U.S. v. Blazier, 69 M.J. 218

First Principles: Constitutional Matters: Confrontation

1. the signed, certified cover memoranda on a drug testing report - prepared at the request of the government for use at trial, and which summarized the entirety of the laboratory analyses in the manner that most directly bore witness against appellant - are testimonial under current Supreme Court precedent
2. the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; accordingly, no testimonial hearsay may be admitted against a criminal defendant unless (1) the witness is unavailable, and (2) the witness was subject to prior cross-examination
3. where 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
4. an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay 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
5. the “witness” that the accused has the right to confront is the declarant; the right of confrontation is not satisfied by confrontation of a surrogate for the declarant; and “reliability” is no substitute for this right of confrontation; while “reliability” is the end, the right of confrontation is the means, and it is the means (rather than the end) that the Sixth Amendment insists upon; substitute means of ensuring reliability do not satisfy the Confrontation Clause, no matter how efficacious they might be; the right of confrontation is the right to confront and cross-examine the actual witness who made the testimonial statement
6. it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial; machine-generated data and printouts such as those in this case are distinguishable from human statements, as they involve so little intervention by humans in their generation as to leave no doubt they are wholly machine-generated for all practical purposes; because machine-generated printouts of machine-generated data are not hearsay, expert witnesses may rely on them, subject only to the rules of evidence generally, and MRE 702 and MRE 703 in particular
7. the fact that the government may, consistent with the rules of evidence and the Confrontation Clause, introduce machine-generated data and expert testimony relying on the work of others does not preclude an accused from seeking to call as witnesses those who operated the machines or performed the work being relied upon to test, among other things, the accuracy, validity, and reliability of those machines and tests; as the Compulsory Process Clause of the Sixth Amendment, Article 46, UCMJ, 10 USC § 846, and RCM 703(a) make clear, a defendant has the right to the compulsory process of witnesses who can provide relevant and necessary evidence in their defense; in other words, a live witness not required by the Confrontation Clause because the government admitted no testimonial hearsay may nonetheless be called by the defense and attendance compelled upon a showing of relevancy and necessity
8. neither the rules of evidence nor the Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay; an expert witness may review and rely upon inadmissible hearsay in forming independent conclusions, but he may not circumvent either the rules of evidence or the Sixth Amendment by repeating the substance of the hearsay
9. although the expert witness in this case may well have been able to proffer a proper expert opinion based on machine-generated data and calibration charts, his knowledge, education, and experience and his review of the drug testing reports alone, both the drug testing reports and the expert witness’s testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witness’s testimony conveying the statements contained in those cover memoranda - including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected - were inadmissible under both the Confrontation Clause and MRE 703, while the machine-generated printouts and data were not hearsay at all and could properly be admitted into evidence and serve as the basis for the expert witness’s conclusions
10. statements prepared in anticipation of litigation are not business records and, even if a document might otherwise be a business record, if it is testimonial hearsay, its admission violates the Confrontation Clause
11. for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 US 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; evidence admitted in violation of the Confrontation Clause of the Sixth Amendment is subject to that standard; in assessing harmlessness in the constitutional context, the question is not whether the evidence is legally sufficient to uphold a conviction without the erroneously admitted evidence; rather, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. lack of knowledge or unwarranted reliance on the work of others may make an expert opinion inadmissible: the military judge, in his capacity as a gatekeeper, must determine whether the opinion is based upon sufficient facts or data and is the product of reliable principles and methods reliably applied to the case

