U.S. v. Madigan, 63 M.J. 118

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. if relevant evidence is destroyed, lost, or otherwise not subject to compulsory process and such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party
2. the military judge may exclude drug-test results if he finds there has been a substantial violation of regulations intended to assure reliability of the testing procedures

Core Criminal Law Subjects: Evidence: Suppression

1. deviating from a regulation or instruction which sets out procedures for collecting, transmitting, or testing urine samples does not render a sample inadmissible as a matter of law; however, such deviation may be considered along with all other factors in determining if the evidence lacks sufficient reliability to be considered by the finders of fact; the military judge may exclude drug-test results if he finds there has been a substantial violation of regulations intended to assure reliability of the testing procedures

Trial Stages: Pretrial: Discovery

1. RCM 703(f)(1) provides that each party is entitled to the production of evidence which is relevant and necessary; RCM 703(f)(2) provides that notwithstanding subsection (f)(1), a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process; however, if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party
2. the applicable regulations concerning the retention of drug testing samples confers a right on servicemembers to discover evidence; however, the regulations do not confer on servicemembers the right to any particular remedy for a deviation from those regulations, and there is considerable discretion for courts to fashion a remedy to address any deviation from the regulatory testing procedures
3. in the context of the destruction of evidence under a regulatory schedule that is not under challenge, the Government is not responsible for ensuring the availability of the evidence after the authorized destruction date in the absence of a timely request for access or retention; without such a request, the responsibility for the unavailability of the evidence after the authorized destruction date rests with the party that failed to make the request that could have prevented the destruction; such circumstances eliminate the need for analysis under RCM 703(f)(2) of whether the evidence in question is of such central importance to an issue that it is essential to a fair trial and whether there is no adequate substitute for such evidence
4. the premature destruction of a drug testing sample of the accused’s blood by a testing facility seven months after a positive drug test did not require suppression of the drug test evidence on the ground that it improperly denied the accused the opportunity to retest the evidence, where the sample would have been destroyed after two years pursuant to the facility’s regulation, but there was no record of the defense requesting access to or retesting of the sample during the entire two-year period; thus, the premature destruction, which occurred after the defense was notified of the drug test results and disciplinary proceedings, did not impede defense access under the regulation