25. Confrontation Clause

Last Updated: 1/21/21

https://cite.case.law/mj/69/413/https://cite.case.law/mj/55/173/

CHAPTER 25

Confrontation Clause

1.       Introduction

2.       Satisfying the Confrontation Clause

3.       Restrictions on Confrontation Imposed by Law

4.       Literal Face-to-Face Confrontation

5.       Appellate Review

• Appx A.      Confrontation Clause Analysis Chart

• Appx B.      Confrontation – Nontestimonial Statements Chart

 

I. Introduction

A. General

1. The Sixth Amendment to the Constitution provides:  “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him….”  U.S. Const. amend. VI.

2. The protections of the Sixth Amendment’s Confrontation Clause apply in prosecutions of members of the armed forces. United States v. Jacoby, 29 C.M.R. 244, 246-247 (C.M.A. 1960) (Overruling United States v. Sutton, 11 C.M.R.220 (C.M.A. 1953) and United States v. Parrish, 22 C.M.R. 127 (C.M.A. 1956)

B. Organization of Outline

1. Part II discusses satisfying the Confrontation Clause through witness production, waiver, and forfeiture by wrongdoing. 

2. Parts III and IV discuss two broad categories of Confrontation Clause cases. Part III discusses the law involving restrictions imposed by law or by a court on the scope of cross-examination.  Part IV discusses the law involving the admissibility of out-of-court statements and reflecting the right to literally confront a witness at trial. [Note: the classification of cases in Part IV is modeled in part on the organizing principles of the National District Attorney Association’s “Crawford Outline.”]

3. Part V discusses the appellate review issues for Confrontation Clause cases. 

4. The appendices contain Confrontation Clause analysis charts.

II. Satisfying the Confrontation Clause Through Opportunity to Cross-Examine, Waiver, and Forfeiture

A. Opportunity to Cross Examine.

1. Producing the witness will satisfy the Confrontation Clause even if the witness cannot be cross-examined effectively. The Confrontation Clause guarantees only an opportunity to cross-examine witnesses. There is no right to meaningful cross-examination. Generally speaking, an opportunity to cross-examine a forgetful witness satisfies the confrontation clause.  If, however, a witness is unable or refuses to testify (even though the witness is on the witness stand), it follows that the witness cannot be cross-examined.

2. Delaware v. Fensterer, 474 U.S. 15 (1985) (per curiam). The Court held that an expert witness’ inability to recall what scientific test he had used did not violate the Confrontation Clause even though it frustrated the defense counsel’s attempt to cross-examine him. “[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the fact finder the reasons for giving scant weight to the witness’ testimony.”

3. United States v. Owens, 484 U.S. 554 (1988). While in the. hospital, the victim identified the accused to an FBI agent. At trial, due to his injuries, which affected his memory, the victim could only remember that he earlier identified the accused, but not the reason for the identification. The victim was under oath and subject to cross-examination; the Confrontation Clause was satisfied. 

4. United States v. Rhodes, 61 M.J. 445 (2005).  Witness against accused testified but claimed a lack of memory.  The previous confession of the witness, implicating accused, was admitted against appellant with certain conditions.  The defense argued that the appellant’s confrontation rights were violated because the witness did not “defend or explain” his statement as required by Crawford v. Washington.  The court ruled that the Supreme Court’s previous case of United States v. Owens was not overruled by Crawford.  By presenting the witness, the government met the confrontational requirements of the Sixth Amendment.

5. United States v. Gans, 32 M.J. 412 (C.M.A. 1991). The military judge admitted a sexual abuse victim’s statement given thirty months earlier to MPs as past recollection recorded (MRE 803(5)).  At trial, victim could not remember details of sexual abuse incidents. Appellant claimed that because the daughter’s recollection was limited, his opportunity to cross-examine was also limited. The Court of Military Appeals disagreed, relying on the Fensterer and Owens decisions that there is no right to meaningful cross-examination.

B. Waiver. 

1. Affirmative waiver of confrontation by the accused will satisfy the Sixth Amendment. Waiver cases generally arise when the defense makes a tactical decision not to cross-examine a witness, then asserts a Confrontation Clause violation.

2. United States v. Martindale, 40 M.J. 348 (C.M.A. 1994). During a deposition and again at an Article 39(a) session, a 12-year-old boy could not or would not remember acts of alleged sexual abuse. The military judge specifically offered the defense the opportunity to put the boy on the stand, but defense declined. Confrontation was waived and the boy’s out-of-court statements were admissible.

a) United States v. McGrath, 39 M.J. 158 (C.M.A. 1994). Government produced the 14-year-old daughter of the accused in a child sex abuse case. The girl refused to answer the trial counsel’s initial questions, but conceded that she had made a previous statement and had not lied in the previous statement. The military judge questioned the witness, and the defense declined cross-examination. The judge did not err in admitting this prior statement as residual hearsay.

b) United States v. Bridges, 55 M.J. 60 (2001). The Court of Appeals for the Armed Forces (CAAF) held that the Confrontation Clause was satisfied when the declarant took the stand, refused to answer questions, and was never cross-examined by defense counsel. The military judge admitted the declarant’s hearsay statements into evidence. While a true effort by the defense counsel to cross-examine the declarant may have resulted in a different issue, the defense’s clear waiver of cross-examination in this case satisfied the Confrontation Clause. Once the Clause was satisfied, it was appropriate for the military judge to consider factors outside the making of the statement to establish its reliability and to admit it during the government case-in-chief under the residual hearsay exception.

C. Forfeiture by Wrongdoing. 

1. An accused may forfeit his right to confront a witness if he engaged in wrongdoing that was intended to, and did, procure the unavailability of the witness.

2. Crawford v. Washington, 541 U.S. 36, 62 (2004). “[T]he rule of forfeiture by wrongdoing…extinguishes confrontation claims on essentially equitable grounds.”  

3. Giles v. California, 128 S. Ct. 2678 (2008).  The doctrine of forfeiture by wrongdoing requires the government to show that the accused intended to make the witness unavailable when he committed the act that rendered the witness unavailable.  This interpretation is consistent with the Federal and identical Military Rule of Evidence 804(b)(6).  It is not enough to simply show that the accused’s conduct caused the unavailability. 

4. United States v. Clark, 35 M.J. 98 (C.M.A. 1992). Accused’s misconduct in concealing the location of the victim and her mother waived any constitutional right the accused had to object to the military judge’s ruling that the victim was “unavailable” as a witness.

