hearsay evidence itself is not admitted as a document or generally read from, in most cases. The dissent strongly urges that this practice, under this scenario, bypasses the Constitution by allowing the government to smuggle in a report and its results that they could otherwise not admit without the proper witness. Even within those who join the plurality decision, some Justices disagree with the idea that this is permissible in this case; however, they agree that that the testimony did not violate the Confrontation Clause because when the DNA profile was created from the semen sample, there was no suspect, he was still at large and it was not a formalized report or affidavit. This reasoning relies on the type of reasoning we see in the Emergency Expcetion/Primary Purposes cases like Hammon, Davis and Michigan v. Bryant.
Practice Point: The reach of MRE 703 is broad. An expert can often smuggle in hearsay where you have another purpose for offering it, that you could not get in through documents or lay witnesses. However, keep in mind that this decision is based on a judge alone trial and a rule that permitted such testimony in judge alone cases. Where your fact finder is a panel, who is not trained to separate “truth of the matter” from other purposes, this holding may prove no more helpful than Bullcoming and its predecessors for admitting expert testimony.

Military Cases

Tests for Determining if a Statement is “Testimonial”. United States v. Rankin, 64 M.J. 348 (C.A.A.F. 2007).Military courts use the following analytical framework to analyze statements falling within the Crawford third category of potential testimonial statements (the “objective witness” category): “First, was the statement at issue elicited by or made in response to a law enforcement or prosecutorial inquiry? Second, did the “statement” involve more than a routine and objective cataloging of unambiguous factual matters? Finally, was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial?” See alsoUnited States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007); United States v. Gardinier, 65 M.J. 60 (C.A.A.F.

AffidavitsUnited States v. Foerster, 65 M.J. 120 (2007). SGT Porter was deployed when he discovered somebody was using his identity to cash checks in his name. When he returned to home station he went to the bank and filled out a “forgery affidavit” containing the facts of his situation. Specifically, the sworn affidavit contained the check numbers and amounts he believed were false. This document was required by the bank in order for SGT Porter to get his money back. When the time came for trial, SGT Porter was already deployed again, and thus not available to testify. The government admitted the affidavit over defense objection in the place of SGT Porter’s live witness testimony. The granted issue was whether an affidavit filled out by a victim of check fraud pursuant to internal bank procedures and without law enforcement involvement in the creation of the document is admissible as a nontestionial business record in light of Crawford v. Washington and Washington v. Davis. The court held that the affidavit was nontestimonial and properly admissible under the business records exception. The CAAF used the three factors previously identified in Rankin to analyze whether the bank affidavit in this case was testimonial. First, was the statement at issue elicited by or made in response to law enforcement or prosecutorial inquiry? Here there was no governmental involvement in the making of the affidavit at all. The affidavit was made out before appellant had even been identified as the forger, long before there was any request aimed at preparation for trial. Second, did the “statement” involve more than a routine and objective cataloging of unambiguous factual matters? The information contained in the affidavit merely cataloged objective facts, specifically the check numbers and amounts, and SGT Porter’s signature. Finally, was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial? Looking at the context in which the affidavit was made, it is clear that the purpose of the document was to protect the bank from being defrauded by an account holder. The CAAF acknowledged that the Supreme Court opinion in Crawford uses the term “affidavit” several times to describe documents considered testimonial hearsay, however the CAAF does not believe the Court intended for every document titled affidavit to be considered testimonial. If there is no governmental involvement in the making of a statement, then it is unlikely to be considered testimonial.

