U.S. v. Israel, 60 M.J. 485

First Principles: Constitutional Matters: Confrontation

1. a defendant’s right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes a defendant from exploring an entire relevant area of cross-examination

Core Criminal Law Subjects: Evidence: Relevance

1. in those cases where the government relies on the general reliability of testing procedures, evidence related to the testing process that is closely related in time and subject matter to the test at issue may be relevant and admissible to attack the general presumption of regularity in the testing process

Core Criminal Law Subjects: Witnesses: Confrontation

1. a defendant’s right under the Sixth Amendment to cross-examine witnesses is violated if the military judge precludes a defendant from exploring an entire relevant area of cross-examination
2. evidence of the rates of untestable samples produced by a drug testing program during the months before and after the accused’s urinalysis was tested indicated some type of irregularity in the collection or shipping process; these irregularities could have been used to attack the testimony of the drug testing program manager that the standard procedures always were followed and those procedures were reliable; because this evidence of irregularities in the collection process was closely related in time to the collection of the accused’s sample, the military judge abused his discretion in excluding this evidence from use by the defense on cross-examination
3. evidence that a standard calibration error occurred more than once in the same month in which the accused’s urine sample was collected and tested raised questions about the reliability of the machines used in the testing process and the reliability of the results of the test; these questions could have been used to attack the testimony of the government lab expert whose generalized testimony relied upon the “gold standard in drug testing” and a presumption of regularity in the testing process; because this evidence related to the testing process that was closely related in time and subject matter to the test at issue, the military judged abused his discretion in excluding it where it may have been relevant and admissible to attack the general presumption of regularity in the testing process
4. while a period of nine months between a reported laboratory error of a false-positive test result and the testing process at issue may well be too remote in other cases, under the circumstances of this case it is not; the reliability of the testing process will always be relevant in drug test cases to establish the admissibility of the test results; where the government goes well beyond establishing reliability and raises the bar by characterizing the testing process as a “Mercedes” and that the process is the “gold standard” in drug testing, it opens the door to a broader time frame during which laboratory errors may be relevant to challenge the testing process; for this reason, the military judge abused his discretion in excluding this report of a false-positive test result
5. the military judge did not abuse his discretion in precluding cross-examination of the government lab expert about an annotation error that occurred three years prior to the accused’s urine test, where there was no annotation error with respect to the accused’s sample and the earlier error was too far removed in both subject matter and time to be relevant to the reliability of the accused’s test results
6. the military judge did not abuse his discretion in precluding cross-examination of the government lab expert about a lab employee who, a year and a half prior to the accused’s urine test, made a testing error and then deliberately falsified documents to cover up that error, where the incident was not related to the accused’s test other than it took place at the same laboratory, where the offending employee was no longer employed at the laboratory when the accused’s sample was tested, and where the incident was too remote in time and subject matter to be relevant to challenge the expert’s conclusion that the urinalysis test results were valid
7. the military judge did not abuse his discretion in precluding cross-examination of the government lab expert about incidents in which individuals were not properly logged into or out of the lab, where the evidence of the minor errors in the log book did not concern the area where the urine samples were tested or stored and where the evidence was neither probative of nor relevant to the reliability of the testing process

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. trial rulings limiting cross-examination are reviewed for abuse of discretion
2. where alleged errors affect an accused’s constitutional right to confront the witnesses against him, if this Court finds that the military judge abused his discretion, it will reverse unless the error was harmless beyond a reasonable doubt
3. where an error constitutes a violation of the defendant’s constitutional rights, this Court will reverse unless the error was harmless beyond a reasonable doubt

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, the military judge limited the accused’s cross-examination in a manner that precluded him from exploring the possibility that the urinalysis testing process suffered from irregularities; presenting the possibility that the positive result from the urinalysis test was unreliable was the accused’s best defense to the government’s “gold standard” theory of the case; by precluding any meaningful inquiry into those relevant irregularities in the process, the accused was deprived of the opportunity to confront the “gold standard” theory properly; it is impossible to say that the members would not have taken evidence of irregularities in the testing process and possible errors in the results into consideration; having found that evidence of rates of untestable samples, a calibration error, and a false-positive test result were erroneously excluded, this Court concludes that the error was not harmless beyond a reasonable doubt

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. trial rulings limiting cross-examination are reviewed for abuse of discretion
2. where alleged errors affect an accused’s constitutional right to confront the witnesses against him, if this Court finds that the military judge abused his discretion, it will reverse unless the error was harmless beyond a reasonable doubt
3. where an error constitutes a violation of the defendant’s constitutional rights, this Court will reverse unless the error was harmless beyond a reasonable doubt