5. Forfeiture of hearsay rights versus confrontation rights. The constitutional doctrine of forfeiture and the codification of that doctrine in the evidentiary hearsay rules are related, but functionally separate, concepts.

a) Military Rule of Evidence 804(b)(6) provides that “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness” is not excluded by the hearsay rule if the declarant is unavailable.  The overwhelming majority of federal courts apply a preponderance of the evidence standard to determine whether an accused engaged or acquiesced in wrongdoing.  2 Stephen A. Saltzburg, Lee D. Schinasi, and David A. Schlueter, Military Rules of Evidence Manual 804.05[3][f] (2003).

b) Giles v. California, 128 S. Ct. 2678, 2686 (2008). “No case or treatise that we have found…suggested that a defendant who committed wrongdoing forfeited his confrontation rights but not his hearsay rights.”

c) United States v. Marchesano, 67 M.J. 535 (Army Ct. Crim. App. 2008).  Indicates that an accused could forfeit his hearsay rights under MRE 804(b)(6) through wrongdoing by acquiescence but perhaps not his confrontation rights (confrontation forfeiture requires some intent or design on the behalf of the accused).

d) Standard of proof at trial for judge’s determination of forfeiture: Preponderance of evidence. United States v. Marchesano, 67 M.J. 535, 544 (Army Ct. Crim. App. 2008). 

III. Restrictions on Confrontation Imposed by Law

A. Limitations on Cross-Examination

1. Cross-examination is an important part of the right to confront witnesses. The right to confrontation, however, is not absolute. The courts balance the competing state interest(s) inherent in rules limiting cross-examination with the accused's right to confrontation.

a) “The right of cross-examination is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.’” Chambers v. Mississippi, 410 U.S. 284, 295 (1973).

b) Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. Davis v. Alaska, 415 U.S. 308, 316 (1974).

c) “[W]e have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability – even if the defendant would prefer to see that evidence admitted.” Crane v. Kentucky, 476 U.S. 683, 690 (1986).

d) “[T]he right to confront and cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers, 410 U.S. at 295.

e) “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

f) Although a criminal defendant waived his rights under the Confrontation Clause to object to the admission of hearsay statements because of his misconduct in intimidating a witness, he did not also forfeit his right to cross-examine that same witness. Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003).

2. Juvenile Convictions of Key Prosecution Witness. Davis v. Alaska, 415 U.S. 308 (1974). The exposure of a witness’s motivation is a proper and important function of cross-examination, notwithstanding state statutory policy of protecting the anonymity of juvenile offenders.

3. Voucher Rule. Chambers v. Mississippi, 410 U.S. 284, 295 (1973). The defendant was deprived of a fair trial when he was not allowed to cross-examine a witness who had confessed on numerous occasions that he committed the murder. The Court observed that “the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. But its denial or significant diminution calls into question the ultimate ‘integrity of the fact-finding process’ and requires that the competing interest be closely examined (citations omitted).

4. Ability to remember. United States v. Williams, 40 M.J. 216 (C.M.A. 1994). Judge erred in precluding defense from cross-examining government witness (and accomplice) to robbery about drug use the night of the robbery.

5. Bias. 

a) United States v. George, 40 M.J. 540 (A.C.M.R. 1994). Judge improperly restricted defense cross-examination of government toxicology expert who owned stock in the lab that tested accused’s urine sample pursuant to a government contract. Questions about the expert’s salary were relevant to explore bias. Judge also erred in preventing defense from asking the defense expert about possible sources of contamination of the urine sample.

b) United States v. Gray, 40 M.J. 77 (C.M.A. 1994). Accused was charged with indecent acts with nine-year-old daughter of SGT M and sodomy and adultery with SGT M’s wife. Evidence that DHS had investigated the “victim’s” family was improperly excluded. Mrs. M. could have accused Gray of the offenses to divert attention away from her dysfunctional family and the evidence would have corroborated Gray’s claim that he visited Mrs. M’s home in response to requests for help. This violated accused’s right to present a defense.

6. Motive to lie. United States. v. Everett, 41 M.J. 847 (A.F.C.M.R. 1994). The military judge improperly prevented the defense counsel from cross-examining a rape victim about her husband’s infidelity and his physical abuse of her.

7. Discrepancy in Laboratory Tests.  United States v. Israel, 60 M.J. 485 (C.A.A.F. 2005).  In a urinalysis case, the military judge limited the defense ability to cross-examine witnesses regarding the possibility of error in the testing process by precluding the defense from confronting expert witnesses with material impeachment evidence.  The CAAF held that the military judge abused his discretion in limiting the ability of the defense to cross-exam the government experts, and that the error was not harmless beyond a reasonable doubt.

8. Rule 403. 

a) United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007).  Appellant was convicted of stealing over a million dollars’ worth of military property from the Defense Reutilization and Marketing Office (DRMO) at Fort Bragg over a three year period.  At trial, one of his coconspirators, SFC Rafferty, testified for the government in return for an agreement to plead guilty in federal court to one count of larceny of government property valued over one thousand dollars.  Appellant’s civilian defense counsel cross-examined SFC Rafferty at length about his agreement with the government, however the government objected when the defense counsel attempted to delve further into the possible punishments SFC Rafferty might receive at his federal trial.  The military judge sustained the objection.  The issue was whether appellant was denied his Sixth Amendment right to confrontation when the military judge limited cross-examination of a key government witness regarding the possible sentence under the witness’s plea agreement.  (There were two issues granted, the other involved instructions given by the military judge) The holding was:  No, sufficient cross-examination was permitted, and the military judge properly identified and weighed the danger of misleading the members under MRE 403.  The military judge in this case had already allowed plenty of inquiry into the witness’s bias as a result of his agreement with the government, and merely limited the defense from further questioning on another aspect of the agreement.  Since sufficient cross-examination into bias as a result of the plea agreement was permitted, appellant’s Sixth Amendment right to Confrontation was not violated by the military judge’s limitation.

b) United States v. James, 61 M.J. 132 (C.A.A.F. 2005).  Before members, appellant pleaded guilty to using and distributing ecstasy.  During the sentencing phase of the trial, appellant sought to cross-exam a witness whom the appellant argued had convinced him to try ecstasy.  Specifically, appellant sought to cross-examine the witness concerning the specific terms of the witness’ pretrial agreement with the government.  The purpose of the cross-examination into the quantum of the agreement would be to establish that the friend had a reason to lie given the benefit of the deal afforded to him (his agreement was for eighteen months confinement from a maximum of fifty-two years).  The military judge precluded cross-examination of the specifics of the agreement, but allowed the defense to cross-examine the witness on the existence and general nature of the agreement, the order by the convening authority to the witness to testify, the grant of immunity to the witness, and the considerations of pending clemency.  The court found that that military judge did not err by reasonably limiting the scope of cross-examination to avoid the confusion of the issues.