Statements made to a Sexual Assault Nurse Examiner (SANE). United States v. Gardinier, 65 M.J. 60 (2007). Appellant was convicted of indecent acts and indecent liberties with a child under age 16 and the convening authority approved the sentence to a BCD, three years confinement, and reduction to E-1. The victim was appellant’s five-year- old daughter, KG. KG received a medical exam the day she reported the acts. She was then interviewed a couple days later by a detective and a social worker, followed by a second interview with a sexual assault nurse examiner (SANE). The military judge admitted the “forensic medical form” completed by the SANE and also allowed her to testify about what KG had told her during the exam. The granted issue was whether statements KG made to the SANE were testimonial under Crawford. (There were three granted issues, but only this one implicated the Confrontation Clause. Of the other two issues, one involved Article 31 rights and the other admission of a videotaped statement.) The CAAF held KG’s statements to the SANE were testimonial hearsay and their admission into evidence at the court-martial was error. The CAAF used the three factors previously identified in its opinion in United States v. Rankin, 64 M.J. 348 (2007) for distinguishing between testimonial and nontestimonial hearsay to analyze the statements KG made to the SANE. Taking the first and third Rankin factors together, the CAAF reasoned that on balance the statements were made in response to government questioning designed to produce evidence for trial. The SANE testified at trial that she conducts examinations for treatment, however the form itself is called a “forensic” medical examination form. She also asked questions beyond what might be necessary for mere treatment, including questions about what KG had told the police investigators. Also, the examination was arranged and paid for by the local sheriff’s department. The totality of the circumstances indicated the statements made to the SANE were testimonial.

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Alcohol, Urine and Drug Analysis Results

Random Urinalysis. United States v. Magyari, 63 M.J. 123 (2006), overruled United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), infra, (holding that the test for testimonial does not turn on random or non-random urinalysis procedures). The CAAF granted on the following issue: Whether, in light of Crawford v. Washington, appellant was denied his Sixth Amendment right to confront the witnesses against him where the government’s case consisted solely of appellant’s positive urinalysis. Holding: “in the context of random urinalysis screening, where the lab technicians do not equate specific samples with particular individuals or outcomes, and the sample is not tested in furtherance of a particular law enforcement investigation, the data entries of the technicians are not “testimonial” in nature.”

Urinalysis Based on Individualized Suspicion. United States v. Harris, 65 M.J. 594 (N-M Ct. Crim. App. 2007). Appellant was arrested for trespassing by local police after he was discovered digging in his neighbor’s yard in the pouring rain, wearing only a pair of muddy shorts. One of his explanations for his unusual behavior was that he was “digging for diamonds.” After he admitted to using crystal methamphetamine, he was ordered to undergo a command directed urinalysis based on probable cause. His urinalysis result came back positive, and was introduced against him at trial. The issue was whether the Navy Drug Lab Report on a command directed urinalysis admitted against appellant testimonial hearsay. (There were five assignments of error, however only one implicated the Sixth Amendment.) The holding was: No, the lab report was nontestimonial, and its admission did not violate appellant’s Confrontation rights under the Sixth Amendment. Although the CAAF opinion in Magyari was limited to cases of random urinalysis, the result is the same here in the case of a command directed urinalysis because the lab procedures are the same regardless of the origin of the sample. More specifically, urinalysis samples are processed by the Navy lab in batches of 100, and given a separate identification number, such that there is no way for any lab technician to know which sample is being tested. The lab employees don’t know whether prosecution is anticipated or whether the sample is from a random urinalysis. Therefore, urinalysis lab reports from testing processed in the way it is done at the Navy lab, are nontestimonial hearsay admissible under the business records exception. But see, Blazier I & II, infra.

Physical Evidence Sent to Lab Post-Arrest. United States v. Williamson, 65 M.J. 706 (Army Ct. Crim. App. 2007). Appellant was convicted of wrongful possession with intent to distribute over three pounds of marijuana, based on his possession of a FedEx package containing three bundles of marijuana he mailed to himself on leave in New Orleans. He mailed the package from El Paso, where it was detected by DEA agents using a drug dog. Agents effected a controlled delivery to the address on the package in New Orleans, and executed a search warrant fifteen minutes later. After seizing the package, it was sent to the United States Army Criminal Investigation Laboratory (USACIL), where the substance contained in the three bundles was confirmed to be marijuana. At trial, the government admitted the lab report over defense objection. The military judge admitted the lab report under the business records exception to the hearsay rules. The issue was whether the forensic lab report produced by USACIL at the request of the government after appellant had been arrested constitutes testimonial hearsay. The holding was: Yes, the forensic lab report does constitute testimonial hearsay where the lab report was requested after local police had arrested appellant. The court first briefly reviewed Supreme Court and CAAF caselaw on the Confrontation right since Crawford, before analyzing the