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay 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
2. a qualified expert witness may give testimony in the form of opinion if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case; with respect to the first requirement, if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted; however, such inadmissible facts or data shall not be disclosed to the members by the proponent of the opinion or inferences unless the military judge determines that their probative value in assisting the members to evaluate the expert’s opinion substantially outweighs their prejudicial effect
3. it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial; machine-generated data and printouts such as those in this case are distinguishable from human statements, as they involve so little intervention by humans in their generation as to leave no doubt they are wholly machine-generated for all practical purposes; because machine-generated printouts of machine-generated data are not hearsay, expert witnesses may rely on them, subject only to the rules of evidence generally, and MRE 702 and MRE 703 in particular
4. an expert witness may review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions; an expert witness need not necessarily have personally performed a forensic test in order to review and interpret the results and data of that test; that an expert did not personally perform the tests upon which his opinion is based is explorable on cross-examination, but that goes to the weight, rather than to the admissibility, of that expert’s opinion
5. lack of knowledge or unwarranted reliance on the work of others may make an expert opinion inadmissible: the military judge, in his capacity as a gatekeeper, must determine whether the opinion is based upon sufficient facts or data and is the product of reliable principles and methods reliably applied to the case
6. the fact that the government may, consistent with the rules of evidence and the Confrontation Clause, introduce machine-generated data and expert testimony relying on the work of others does not preclude an accused from seeking to call as witnesses those who operated the machines or performed the work being relied upon to test, among other things, the accuracy, validity, and reliability of those machines and tests; as the Compulsory Process Clause of the Sixth Amendment, Article 46, UCMJ, 10 USC § 846, and RCM 703(a) make clear, a defendant has the right to the compulsory process of witnesses who can provide relevant and necessary evidence in their defense; in other words, a live witness not required by the Confrontation Clause because the government admitted no testimonial hearsay may nonetheless be called by the defense and attendance compelled upon a showing of relevancy and necessity
7. neither the rules of evidence nor the Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay; an expert witness may review and rely upon inadmissible hearsay in forming independent conclusions, but he may not circumvent either the rules of evidence or the Sixth Amendment by repeating the substance of the hearsay
8. although the expert witness in this case may well have been able to proffer a proper expert opinion based on machine-generated data and calibration charts, his knowledge, education, and experience and his review of the drug testing reports alone, both the drug testing reports and the expert witness’s testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witness’s testimony conveying the statements contained in those cover memoranda - including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected - were inadmissible under both the Confrontation Clause and MRE 703, while the machine-generated printouts and data were not hearsay at all and could properly be admitted into evidence and serve as the basis for the expert witness’s conclusions

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. the signed, certified cover memoranda on a drug testing report - prepared at the request of the government for use at trial, and which summarized the entirety of the laboratory analyses in the manner that most directly bore witness against appellant - are testimonial under current Supreme Court precedent
2. the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; accordingly, no testimonial hearsay may be admitted against a criminal defendant unless (1) the witness is unavailable, and (2) the witness was subject to prior cross-examination
3. where 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
4. an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay 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
5. it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial; machine-generated data and printouts such as those in this case are distinguishable from human statements, as they involve so little intervention by humans in their generation as to leave no doubt they are wholly machine-generated for all practical purposes; because machine-generated printouts of machine-generated data are not hearsay, expert witnesses may rely on them, subject only to the rules of evidence generally, and MRE 702 and MRE 703 in particular
6. neither the rules of evidence nor the Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay; an expert witness may review and rely upon inadmissible hearsay in forming independent conclusions, but he may not circumvent either the rules of evidence or the Sixth Amendment by repeating the substance of the hearsay
7. although the expert witness in this case may well have been able to proffer a proper expert opinion based on machine-generated data and calibration charts, his knowledge, education, and experience and his review of the drug testing reports alone, both the drug testing reports and the expert witness’s testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witness’s testimony conveying the statements contained in those cover memoranda - including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected - were inadmissible under both the Confrontation Clause and MRE 703, while the machine-generated printouts and data were not hearsay at all and could properly be admitted into evidence and serve as the basis for the expert witness’s conclusions

Core Criminal Law Subjects: Evidence: Hearsay › Business entries

1. statements prepared in anticipation of litigation are not business records and, even if a document might otherwise be a business record, if it is testimonial hearsay, its admission violates the Confrontation Clause