9. Rule 412.

a) United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).  The military judge denied the accused’s initial MRE 412 motion to cross examine the victim on a prior, unfounded rape allegation.  During direct examination the government opened the door by using it to bolster her reason for delayed reporting the current allegation.  The court found it error to deny the accused the ability to cross examine on it after the government opened the door.  Denying the accused the right to confront the victim with her previous allegation of rape under MRE 412(b)(1)(c) after the government opened the door on direct examination in an effort to bolster her credibility denied the accused his right to confrontation despite the military judge’s earlier ruling to exclude the evidence in pretrial motions.  A key component of the Confrontation Clause is the crucible of cross-examination.  Davis v. Alaska, 415 U.S. 308, 316-317 (1974).  This right becomes even broader when the prosecution opens the door to impermissible evidence during their case in chief.  A failure by the intermediate court was not recognizing that witness credibility is an issue for the fact finder. 

b) United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011).  The C.A.A.F. held that the prior decision in United States v. Banker, see below, was wrong when it held that the victim’s privacy interests should be balanced against an accused’s constitutional rights when determining admissibility under MRE 412.  While the balancing test itself is not per se unconstitutional, it could be applied in an unconstitutional manner.  Where evidence is constitutionally required and survives the balancing test under MRE 403, an accused will be allowed to confront his accuser with the same regardless of the level of invasive to a victim’s privacy.  Despite this holding, the facts of this case did not allow the accused to confront the victim with evidence under MRE 412.  The accused in this case did not make a showing that the evidence found in e-mails alluding to the victim being sexually active was constitutionally required under MRE 412(b)(1)(c).  The military judge did allow cross-examination on the e-mails without allowing questions into the content by using MRE 611 MRE 611.  While an accused has a right to confront his accuser, that right is not without limitations.  Davis v. Alaska, 415 U.S. 308, 316 (1974).  The Confrontation Clause protects a person’s rights to a fair cross-examination of a witness to establish bias or motive to lie.  That cross-examination can be curtailed when the probative value is outweighed by the danger of unfair prejudice.  These dangers of unfair prejudice include harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.  In Delaware v. Van Arsdall, 475 U.S. 673, 678–79 (1986).  Here, the judge had already determined that there was insufficient probative value in the e-mails to rise to the level of constitutionally required evidence.  As such, he may be allowed an opportunity to expose her motive to lie, but not in every possible manner.  The military judge placed limits on the inquiry, and CAAF held that the judge had admitted sufficient evidence to establish TE’s motive to lie. Excluding the sexual nature of the worrisome e-mails did not violate the constitutional rights of the accused.  The court did not conduct any MRE 403 analysis. 

c) United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011).  The C.A.A.F. held that in an Article 120 case it was error for the military judge to exclude evidence that the victim had an extra marital affair two years prior.  When she disclosed the earlier affair to her husband, he became enraged and kicked down the wife’s lover’s door.  The court found that the military judge prevented Ellerbrock from presenting a theory that a previous affair made it more likely that CL would have lied in this case; that it was a fair inference that a second affair would be more damaging to CL’s marriage than a single event; and there was evidence in the record to support this inference, particularly the evidence that the husband had had a prior violent reaction when learning about CL’s affair.   The court found that the proffered evidence had a direct and substantial link to CL’s credibility, and her credibility was a material fact in the case.  The probative value of the evidence was high because the other evidence in the case was so conflicting, and was not outweighed by other

d) United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004).  Abrogated by United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011).  The C.A.A.F. held that evidence proffered under the constitutionally required exception under MRE 412(a) is admissible only if the evidence is 1) relevant; 2) material; and 3) favorable to the defense AND it is not outweighed by the victim’s privacy.  This balancing test, applied in this manner, is unconstitutional under United States v. Gaddis.  While other sections of Banker may be useful in helping counsel determine relevant and material, if evidence is found constitutional, the victim’s privacy cannot be used to exclude it regardless of the significance.  

e) United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010). In a marital rape and assault case, the CAAF held that, although the trial judge’s exclusion of extrinsic evidence of an alleged relationship between the accused’s wife and another man did violate the accused’s constitutional right to confrontation, but that the error was harmless beyond a reasonable doubt. See also, United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010).

10. Rule 513.  Appellant argued that the military judge’s failure to conduct an in camera review and to require disclosure of the mental health records of the two primary witnesses deprived him of his right to confront those witnesses in violation of the Sixth Amendment right to cross examine these witnesses.  The C.A.A.F. concluded that the Appellant in this case was able to fully cross-examine the witnesses on their credibility and motive to misrepresent and that in order for Appellant to prevail, there must be an abuse of discretion by the military judge to not order the in camera review and/or disclosure of records and that abuse of discretion materially prejudiced Appellant’s substantial rights.  See United States v. Chisum, 77 M.J. 176 (C.A.A.F. 2018).

B. Limits on Face-To-Face Confrontation (Remote & Screened Testimony)

1. The issue in remote and screened testimony is balancing confrontation rights against state’s interest in protecting certain witnesses. Arguably, this section could also fit under the category of “Literal Confrontation: The Admissibility of Out-of-Court Statements” at Part IV, Supra.  See, Maryland v. Craig, 497 U.S. 836 (1990) (Scalia, J., joined by Brennan, J., Marshall, J., and Stevens, J., dissenting). 

2. The Supreme Court.

a) Maryland v. Craig, 497 U.S. 836 (1990). The child victim testified by one-way closed circuit television with a defense counsel and a prosecutor present. The testimony was seen in the courtroom by the accused, jury, judge, and other counsel. 

(1) The preference for face-to-face confrontation may give way if it is necessary to further an important public policy, but only where the reliability of the testimony can otherwise be assured.

(2) Necessity. Before allowing a child victim to testify in the absence of face-to-face confrontation with the accused, the government must make a case specific showing that:

(a) The procedure proposed is necessary to protect the child victim,

(b) The child victim would be traumatized by the presence of the accused, and

(c) The emotional distress would be more than de minimis.  What does de minimis mean? Generally, “more than ‘mere nervousness or excitement or some reluctance to testify.’” See United States v. McCollum, 58 M.J. 323 (C.A.A.F. 2003) (citing Maryland v. Craig, 497 U.S. 836 (1990).What's the constitutional minimum required?  See Marx v. Texas, 987 S.W.2d 577 (Tex.).

(3) Important Public Policy. The state’s interest in "protecting child witnesses from the trauma of testifying in a child abuse case" is an important state interest.