facts of this case primarily using the three factors the CAAF enunciated in Rankin. First, was the statement at issue elicited by or made in response to law enforcement or prosecutorial inquiry? Second, did the “statement” involve more than a routine and objective cataloging of unambiguous factual matters? Finally, was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial? Clearly the testing was done and the report produced in response to a specific request by law enforcement. The lab report was limited to the identity and amount of the tested substance, however, the purpose of the testing was to produce incriminating evidence for use at trial. The court pointed out that this circumstance was described by the CAAF in Magyari as a situation where a lab report would likely be considered testimonial, i.e. prepared at the request of the government, while appellant was already under investigation, for the purpose of discovering incriminating evidence. Critical to the court’s reasoning was the fact that the testing was done after appellant had been arrested and charges had been preferred.

Physical Evidence Sent to Lab Post-Arrest. United States v. Harcrow, 66 M.J. 154 (2008). Appellant was found guilty of use and manufacture of various illegal drugs among other offenses. NCIS and local law enforcement officials arrested him at his house in Stafford County, Virginia, pursuant to a warrant issued on probable cause that he was manufacturing methamphetamine at his residence. While searching the house, plastic bags and metal spoons were seized as evidence consistent with the manufacture of methamphetamine. The plastic bags and spoons were subsequently tested by the Virginia forensic science lab and found to contain heroin and cocaine residue. The government introduced the lab reports against appellant at trial. The Confrontation issue was whether the forensic lab reports constituted testimonial hearsay prohibited by the Sixth Amendment. CAAF used its three factors from Rankin along with its reasoning in Magyari to conclude the lab reports were testimonial. The case is important as the first CAAF case to find a lab report inadmissible as a testimonial statement rather than admissible as a nontestimonial business record.

Urinalysis. United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F. 2010).

Accused convicted of wrongful use of controlled substances based on a random and a consent urinalysis. The command requested “the drug testing reports and specimen bottles” from the lab, stating that they “needed for court-martial use.” The lab sent the command two Drug Testing Reports (DTR) consisting of 1) a cover memo that described and summarized the tests and the results; 2) attached records that included, among other things, the underlying testing data, chain of custody documents, and some handwritten annotations of employees of the lab. The cover memos were signed by the “Results Reporting Assistants” and contained a signed, sworn declaration by Dr. Vincent Papa, the lab’s forensic toxicologist and “Laboratory Certifying Official.” Dr. Papa’s declaration confirmed the authenticity of the records and stated that they were “made and kept in the course of the regular conducted activity” at the lab.

Held: The portions of the drug testing report cover memoranda which summarized and set forth the “accusation” that certain substances were confirmed present in Blazier’s urine at concentrations above the DOD cutoff level were testimonial. The court declined to decide the entire question before it, and instead ordered additional briefings from the parties on the following issues not previously raised by the parties: While the record establishes that the drug testing reports, as introduced into evidence by the prosecution, contained testimonial evidence (the cover memoranda of August 16), and the defense did not have the opportunity at trial to cross-examine the declarants of such testimonial evidence, was the Confrontation Clause nevertheless satisfied by testimony from Dr. Papa?; or if Dr. Papa’s testimony did not itself satisfy the Confrontation Clause, was the introduction of testimonial evidence nevertheless harmless beyond a reasonable doubt under the circumstances of this case if he was qualified as, and testified as, an expert under M.R.E. 703 (noting that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [upon which the expert relied] need not be admissible in evidence in order for the opinion or inference to be admitted”)? See, Blazier II, infra.

Urinalysis. United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010). Held: “Cross-examination of Dr. Papa was not sufficient to satisfy the right to confront [the lab personnel who prepared the testimonial portions of the cover memoranda], and the introduction of their testimonial statements as prosecution exhibits violated the Confrontation Clause.”

