U.S. v. Green, 55 M.J. 76

Core Criminal Law Subjects: Crimes: Art. 112a -- Wrongful Use, Possession, etc, of Controlled Substances Pre-2019 offenses

1. the "wrongful" element of an offense under Article 112a, UCMJ, represents the considered judgment of Congress as to the nature of the offense. Because that element lacks "bright line" clarity, the challenge for the courts is in interpreting it in a manner that appropriately balances disciplinary considerations, the rights of servicemembers, and evolving legal evidence
2. where scientific evidence provides the sole basis to prove the wrongful use of a controlled substance, expert testimony interpreting the tests or some other lawful substitute in the record is required to provide a rational basis upon which the factfinder may draw an inference that the controlled substance was wrongfully used
3. the military judge may determine in appropriate circumstances that scientific test results, as explained by an expert witness, permit consideration of the permissive inference that presence of a controlled substance demonstrates knowledge and wrongful use
4. in the context of the permissive inference that presence of a controlled substance demonstrates knowledge and wrongful use, the military judge has discretion to determine the issue of admissibility by considering whether: (1) the metabolite is naturally produced by the body or any substance other than the drug in question; (2) the permissive inference of knowing use is appropriate in light of the cutoff level, the reported concentration, and other appropriate factors; and (3) the testing methodology is reliable in terms of detecting the presence and quantifying the concentration of the drug or metabolite in the sample. This three-part approach is not exclusive, and the military judge as gatekeeper may consider other factors, so long as they meet the applicable standards for determining the admissibility of scientific evidence
5. given the unique aspects of drug prosecutions in the armed forces and the serious consequences of a positive urinalysis, the military judge must ensure a careful and thorough Daubert-type analysis in such cases
6. a urinalysis properly admitted under the standards applicable to scientific evidence, when accompanied by expert testimony providing the required expert interpretation of those test results, provides a legally sufficient basis upon which to draw the permissive inference of knowing, wrongful use, without testimony on the merits concerning physiological effects

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. military judge has broad discretion as the "gatekeeper" to determine whether the party offering expert testimony has established an adequate foundation with respect to reliability and relevance
2. the military judge may determine in appropriate circumstances that scientific test results, as explained by an expert witness, permit consideration of the permissive inference that presence of a controlled substance demonstrates knowledge and wrongful use
3. if a party fails to challenge the admissibility of expert testimony, the issue may be treated as waived, absent plain error

Core Criminal Law Subjects: Evidence: Judicial Notice

1. if expert testimony has an established scientific, technical, legal, judicial, or evidentiary foundation regarding reliability and relevance, it may be appropriate to take judicial notice under Mil. R. Evid. 201 without further litigation

Core Criminal Law Subjects: Evidence: Scientific Evidence

1. given the unique aspects of drug prosecutions in the armed forces and the serious consequences of a positive urinalysis, the military judge must ensure a careful and thorough Daubert-type analysis in such cases
2. if expert testimony has an established scientific, technical, legal, judicial, or evidentiary foundation regarding reliability and relevance, it may be appropriate to take judicial notice under Mil. R. Evid. 201 without further litigation

Core Criminal Law Subjects: Evidence: Waiver

1. if a party fails to challenge the admissibility of expert testimony, the issue may be treated as waived, absent plain error

Core Criminal Law Subjects: Witnesses: Experts

1. military judge has broad discretion as the "gatekeeper" to determine whether the party offering expert testimony has established an adequate foundation with respect to reliability and relevance
2. the military judge may determine in appropriate circumstances that scientific test results, as explained by an expert witness, permit consideration of the permissive inference that presence of a controlled substance demonstrates knowledge and wrongful use
3. if a party fails to challenge the admissibility of expert testimony, the issue may be treated as waived, absent plain error