(4) Reliability Assured. The Court stated that confrontation has four component parts that assure reliability. You preserve reliability by preserving as many of these component parts as possible in the proposed procedure.

(a) Physical presence;

(b) Oath;

(c) Cross-examination;

(d) Observation of the witness by the fact finder.

3. Military Cases.

a) United States v. Pack, 65 M.J. 381 (C.A.A.F. 2008).  Remote live testimony by a child victim witness.  The CAAF held that the Supreme Court opinion in Crawford did not affect its earlier opinion in Maryland v. Craig, which laid out the standards for remote live testimony of child abuse victims. In so holding, the CAAF acknowledged that Crawford appeared inconsistent with Craig, but, because the Supreme Court did not expressly overrule Craig, the CAAF would continue to apply the Craig standard.

b) United States v. Anderson, 51 M.J. 145 (C.A.A.F. 1999). The court approved the government’s repositioning of two child victims such that they did not face the accused and the government’s use of a screen and closed circuit television. Closed circuit television was used so the military judge, counsel, and the reporter could all see the testimony.

c) United States v. McCollum, 58 M.J. 323 (C.A.A.F. 2003). The CAAF approved the military judge’s decision to permit a 12-year-old child victim to testify via two-way closed circuit television after finding the witness would be traumatized if required to testify in open court in the presence of the accused and that the witness would be unable to testify in open court in the accused’s presence because of her fear that the accused would beat her. Accused absented himself from the courtroom pursuant to RCM 804. The military judge found that the victim would be unable to testify in the accused’s presence because of both fear and trauma, linking the two concepts.  CAAF noted that MRE 611(d)(3)(A) and (B) are sufficient independent of each of each other, meaning that military judge must find that a witness will be unable to testify reasonably because of fear or trauma caused by the accused’s presence. Further, as long as the finding of necessity is based on the fear or trauma caused by the accused’s presence alone, “it is irrelevant whether the child would also suffer some fear or trauma from testifying generally.” The CAAF also determined that a military judge is not required under the Sixth Amendment nor MRE 611(d) to interview or observe a child witness before making a necessity ruling. Further, the fear of a witness need not be fear of imminent harm nor need it be reasonable. Rather, the fear required under the rule must “be of such a nature that it prevents the child from being able to testify in the accused’s presence.”

4. Options.  Several ways have been tried and approved by courts. They include:

a) One-way closed circuit television. Maryland v. Craig, 497 U.S. 836 (1990); United States v. Longstreath, 45 M.J. 366 (C.A.A.F. 1996).

b) Two-way closed circuit television. RCM 914A; 18 U.S.C. § 3509.

c) A partition. United States v. Batten, 31 M.J. 205 (C.M.A. 1990).  An elaborate courtroom arrangement to protect the child victim, which included screens and closed circuit television. Testimony by a psychologist to show the impact conventional testimony would have on the witness. Special findings by the military judge (judge alone trial) that he relied on the child’s excited utterance and not on her courtroom testimony. Harmless error analysis by CMA as allowed by US Supreme Court in Coy and Craig. Case affirmed.

d) Witness testifying with her back to the accused but facing the judge, and counsel. United States v. Thompson, 31 M.J. 168 (C.M.A. 1990). The child victims testified at a judge alone court-martial with their backs to the accused. The military judge, defense counsel, and trial counsel could see them. A psychologist testified for the government in support of the courtroom arrangement.

e) Profile to the accused. United States v. Williams, 37 M.J. 289 (C.M.A. 1993). Child victim testified from a chair in the center of the courtroom, facing the military judge with the defense table to the immediate left of her chair. The accused was not deprived of his right to confrontation even though he could not look into the witness’ eyes. The witness testified in the accused’s presence and he could see her face and demeanor.

f) Whisper Method. United States v. Romey, 32 M.J. 180 (C.M.A. 1991).  The child victim whispered her answers to her mother who repeated the answers in open court. The mother was certified as an interpreter. Craig was satisfied when “[t]he judge impliedly made a necessity finding in this case” (emphasis added). The military judge relied on representations made about the Article 32 testimony; trial counsel’s pretrial discussions with the child witness; and the military judge’s observations of the child at an Article 39(a) session in the accused’s presence. The Court also held that the child victim was available for cross-examination, and the accused’s due process rights were not violated.

5. Article 32 Investigation. United States v. Bramel, 29 M.J. 958 (A.C.M.R. 1990). The child victim testified behind a partition at the Article 32 investigation. Accused could hear but not see the victim, but the defense counsel cross-examined him. The child testified at the court-martial without the partition. Held:  (1) right to face-to-face confrontation is a trial right; (2) Article 32, UCMJ, only provides for the right of cross-examination, not confrontation; (3) an Article 32 investigation is not a critical stage of the trial; (4) Bramel is comparable to Kentucky v. Stincer, 482 U.S. 730 (1987) (defendant excluded from competency hearing of child witness); and (5) the accused did not have the right to proceed pro se at the Article 32 investigation.

6. Do not remove the accused from courtroom.  See United States v. Daulton, 45 M.J. 212 (C.A.A.F. 1996) (accused watched testimony of daughter over closed circuit television; confrontation rights violated); United States v. Rembert, 43 M.J. 837 (Army Ct. Crim. App. 1996) (accused watched testimony of 13-year-old carnal knowledge victim via two-way television in the deliberation room; without ruling on Sixth Amendment, the Army court agreed that accused’s due process rights were violated). The accused may, under RCM 804(c), voluntarily leave the courtroom to preclude the use of the procedures outlined in RCM 914A.

7. Can witnesses who are not victims use remote procedures? Yes. Federal courts have interpreted 18 U.S.C. § 3509 to allow non-victim child witnesses to testify remotely. United States v. Moses, 137 F.3d 894 (6th Cir. 1998); United States v. Quintero, 21 F.3d 885 (9th Cir. 1994). Both cases interpret Maryland v. Craig. Both cases focus on the Court’s approval of the state interest: “the state interest in protecting child witnesses from the trauma of testifying in a child abuse case.” The courts do not comment on the fact that the four witnesses in Craig who testified remotely were all victims.