Held: “[W]here testimonial hearsay is admitted, the Confrontation Clause is satisfied only if the declarant of that hearsay is either subject to cross-examination at trial, or unavailable and subject to previous cross examination. We further hold that an expert may, consistent with the Confrontation Clause and the rules of evidence, rely on, repeat, or interpret admissible and non hearsay machine-generated printouts of machine- generated data…, and/or 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…. However, the Confrontation Clause may not be circumvented by an expert’s repetition of otherwise inadmissible testimonial hearsay of another.” The court reversed the Air Force court’s decision and remanded the case for the lower court to conduct a harmlessness analysis.

United States v. Dollar, 69 M.J. 411 (C.A.A.F. 2011) Procedural History: Appellant was convicted of adultery and wrongful use of cocaine in violation of Articles 134 and 112a, U.C.M.J. The Air Force Court of Criminal Appeals initially affirmed, but reconsidered its decision following Blazier II. Upon reconsideration, the AFCCA found harmless error in the admission of testimonial hearsay of a laboratory cover memorandum and surrogate witness. The C.A.A.F. granted review.

Facts: The Appellant tested positive for cocaine through random urinalysis. At trial, over defense objection, the government preadmitted, the lab report including the cover memorandum. Further, they called a witness from the lab who was not involved in the testing who provided an expert opinion that included testifying verbatim from portions of the report that were not machine generated.

IssueWhether the lower court erred after finding that the testimonial evidence was improperly admitted at trial, then concluding that the Appellants Confrontation rights were satisfied by a surrogate witness, or that it was harmless error beyond a reasonable doubt.

Holding: No. The Appellant’s rights were not satisfied by a surrogate witness and the lower court’s factual findings used to support harmless error were incorrect.

Discussion: While Dollar does not add much to Confrontation jurisprudence, it reaffirms that surrogate witnesses, while able to rely on non-testimonial hearsay to reach conclusions, cannot smuggle in testimonial hearsay. More importantly, Dollar was the first case to take a step in the direction of questioning Untied States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), which drew  distinction between random urinalysis reports and those generated for law enforcement purposes.

United States v. Cavitt, 69 M.J. 413 (C.A.A.F. 2011)

Procedural History: The Appellant was convicted of wrongful use of marijuana and assault in violation of Articles 112a and 128, U.C.M.J. The Air Force Court of Criminal Appeals found error in admission of the laboratory cover memorandum but found the error harmless. C.A.A.F. granted review.
Facts: Appellant consented to a drug tested following a period of unauthorized absence. The lab report, containing a cover memorandum, custody document, confirmation intervention log, quality control memorandum, chain of custody documents and machine generated data were admitted at trial over defense objection. The AFCCA found error in the memorandum but found the remainder of the report admissible as a business record.

Issue: Did the military judge abuse his discretion when he allowed the lab expert to testify using testimonial hearsay and did admission of the report without the declarant who conducted the testing being present violate the Appellant’s Sixth Amendment’s Confrontation right?

Holding: The case was reversed and remanded for reconsideration in light of Blazier II.
Discussion: The court explained that the AFCCA incorrectly relied on the business records exception as a firmly rooted exception for lab reports based on Ohio v. Roberts, 448 U.S. 56 (1980) . This does not satisfy the Confrontation Clause. Even without Blazier II, AFCCA should have identified this problem relying solely on Crawford v. Washington, 541 U.S. 36 (2004). The question before the court was not one of hearsay, rather one of Confrontation and the landscape changed in 2004 from Roberts to Crawford. Beyond that, the court pointed out that the military judge failed to address the issue of the expert repeating testimonial hearsay during his testimony. Again in this case, Magyari raises its ugly head on the issue of random vs. non-random urinalysis.

United States v. Lusk, 70 M.J. 248 (C.A.A.F. 2011) Procedural History: An officer panel convicted the Appellant of wrongful use of cocaine in violation of Article 112a, U.C.M.J. The Air Force Court of Criminal Appeal found harmless error in failure to give an instruction and affirmed. C.A.A.F. granted review.

