U.S. v. Harcrow, 66 M.J. 154

First Principles: Constitutional Matters: Generally

1. in addressing waiver of constitutional rights, the Supreme Court long ago emphasized that there is a presumption against the waiver of constitutional rights, and for a waiver to be effective, it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege; yet the Supreme Court has also acknowledged that counsel may, under some conditions, where the circumstances are not exceptional, preclude the accused from asserting constitutional claims; that is to say, in certain circumstances, defense counsel may waive constitutional rights on behalf of their clients

First Principles: Constitutional Matters: Confrontation

1. the Confrontation Clause of the Sixth Amendment states that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; under Crawford v. Washington, the Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination; Crawford set forth various formulations of the core class of testimonial statements without articulating a comprehensive definition of “testimonial;” these include: (1) ex parte in-court testimony; (2) extrajudicial statements contained in formalized trial materials; and (3) 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; these formulations, however, do not constitute an exhaustive list of testimonial statements, and serve as a useful baseline to begin analysis of the testimonial quality of other statements in question

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Corroboration

1. admissions can only be used as evidence if they are independently corroborated; under MRE 304(g), an admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth; the standard for corroboration is very low; corroborating evidence must raise only an inference of truth as to the essential facts admitted; this inference may be drawn from a quantum of corroborating evidence that has been described as very slight

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. Crawford v. Washington changed the analytical framework set out in Ohio v. Roberts for determining the admissibility of testimonial hearsay statements; Crawford transformed the inquiry from one that was grounded in the indicia of reliability to one hinging on whether the out-of-court statement comes within the scope of the Sixth Amendment because it bears testimony against an accused; the lynchpin of the Crawford decision is its distinction between testimonial and nontestimonial hearsay; in Whorton v. Bockting, the Supreme Court held that Crawford announced a new rule of criminal procedure, which is retroactive on direct appeal
2. the Confrontation Clause of the Sixth Amendment states that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; under Crawford v. Washington, the Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination; Crawford set forth various formulations of the core class of testimonial statements without articulating a comprehensive definition of “testimonial;” these include: (1) ex parte in-court testimony; (2) extrajudicial statements contained in formalized trial materials; and (3) 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; these formulations, however, do not constitute an exhaustive list of testimonial statements, and serve as a useful baseline to begin analysis of the testimonial quality of other statements in question
3. several nonexclusive factors have been identified that can be considered when distinguishing between testimonial and nontestimonial hearsay statements; these factors include: (1) whether the statement was elicited by or made in response to law enforcement or prosecutorial inquiry; (2) whether the statement involved more than a routine and objective cataloging of unambiguous factual matters; and (3) whether the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial; the goal is an objective look at the totality of the circumstances surrounding the statement to determine if the statement was made or elicited to preserve past facts for a criminal trial
4. in this case, state forensic laboratory reports documenting the presence of cocaine and heroin on drug paraphernalia seized from the accused’s residence constituted testimonial statements which were subject to exclusion under the Confrontation Clause of the Sixth Amendment as inadmissible hearsay, where the laboratory analysis was conducted at the behest of the sheriff’s office after arresting the accused for suspected drug use, the laboratory reports pertained to items seized from the accused’s home at the time of the arrest, and the reports expressly identified the accused as a “suspect”
5. lab results or other types of routine records may become testimonial where an accused is already under investigation, and where the testing is initiated by the prosecution to discover incriminating evidence

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where a case involves constitutional error, the question is whether the government has shown that the error was harmless beyond a reasonable doubt
2. the error in admitting inadmissible hearsay in the form of laboratory reports documenting the presence of cocaine and heroin on drug paraphernalia seized from the accused’s residence in violation of the Confrontation Clause was plain and obvious, but it was harmless beyond a reasonable doubt and therefore did not violate a substantial right, where the accused admitted that a jeweler’s bag in his home contained cocaine and a hypodermic syringe contained heroin, and his admissions were corroborated by the testimony of the arresting officers; moreover, the accused did not demonstrate what, if anything, he would have done at trial if he had been given the opportunity to confront the laboratory personnel about their reports

Trial Stages: Appeals: Preservation of Error / Plain Error

1. the first limitation on appellate authority under Fed. R. Crim. P. 52(b) (the federal plain error rule), on which MRE 103(d) (the military plain error rule) is partially based, is that there indeed be an error; deviation from a legal rule is error unless the rule has been waived; waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; whether a particular right is waivable, whether appellant must participate personally in the waiver, whether certain procedures are required for waiver, and whether appellant’s choice must be particularly informed or voluntary, all depend on the right at stake; mere forfeiture, as opposed to waiver, does not extinguish an error under Rule 52(b)
2. defense counsel’s statements of “no objection” in response to the prosecution’s proffer of two laboratory reports for admission into evidence were appropriately treated as forfeitures, which required further analysis under the plain error rule, rather than a waiver of the accused’s Sixth Amendment right to confrontation, considering that Crawford v. Washington, which changed the framework for the admissibility of testimonial hearsay statements, was not decided until after this court-martial concluded; Crawford opened the door for a colorable assertion of the right to confrontation where it was not previously available, and which under Whorton v. Bockting was now applicable on direct review; in this legal and factual context, defense counsel’s strategic decision not to challenge the admissibility of the reports could not be considered an intentional relinquishment or abandonment of appellant’s right to confront the laboratory personnel under Crawford
3. in order to prevail under a plain error analysis, appellant must demonstrate that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right
4. in determining whether an error is plain or obvious, the Supreme Court has stated that where the law at the time of trial was settled and clearly contrary to the law at the time of appeal -- it is enough that an error be plain at the time of appellate consideration; thus, in undertaking a plain error analysis, an appellate court will consider whether the error was obvious at the time of appeal, not whether it was obvious at the time of the court-martial
5. the error in admitting inadmissible hearsay in the form of laboratory reports documenting the presence of cocaine and heroin on drug paraphernalia seized from the accused’s residence in violation of the Confrontation Clause was plain and obvious, but it was harmless beyond a reasonable doubt and therefore did not violate a substantial right, where the accused admitted that a jeweler’s bag in his home contained cocaine and a hypodermic syringe contained heroin, and his admissions were corroborated by the testimony of the arresting officers; moreover, the accused did not demonstrate what, if anything, he would have done at trial if he had been given the opportunity to confront the laboratory personnel about their reports

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

1. considering whether the laboratory reports in this case constitute inadmissible hearsay under Crawford v. Washington is a question of law that an appellate court reviews de novo
2. in order to prevail under a plain error analysis, appellant must demonstrate that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right
3. where a case involves constitutional error, the question is whether the government has shown that the error was harmless beyond a reasonable doubt

Trial Stages: Appeals: Waiver

1. in addressing waiver of constitutional rights, the Supreme Court long ago emphasized that there is a presumption against the waiver of constitutional rights, and for a waiver to be effective, it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege; yet the Supreme Court has also acknowledged that counsel may, under some conditions, where the circumstances are not exceptional, preclude the accused from asserting constitutional claims; that is to say, in certain circumstances, defense counsel may waive constitutional rights on behalf of their clients