8. Other issues in remote testimony.

a) United States v. Yates, 2006 U.S. App. LEXIS 3433 (11th Cir. 2006).  Prosecution witnesses living in Australia declined to travel to the United States for trial.  The witnesses testified at trial via live, two-way video conference. The Eleventh Circuit, following an en banc hearing, held that this arrangement violated the defendants’ Sixth Amendment right to confront witnesses against them.   Citing to Maryland v. Craig as the controlling case, the court found that the prosecutor's need for the video conference testimony to make a case and expeditiously resolve it were not the type of public policies that were important enough to outweigh defendants' rights to confront their accusers face-to-face. The court further found that the prosecution had failed to establish the necessity for the use of remote testimony when another viable option, deposition under the Federal Rules for Criminal Procedure, was available to the government.

b) Harrell v. Butterworth, 251 F.3d 926 (11th Cir. 2001). Appellant was convicted of robbing an Argentinean couple. At trial, the victims were unavailable to testify in person because of illness and unwillingness to return to the United States. The trial judge agreed to allow testimony via satellite over defense objection. Citing to Maryland v. Craig, the Florida Supreme Court pointed out that the Confrontation Clause does not guarantee an absolute right to a face-to-face meeting between a defendant and witnesses; rather, the underlying purpose is to ensure the reliability of trial testimony. In this case, Maryland v. Craig was satisfied because (1) public policy considerations justified an exception to face-to-face confrontation, given the state interest “to expeditiously and justly resolve criminal matters that are pending in the state court system;” (2) the remote testimony was necessary, given the fact that the witnesses were absolutely essential to the government case and lived beyond the court’s subpoena power; and (3) the testimony was reliable because the witnesses were able to see the jury and the defendant, they were sworn by the clerk of court, the jury and the defendant were able to observe the witnesses testifying, and they were subject to cross-examination. On habeas review, the 11th Circuit concluded that Florida Supreme Court’s decision was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. 

c) United States. v. McDonald, 55 M.J. 173 (C.A.A.F. 2001). Shortly before the presentencing portion of the court-martial, the government’s only witness was notified of a unit deployment to the Middle East. He was at Fort Stewart, some distance from the trial location and was scheduled to report to the terminal at midnight that night for a departure at 0600 hours the next morning. Over defense objection, the military judge allowed the witness to testify by telephone. On appeal, the issue was whether the Sixth Amendment’s Confrontation Clause applies to the presentencing portion of a court-martial. Agreeing with the Navy-Marine Corps Court of Criminal Appeals, the CAAF held that the Confrontation Clause does not apply to non-capital presentencing proceedings. However, the Due Process Clause of the Fifth Amendment requires that the evidence introduced in sentencing meet minimum standards of reliability. The Court pointed out that while the safeguards in the rules of evidence applied to the prosecution’s sentencing evidence, the language of RCM 1001(e)(2)(D) allowed relaxation of the evidence rules and did not specifically prohibit telephonic testimony. The CAAF also emphasized that this was an unusual situation causing the military judge to “craft a creative solution,” lest the testimony be temporarily lost.

d) United States v. Shabazz, 52 M.J. 585 (N-M. Ct. Crim. App. 1999). The military judge allowed a government witness to testify via video teleconference (VTC).  The trial was in Japan; the witness testified from California. The Navy-Marine Corps Court found a violation of the right to confrontation because the trial judge did not do enough to control the remote location.

e) United States v. Gigante, 166 F.3d 75 (2d Cir. 1999). The U.S. government asserted that Gigante was the boss of the Genovese crime family and supervised its criminal activity. Gigante was convicted of racketeering, criminal conspiracy under the RICO statute, conspiracy to commit murder, and a labor payoff conspiracy. The government proved its case with six former members of the Mafia, including Peter Savino. Savino was allowed to testify via closed circuit television because he was in the Federal Witness Protection Program and was in the final stages of an inoperable, fatal cancer. The Court held the trial judge did not violate Gigante's right to confront Savino. See also Minnesota v. Sewell, 595 N.W.2d 207 (Minn. App. 1999).

9. Testimony in disguise.  Romero v. Texas, 136 S.W.3d 680 (Tex. Ct. App. 2004).  A state’s witness testified wearing dark sunglasses, a baseball cap pulled low over his eyes, and a jacket with an upturned collar, leaving visible only his ears.  The trial court made no finding of necessity to justify the witness’s appearance.  The court held that the defendant’s right to confrontation was violated.

C. Right To Be Present at Trial

1. General Rule. The accused has a right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-6 (1934).

2. Disruptive Accused.

a) In Illinois v. Allen, 397 U.S. 337 (1970), the Court held that a disruptive defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can be reclaimed if the defendant is willing to conduct himself consistently with the decorum and respect inherent in judicial proceedings.

b) RCM 804. A military judge faced with a disorderly and disruptive accused has three constitutionally-permissible responses:

(1) Bind and gag the accused as a last resort, thereby keeping him present;

(2) Cite the accused for criminal contempt;

(3) Remove the accused from the courtroom until he promises to conduct himself properly.

3. Intentionally absent accused. Trial may continue in the absence of the accused when the accused voluntarily absents himself from trial. RCM 804(b) and United States v McCollum, 56 M.J. 837 (A.F. Ct. Crim. App. 2002), aff’d, 58 M.J. 323, (2003) (accused voluntarily absented himself so that child-victim could testify in the courtroom).

D. Comment on Exercising Sixth Amendment Rights

1. United States v. Kirt, 52 M.J. 699 (N-M. Ct. Crim. App. 2000). The accused testified at trial and was asked during cross-examination, “Do you admit here today that you are the only witness in this court who has heard the testimony of every other witness?” On appeal, the accused argued that this question improperly invited the members to infer guilt from the appellant’s exercise of his constitutional right to testify and confront the witnesses against him. The Court held that the question did not constitute error, but if it did, it was waived and did not constitute plain error.

2. Portuondo v. Agard, 529 U.S. 61 (2000). In summation, the prosecutor commented that the defendant had the benefit of getting to listen to all other witnesses before testifying, giving the defendant a “big advantage.” The defendant argued that the prosecutor’s comments on his presence and ability to fabricate unlawfully burdened his Sixth Amendment right to be present at trial and to be confronted with witnesses against him and his Fifth and Sixth Amendment right to testify on his own behalf. The Court rejected the defendant’s arguments distinguishing comments that suggest exercise of a right is evidence of guilt and comments that concern credibility as a witness.

IV. Literal Face-to-Face Confrontation: The Admissibility of Out-of-Court Statements

A. Introduction

1. The Crawford Rule: Under Crawford v. Washington, 541 U.S. 36 (2004) “testimonial” statements are admissible only if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Crawford overturned the Ohio v. Roberts, 448 U.S. 56 (1980) decision, under which judges determined the substantive reliability of out-of-court statements. Crawford returned to the historical roots of the Confrontation Clause, which 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, 541 U.S. at 61.

2. What is Testimonial? The Crawford Court declined to provide a comprehensive definition of “testimonial.”  The definition has been the subject of thousands of judicial decisions since the Court decided Crawford, and is discussed in Part IV.B., below.