Facts: Appellant provided a urine sample during a unit inspection. On request by trial counsel, Appellant’s sample was tested by both the AFDTL and AFIP. Both yielded positive results. In pretrial motions, the military judge excluded the AFIP reported stating it violated the accused’s Sixth Amendment Confrontation rights. He reserved ruling on whether it could be used later, in rebuttal. During cross-examination of government’s expert witness, defense counsel challenged the validity and reliability of the AFDTL report. The prosecution moved to use the AFIP report to rebut the attack. The military judge ruled that the government’s expert could testify about his reliance on the AFIP report to form his opinion under MRE 703, but that the report would not be admitted into evidence. The judge stated he would give an instruction that the report or results could not be used for the truth but only to show how the expert reached his conclusions. However, after extensive cross- examination by defense counsel, the judge determined he would not give the instruction.

Issue: Did the military judge error in admitting the testimonial hearsay of the AFIP report in violation of the accused’s Sixth Amendment Confrontation rights through the surrogate expert and then further error by failing to give a limiting instruction that such information could only be used to show how the expert formed his opinion? If it was error, was the error harmless?

Holding: The intermediate court erred in not considering how unrestricted use of inadmissible testimonial hearsay, admitted through a surrogate witness in violation of the Sixth Amendment, influenced the conviction. The court held the failure to give the limiting instruction, regardless of how both sides used the information, was error. As such, the findings of the intermediate court are set aside and the case is remanded for a review.

Ucmjarticle120406 Gonzalez &Amp; Waddington - Attorneys At Law

Discussion: Lusk tells us that the court intends to closely follow its holding in Blazier II where the government attempts to “smuggle” in testimonial hearsay through anyone other than the declarant from the testing laboratory. Government counsel should proceed with caution even when using a surrogate expert who will give an opinion based on reviewing a report. Carefully form questions to ensure that no testimonial hearsay is repeated. While the counsel in this case were obviously over the line, it is easy to see how C.A.A.F. is scrutinizing records to ensure that only machine generated data and nontestimonial hearsay is repeated surrogate experts and requiring limiting instructions even where defense counsel have used the evidence themselves during cross-examination.

United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011) Procedural History: Appellant was convicted of several offenses, to include one specification of wrongful use of cocaine in violation of Article 112a. This case was tried prior to Melendez Diaz v. Massachusetts, et. al. The Navy-Marine Corps Court of Criminal Appeals found no error and affirmed. C.A.A.F. granted review.

Facts: The government called an expert witness from the lab who neither tested, observed nor signed the cover memorandum for the urinalysis sample. The expert was the FLCO (final lab certifying official) who reviews all the data after the fact and essentially says everything was conducted IAW DoD procedures. The court admitted the lab report, which included a cover memorandum as well as a specimen custody document containing notations about the test results and procedures. The NMCCA, relying heavily on Magyari, found no error. That court reasoned that the lab report was not generated for court-martial use and as such, could not be testimonial in nature. Therefore, the court found the report admissible as a business record using the reliability test from Ohio v. Roberts, 448 U.S. 56 (1980).

Issues: Whether, in light of the U.S. Supreme Court’s ruling in Melendez-Diaz v. Massachusetts, the admission of the laboratory documents violated the appellant’s Sixth Amendment right to confrontation. Whether defense counsel’s objection to the laboratory report constituted a valid Crawford objection and, if not, whether the objection was waived or forfeited. If it was forfeited, did admission constitute plain error? Holding: Admitting the cover memorandum was error (consistent with previous decisions); however, admitting the specimen custody document without the testimony of the certifying/testing parties was plain and obvious error. Defense counsel had no “colorable objection” under the law at the time of this trial so he did not forfeit the Appellant’s rights. The NMCCA decision is reversed and remanded for a decision on HBRD.

Discussion: The newest development in this line of cases is the specimen custody document. The court found it contained testimonial hearsay and violated the Confrontation clause being admitted and/or discussed by anyone other than the declarant. This ruling is seen by many as a long time coming and is consistent with the recent ruling in Bullcoming v. New Mexico, 564 U.S. ___ (2011). While the cover memorandum is understood as testimonial, prior decisions have never ruled out the possibility that other parts of the lab report could contain testimonial hearsay. In this case, it happens to be that notations were made on the specimen custody document certifying the results and quality of the procedures. Such notations could just have easily been found on other pages of the report as well.