Core Criminal Law Subjects: Witnesses: Confrontation

1. the signed, certified cover memoranda on a drug testing report - prepared at the request of the government for use at trial, and which summarized the entirety of the laboratory analyses in the manner that most directly bore witness against appellant - are testimonial under current Supreme Court precedent
2. the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; accordingly, no testimonial hearsay may be admitted against a criminal defendant unless (1) the witness is unavailable, and (2) the witness was subject to prior cross-examination
3. where 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
4. an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay 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
5. the “witness” that the accused has the right to confront is the declarant; the right of confrontation is not satisfied by confrontation of a surrogate for the declarant; and “reliability” is no substitute for this right of confrontation; while “reliability” is the end, the right of confrontation is the means, and it is the means (rather than the end) that the Sixth Amendment insists upon; substitute means of ensuring reliability do not satisfy the Confrontation Clause, no matter how efficacious they might be; the right of confrontation is the right to confront and cross-examine the actual witness who made the testimonial statement
6. it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial; machine-generated data and printouts such as those in this case are distinguishable from human statements, as they involve so little intervention by humans in their generation as to leave no doubt they are wholly machine-generated for all practical purposes; because machine-generated printouts of machine-generated data are not hearsay, expert witnesses may rely on them, subject only to the rules of evidence generally, and MRE 702 and MRE 703 in particular
7. the fact that the government may, consistent with the rules of evidence and the Confrontation Clause, introduce machine-generated data and expert testimony relying on the work of others does not preclude an accused from seeking to call as witnesses those who operated the machines or performed the work being relied upon to test, among other things, the accuracy, validity, and reliability of those machines and tests; as the Compulsory Process Clause of the Sixth Amendment, Article 46, UCMJ, 10 USC § 846, and RCM 703(a) make clear, a defendant has the right to the compulsory process of witnesses who can provide relevant and necessary evidence in their defense; in other words, a live witness not required by the Confrontation Clause because the government admitted no testimonial hearsay may nonetheless be called by the defense and attendance compelled upon a showing of relevancy and necessity
8. neither the rules of evidence nor the Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay; an expert witness may review and rely upon inadmissible hearsay in forming independent conclusions, but he may not circumvent either the rules of evidence or the Sixth Amendment by repeating the substance of the hearsay
9. although the expert witness in this case may well have been able to proffer a proper expert opinion based on machine-generated data and calibration charts, his knowledge, education, and experience and his review of the drug testing reports alone, both the drug testing reports and the expert witness’s testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witness’s testimony conveying the statements contained in those cover memoranda - including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected - were inadmissible under both the Confrontation Clause and MRE 703, while the machine-generated printouts and data were not hearsay at all and could properly be admitted into evidence and serve as the basis for the expert witness’s conclusions
10. statements prepared in anticipation of litigation are not business records and, even if a document might otherwise be a business record, if it is testimonial hearsay, its admission violates the Confrontation Clause

Core Criminal Law Subjects: Witnesses: Experts

1. an expert may, consistent with the Confrontation Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and nonhearsay 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
2. a qualified expert witness may give testimony in the form of opinion if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case; with respect to the first requirement, if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted; however, such inadmissible facts or data shall not be disclosed to the members by the proponent of the opinion or inferences unless the military judge determines that their probative value in assisting the members to evaluate the expert’s opinion substantially outweighs their prejudicial effect
3. it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay - machines are not declarants - and such data is therefore not testimonial; machine-generated data and printouts such as those in this case are distinguishable from human statements, as they involve so little intervention by humans in their generation as to leave no doubt they are wholly machine-generated for all practical purposes; because machine-generated printouts of machine-generated data are not hearsay, expert witnesses may rely on them, subject only to the rules of evidence generally, and MRE 702 and MRE 703 in particular
4. an expert witness may review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions; an expert witness need not necessarily have personally performed a forensic test in order to review and interpret the results and data of that test; that an expert did not personally perform the tests upon which his opinion is based is explorable on cross-examination, but that goes to the weight, rather than to the admissibility, of that expert’s opinion
5. lack of knowledge or unwarranted reliance on the work of others may make an expert opinion inadmissible: the military judge, in his capacity as a gatekeeper, must determine whether the opinion is based upon sufficient facts or data and is the product of reliable principles and methods reliably applied to the case
6. the fact that the government may, consistent with the rules of evidence and the Confrontation Clause, introduce machine-generated data and expert testimony relying on the work of others does not preclude an accused from seeking to call as witnesses those who operated the machines or performed the work being relied upon to test, among other things, the accuracy, validity, and reliability of those machines and tests; as the Compulsory Process Clause of the Sixth Amendment, Article 46, UCMJ, 10 USC § 846, and RCM 703(a) make clear, a defendant has the right to the compulsory process of witnesses who can provide relevant and necessary evidence in their defense; in other words, a live witness not required by the Confrontation Clause because the government admitted no testimonial hearsay may nonetheless be called by the defense and attendance compelled upon a showing of relevancy and necessity
7. neither the rules of evidence nor the Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay; an expert witness may review and rely upon inadmissible hearsay in forming independent conclusions, but he may not circumvent either the rules of evidence or the Sixth Amendment by repeating the substance of the hearsay
8. although the expert witness in this case may well have been able to proffer a proper expert opinion based on machine-generated data and calibration charts, his knowledge, education, and experience and his review of the drug testing reports alone, both the drug testing reports and the expert witness’s testimony contained a mix of inadmissible and admissible evidence; specifically, the cover memoranda were inadmissible under the Confrontation Clause, and the expert witness’s testimony conveying the statements contained in those cover memoranda - including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected - were inadmissible under both the Confrontation Clause and MRE 703, while the machine-generated printouts and data were not hearsay at all and could properly be admitted into evidence and serve as the basis for the expert witness’s conclusions

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

1. for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 US 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; evidence admitted in violation of the Confrontation Clause of the Sixth Amendment is subject to that standard; in assessing harmlessness in the constitutional context, the question is not whether the evidence is legally sufficient to uphold a conviction without the erroneously admitted evidence; rather, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case