3. Witness Present at Trial. “[W]hen the declarant appears for cross-examination at trial the Confrontation Clause places no constraints at all on the use of his prior testimonial statements….The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford, 541 U.S. at 59.

4. Hearsay and the Confrontation Clause. 

a) It is important to remember that issues regarding evidentiary hearsay rules and issues regarding Confrontation Clause are separate and require a separate analysis. “Although the hearsay rules and the Confrontation Clause are generally designed to protect similar values, they do not completely overlap. Thus, a statement properly admitted under a hearsay exception may violate confrontational rights. Similarly, a violation of the hearsay rules may not infringe upon the Sixth Amendment.” United States v. Russell, 66 M.J. 597, 602 (A. Ct. Crim. App. 2008) (internal quotations omitted).  

b) Application of the Confrontation Clause to Non-Hearsay. “The Clause…does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59.

5. Problem-solving. A Confrontation Clause analysis chart is provided at Part VI., below.

B. What Statements are “Testimonial”?

1. U.S. Supreme Court Cases.

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

(1) 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

(a) “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…”

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

(c) “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.”

(2) 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 see, Davis 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) and United States v. Squire, 72 M.J. 285 (C.A.A.F. 2013) (statements by child to medical providers where the primary purpose was medical treatment).      

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

(1) 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.

(2) “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.”

c) Michigan v. Bryant, 562 U.S. 344 (2011) (The Emergency Exception Doctrine)

(1) 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 granted certiorari. 

(2) 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.

(3) 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.

(4) 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. 

(6) 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.  

(7) 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. 

d) Ohio v. Clark, 576 U.S. ____ (2015).

(1) Facts: A preschool teacher (who was a “mandatory reporter” to law enforcement under Ohio law) became suspicious of several injuries she observed on a three-year-old child, L.P. The teacher brought the injuries to the attention of a lead teacher at the school, asked the child about the injuries. The child told the teachers that the accused had inflicted the injuries.

(2) Procedural History: The trial judge conducted a hearing pursuant to Ohio law, and determined that the child was not competent to testify. The statements were admitted as residual hearsay under Ohio Rule of Evidence 807, over defense objection. On appeal, the Ohio Appellate and Supreme Courts both found the admission of L.P.’s statements to the teachers to violate the Confrontation Clause. The Supreme Court reversed and remanded.

(3) Issue: Whether statements made by young children to “mandatory reporters” are testimonial hearsay under Crawford.

(4) Holding: No. “Because neither the child nor his teachers had the primary purpose  of  assisting  in  Clark’s  prosecution, the child’s statements  do  not  implicate  the  Confrontation Clause and therefore were admissible at trial.” Clark, slip op. at 1.

(5) Analysis: Writing for the majority, Justice Alito applies the Court’s prior analysis in Hammon, Davis, and Bryant. In particular, Justice Alito noted factors such as the lack of investigative purpose on the part of the listeners and declarant; the informality of the conversation; the fact that the listeners were teachers, not police; the potential that the listeners were responding to an ongoing emergent situation involving child abuse; and the very young age of the declarant.  

e) Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

(1) 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. 

(2) 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.

(3) 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.

(4) 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.

(5) Analysis.

(a) 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))).

(b) In addition to being “affidavits”, the Court found that the certificates 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. 

(6) 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.

f) Briscoe v. Virginia, 559 U.S. 32 (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. 305 (2009).

g) Bullcoming v. New Mexico, 564 U.S. 647 (2011)

(1) 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.

(2) 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. 

(3) Melendez-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.

(4) 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 did not sign the certification or perform or observe the test?

(5) Holding:   No.  Surrogate testimony does not satisfy the 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.

(6) 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. 

(a) 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.”

(b) Justice Sotomayor writes a concurrence that provides food for thought.  While Blazier II’s general holding stands, she suggests 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 data is still your “key to freedom” where non-declarant experts are concerned in this area of the law.   

h) Williams v. Illinois, 567 U.S. 50 (2012)

(1) 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.

(2) Facts:  DNA 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. 

(3) 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.

(4) 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). 

(5) Discussion:  The Justices dissent greatly in not only the holding but even the reasoning within the plurality opinion.  This case follows a 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 Exception/Primary Purposes cases like Hammon, Davis and Michigan v. Bryant. 

(6) 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. 

2. Military Cases

a) 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 also, United States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007); United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007).

b) Affidavits. United 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 nontestimonial 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.

c) Statements made to a Sexual Assault Medical Forensic Examiner (SAMFE) or 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.  But see United States v. Squire, 72 M.J. 285, 289 (C.A.A.F. 2013) (Statements of sexual abuse made by child to a doctor, who is a reporter of abuse, do not alone establish that doctor was acting in a law enforcement capacity.  Statements to doctor were not testimomial in nature.).

d) Alcohol, Urine and Drug Analysis Results

(1) Random Urinalysis. United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006); overruled by 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.” 

(2) 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; see also Sweeney, which finds that the analysis of whether a statement is testimonial is done at the time they are made, not when a sample is provided.

(3) 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 case law 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.

(4) Physical Evidence Sent to Lab Post-Arrest. United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 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.  

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

(a) 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.

(b) 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.

(c) 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, (a) was the Confrontation Clause nevertheless satisfied by testimony from Dr. Papa?; or (b) 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 MRE 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.

(6) Urinalysis. United States v. Blazier ("Blazier II"), 69 M.J. 218 (C.A.A.F. 2010).

(a) 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.”

(b) Held: “[W]here testimonial hearsay is admitted, the Confrontation Clause is satisfied only if the declarant of that hearsay is either (1) subject to cross-examination at trial, or (2) unavailable and subject to previous cross examination. We further hold that an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and non-hearsay machine-generated printouts of machine-generated data…, and/or (2) 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.”

(c) The court reversed the Air Force court’s decision and remanded the case for the lower court to conduct a harmlessness analysis.

(7) United States v. Dollar, 69 M.J. 411 (C.A.A.F. 2011)

(a) 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.

(b) Facts:  The Appellant tested positive for cocaine through random urinalysis.  At trial, over defense objection, the government pre-admitted, 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. 

(c) Issue:  Whether 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.

(d) 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.

(e) 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 United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), which drew a distinction between random urinalysis reports and those generated for law enforcement purposes.

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

(a) 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.

(b) 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. 

(c) 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?

(d) Holding:  The case was reversed and remanded for reconsideration in light of Blazier II.

(e) 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.

(9) United States v. Lusk, 70 M.J. 278 (C.A.A.F. 2011)

(a) 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.