In taking on the second issue, the court finally reapproached United States v. Magyari and declared it a dead letter. In Magyari, the court focused the testimonial determination on the initial purpose of the sample being collected for testing, the technicians having no reason to know which sample belonged to an accused, and the lab being under no pressure to reach a particular conclusion. Sweeney recognizes the error in this logic. Once an accused’s sample tests positive in an initial screening, an analyst must “reasonably understand themselves to be assisting in the production of evidence when they perform re-screens . . . and subsequently make formal certifications.” Sweeny confirms that the testimonial determination should turn on the purpose for which the statements in the report are made. If not for use later as evidence, why make a certification at all? There would be no need for any type of formal verification; administrative proceedings require much less formality, due process and would not trigger Sixth Amendment Confrontation rights. Additionally, certifications are requested after a decision to court- martial is made, leaving no question what the purpose is for. Finally, the lower court reliance on the business records exception is outdated. Crawford’s testimonial determination, not Ohio v. Roberts reliability test is the controlling law for Confrontation.

Dissent: The dissent, written by Judge Baker and joined by Judge Stucky, disagrees with the majority’s reasoning concerning the specimen custody document. The dissents focuses on the primary purpose behind the military’s testing program, arguing that it is not for court-martial and is a command program for readiness and fitness for duty.

Note: Practitioners should not read Sweeney as necessitating the testing official to prove every urinalysis case; however, it should be read as requiring greater scrutiny in what documents are used if you do not have the declarant. Moreover, understanding the limitations of what your surrogate witness can testify about. What remains of your case may be a testifying expert that can’t give you the testimony you need about the quality of the procedures followed (See Bullcoming). That does not mean there won’t be cases where issues arise that require the actual declarant (see Bullcoming) because of issues with testing, etc. Upcoming cases may further define the limits of Blazier, Sweeney and Bullcoming.

Casual Remarks / Statements to Family, Friends, Co-Workers, or Fellow Prisoners

Statements by child to parents. United States v. Coulter, 62 M.J. 520 (N-M. Ct. Crim. App. 2005). Two-year old sex abuse victim tells parents that “he touched me here” pointing to vaginal area. Statement admitted under residual hearsay exception (with an alternative theory of present sense impression). Agreeing with trial court, the Navy-Marine Corps court found the statement was nontestimonial as there was no expectation that the statement would be use prosecutorially nor was there any government involvement.

Statements to co-workers. United States v. Scheurer, 62 M.J. 100 (2005). The accused and his wife were charged with various drug related offenses. Prior to the charges and over a period of months, the accused’s wife engaged in a number of conversations in which she told her friend about the drug use of both herself and the accused. The friend eventually contacted OSI who in turn asked the friend to wear a wire and engage the wife in further conversations about the accused’s drug use. Several inculpatory statements were obtained, some of which implicated the wife, some the accused, and some both the accused and the wife. At the accused’s trial, the wife invoked spousal privilege and was thus declared unavailable. The trial court then admitted the statements of wife to her friend against the accused. Citing United States v. Hicks, 395 F.3d 173 (3d Cir. 2005), the court first determined that the statements taken covertly were not “testimonial” in nature. Such statements, the court reasoned, did not implicate the specified definitions of testimonial as enumerated in Crawford. Further, the court found that such statements would be nontestimonial when the declarant did not contemplate the use of those statements at a later trial.

Personnel Records. United States v. Rankin, 64 M.J. 348 (2007). The CAAF affirmed the lower court holding that service record entries for a period of unauthorized absences were not testimonial for the purposes of the Confrontation Clause. The CAAF found that three of the four documents introduced by the government were nontestimonial, and that although the fourth may have qualified as testimonial, the information it contained was cumulative with information in the other three. In analyzing the four documents, the CAAF conducted a three factor analysis, looking first at prosecution involvement in the making of the statement.

Second, the court asked whether the reports merely catalogued unambiguous factual matters. And third, the court used a primary purpose analysis derived from Davis v. Washington. After using the three steps to find that three of the four documents were nontestimonial, the court went on to conduct the confrontation analysis in Roberts v. Ohio and conclude that the documents were properly admitted under the business records exception to the hearsay rules.

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