(b) 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.

(c) 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?

(d) 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.

(e) 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 by surrogate experts and requiring limiting instructions even where defense counsel have used the evidence themselves during cross-examination.

(10) United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011)

(a) 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.

(b) 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). 

(c) 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?

(d) Holding:  Admitting the cover memorandum was error (consistent with previous decisions); however, admitting the specimen custody document (DD Form 2426) 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 whether the error was harmless beyond a reasonable doubt.

(e) Discussion:  The newest development in this line of cases is the specimen custody document.  The court found it contained testimonial hearsay (notations) 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. 647 (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. 

(f) In taking on the second issue, the court again approached 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.”  Sweeney 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, such formal 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 the Ohio v. Roberts reliability test, is the controlling law for Confrontation.

(g) 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.  For a follow up on this discussion, see United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013) below.

(h) Note:  Practitioners should not read Sweeney as necessitating the testing official to prove every urinalysis case nor that nothing on the specimen custody document is every admissible (as we see one year later in Tearman); however, it should be read as requiring greater scrutiny in what documents and when they were created.  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. 

(11) United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013)

(a) Procedural History:  Appellant stands convicted of one specification of Article 112a, UCMJ for wrongfully using marijuana; this case is the result of a positive UA from a random urinalysis.  NMCCA affirmed and CAAF granted review.

(b) Facts:  At trial, the government admitted the certified results and official testing results contained on the DD 2624 (specimen custody document).  They admitted this both as a business record and through surrogate witness testimony.  Further, the government admitted, as business records, the chain-of-custody documents and internal review worksheets, used by the lab to document procedures of handling and processing during testing. 

(c) Issues:  Whether the chain-of-custody and internal review worksheets are testimonial and violate the confrontation clause and whether the results and certification on the DD Form 2624 violated the accused’s confrontation rights and if so, was the admission harmless beyond a reasonable doubt.

(d) Holding:  The chain-of-custody and internal review worksheets are non-testimonial and it was not error to admit them as business records.  The blocks on the DD Form 2624 that contain the certification and the testing results are testimonial and it was error to admit them; however, that error was harmless in light of the opinion provided by the surrogate expert and other evidence in the case.

(e) Discussion/Notes:  Judge Baker’s concurrence provides a clear explanation of the case, where the majority often confuses the issues and the law prior to this case.  Further, Judge Baker points out the many elephants in the room with this decision. There are many unanswered questions.  How can Tearman exist in the same world with Sweeney? Notations about procedures in the lab made on the specimen custody document are testimonial there but notations on the internal worksheet and chain of custody are non-testimonial here-notations in both cases were made prior to any request by the command or government for a drug testing report as they had not been informed of a positive result in either case when those notations were made.  Further, Magyari is discussed in Tearman where its logic was put to rest in Sweeney last term. The court in Sweeney recognized that the analysis of statements is at the time they are made, not when a sample is provided. 

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

(1) 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 used prosecutorially nor was there any government involvement.

(2) Statements to co-workers.  United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 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. Hendricks, 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.

f) Personnel Records.  United States v. Rankin, 64 M.J. 348 (C.A.A.F. 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.

C. What Constitutes “Unavailability”?

1. A witness who is present in the witness box and responds (provides responsive answers) to questions is available for Confrontation Clause purposes, regardless of the content of the witness’s answers. A witness will usually be considered “unavailable” for Confrontation Clause purposes if the witness is unavailable under MRE 804(a), except regarding lack of memory (MRE 804(a)(3)). See, e.g., United States v. Owens, 484 U.S. 554 (1988).

2. United States v. Lyons, 36 M.J. 183 (C.M.A. 1992). Appellant convicted of raping the deaf, mute, mentally retarded, 17-year-old daughter of another service member. The victim appeared at trial, but her responses during her testimony were “largely substantively unintelligible” because of her infirmities. In light of her inability, the government moved to admit a videotaped re-enactment by the victim of the crime. The military judge admitted the videotape as residual hearsay over defense objection. Appellant asserted that his right to confrontation was denied because the daughter’s disabilities prevented him from effectively cross-examining her. The lead opinion assumed that the victim was unavailable and decided the case on the basis of the admission of a videotaped re-enactment. Chief Judge Sullivan, Judges Cox and Crawford did not perceive a confrontation clause issue because the victim testified. See also, United States v. Russell, 66 M.J. 597, 601-602 (Army Ct. Crim. App. 2008) (implicitly accepting trial judge’s ruling that a child victim who was “too young and too frightened to be subject to a thorough direct or cross-examination” was unavailable).

3. The Government must first make a “good faith” effort to produce a witness in order for that witness to be “unavailable” for Sixth Amendment purposes. United States v. Cabrera-Frattini, 65 M.J. 241, 245-246 (C.A.A.F. 2007). See also, Ohio v. Roberts, 448 U.S. 56 (1980), 74-75 (“The law does not require the doing of a futile act….[b]ut if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.”); United States v. Crockett, 21 M.J. 423 (C.M.A. 1986) (good faith does not extend to changing venue from Germany to Florida).

D. Nontestimonial Statements and the Confrontation Clause

1. Does the Confrontation Clause Apply to Nontestimonial Statements?

a) Generally

(1) It is uncertain whether military courts are required to apply a Confrontation Clause analysis to nontestimonial statements. Unless and until the CAAF clarifies the law in this regard, practitioners should apply the Ohio v. Roberts test to nontestimonial statements.

(2) The Crawford Court did not decide whether the Confrontation Clause was implicated by nontestimonial statements, stating “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Crawford, 541 U.S. at 68. [Note: Military courts are not necessarily bound by this Supreme Court precedent. See, H.F. “Sparky” Gierke, The Use of Article III Case Law in Military Jurisprudence, Army Lawyer, Aug. 2005.]

(3) It seems likely that military courts will align their holdings with the Supreme Court regarding nontestimonial statements. As a logical proposition, it does not make sense to apply the Confrontation Clause to nontestimonial statements given the Crawford Court’s explanation that the phrase “witnesses” in the Sixth Amendment only describes those who “bear testimony.” In other words, a person is only a witness if he makes a “testimonial” statement. 

b) Supreme Court Cases

(1) Whorton v. Bockting, 549 U.S. 406 (2007). “Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability.  Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.” 

(2) Davis v. Washington, 547 U.S. 813, 823-824 (2006). “We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies.  The answer to the first question was suggested in Crawford, even if not explicitly held:  “The text of the Confrontation Clause reflects this focus [on testimonial hearsay].  It applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’  ‘Testimony,’ in turn, is typically ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.”  A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its ‘core,’ but its perimeter.” 

c) Military Cases

(1) United States v. Rankin, 64 M.J. 348 (2007). “The Ohio v. Roberts requirement for particularized guarantees of trustworthiness continues to govern confrontation analysis for nontestimonial statements.” (Citing United States v. Scheurer, 62 M.J. 100, 106 (2005)). But see, United States v. Czachorowski, 66 M.J. 432 at n.3 (C.A.A.F. 2008) (citing, in dicta, Whorton v. Bockting for the proposition that “…the Confrontation Clause has no application to [nontestimonial] statements and therefore permits their admission even if they lack indicia of reliability….”);  United States v. Cucuzzella, 66 M.J. 57 (C.A.A.F. 2008) (the Confrontation Clause is not implicated by nontestimonial statements) (Stucky, J., concurring); United States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007) (Holding that admission of a nontestimonial statement did not violate the accused’s confrontation rights while neglecting, without explanation, to apply Ohio v. Roberts to the statement. One possible explanation for this decision is that the statement at issue qualified as a “firmly rooted” hearsay exception under Roberts, and the Confrontation Clause and evidentiary analyses are identical for such statements).

(2) United States v. Russell, 66 M.J. 597, 604 (Army Ct. Crim. App. 2008). Held that the admission of nontestimonial statements do not violate a military accused’s confrontation rights. However, the court applied a constitutional standard for determining prejudice because of “the continuing uncertainty regarding the application of Ohio v. Roberts.”  See also United States v. Crudup, 65 M.J. 907, 909 (Army Ct. Crim. App. 2008); United States v. Diamond, 65 M.J. 876, 883 (Army Ct. Crim. App. 2007) (Military judge did not err when he admitted the statements of co-conspirator, who invoked her Fifth Amendment right not to testify and possibly incriminate herself, that included statements in furtherance of the uncharged misconduct of obstructing justice.  Applying the Rankin factors, the statements were not testimonial and not given with an eye toward prosecution).

2. Application of Ohio v. Roberts to Nontestimonial Statements

a) Under Roberts, a nontestimonial hearsay statement can be admitted if the proponent can show that it possessed adequate indicia of reliability. Indicia of reliability can be shown in one of two ways.  First, if the statement fits within a firmly rooted hearsay exception, it satisfies the Confrontation Clause. If it doesn’t fit within a firmly rooted hearsay exception, it can nevertheless satisfy the Confrontation Clause and be admitted if it possessed particularized guarantees of trustworthiness.

b) Particularized guarantees of trustworthiness could be shown using a nonexclusive list of factors such as mental state or motive of the declarant, consistent repetition, or use of inappropriate terminology. See, e.g., Idaho v. Wright, 497 U.S. 805, 821 (1990) (providing factors for use in analyzing the reliability of hearsay statements made by child witnesses in child sexual abuse cases); United States v. Ureta, 44 M.J. 290, 296  (C.A.A.F. 1996) (giving examples of factors to consider when looking at the circumstances surrounding the making of a hearsay statement when the declarant is unavailable). 

c) When analyzing particularized guarantees of trustworthiness, the proponent is limited to considering only the circumstances surrounding the making of the statement, i.e. extrinsic evidence was not permitted. Idaho v. Wright, 497 U.S. 805, 819-24 (1990).  This can be confusing, since this limit on extrinsic evidence only applied to the Confrontation Clause analysis.  Once a statement meets the Confrontation Clause hurdle, extrinsic evidence is perfectly acceptable for analysis under the hearsay rules.  Another source of confusion in military caselaw is the fact that the CAAF has stretched the meaning of circumstances surrounding the making of the statement to include statements made close in time, yet before the actual making of a particular statement in at least one case.  See United States v. Ureta, 44 M.J. 290 (1996).

d) Idaho v. Wright, 497 U.S. 805, 821 (1990). “Because evidence possessing ‘particularized guarantees of trustworthiness’ must be at least as reliable as evidence admitted under a firmly rooted hearsay exception, . . . we think that evidence admitted under the former requirement must similarly be so trustworthy that adversarial testing would add little to its reliability.”

e) The Confrontation Clause analysis chart at Part VI, below, provides a list of hearsay exceptions that are generally considered to be “firmly rooted”.

V. Appellate Review

A. Standard of Review

1. Appellate courts review a military judge’s decision to admit or exclude evidence for an abuse of discretion. United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009).

2. When an error is not objected to at trial, appellate courts apply a plain error analysis. If the accused meets his burden to show plain error, “the burden shifts to the Government to prove that any constitutional error was harmless beyond a reasonable doubt.” United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006).

3. Whether statements are testimonial under Crawford is a question of law that is reviewed de novo. United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009).

4. Availability of witnesses and the “good faith” of government efforts to procure witnesses is reviewed for an abuse of discretion. United States v. Cabrera-Frattini, 65 M.J. 241, 245 (C.A.A.F. 2007).

5. Harmlessness analysis

a) Any evidence admitted in violation of the Confrontation Clause is reversible unless it is harmless beyond a reasonable doubt. United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009).

b) “In assessing harmlessness in the constitutional context…[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009) (citing Chapman v. California, 386 U.S. 18 (1967)).

c) The C.A.A.F. “frequently looks to the factors set forth in Delaware v. Van Arsdall, 475 U.S. 673 (1986), to assess whether an error is harmless beyond a reasonable doubt.” United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009).

d) The Van Arsdall factors include: “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and…the overall strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)

B. Retroactive Effect of Crawford v. Washington.

1. Crawford is a “new rule of law” for the conduct of criminal prosecutions and must be applied retroactively for all cases that are still pending on direct review. United States v. Cabrera-Frattini, 65 M.J. 241, 245 (C.A.A.F. 2007).

2. Whorton v. Bockting, 549 U.S. 406 (2007). 

a) Issue: Whether the decision in Crawford is retroactive to cases already final on direct review (in other words, can Crawford be used to collaterally attack cases already final after direct review). 

b) Held: Crawford is not retroactive to cases already final on direct review because its impact on criminal procedure is equivocal.  Crawford results in the admission of fewer testimonial statements, while exempting nontestimonial statements from confrontation analysis entirely.  Thus, it is not clear that in the absence of Crawford the likelihood of an accurate conviction was seriously diminished under the Roberts analysis.  Since the Crawford rule did not significantly alter the fundamental fairness of criminal proceedings, it is not a watershed rule requiring retroactive effect on cases already final on direct review. 

 

 

APPENDIX A

Confrontation Clause Analysis Chart

 

 

 

 

 

 

APPENDIX B

Confrontation – Nontestimonial Statements CHART