U.S. v. Tearman, 72 M.J. 54

First Principles: Constitutional Matters: Confrontation

1. a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; asked another way, would it be reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary; to make this determination, fine distinctions based on the impetus behind the testing and the knowledge of those conducting laboratory tests at different points in time are treated as relevant considerations, but not as dispositive factors; moreover, the formality of a statement is a factor to be considered when determining whether the statement is testimonial for the purposes of the Confrontation Clause
2. under any of the various formulations of testimonial statements, neither the chain-of-custody documents nor the internal review worksheets at issue in the drug testing report were testimonial for purposes of the Confrontation Clause; the process of creating the challenged statements was initiated without any external request, before appellant was charged, and before all, or in the case of the chain-of-custody documents, any testing was complete; the entries and notations contained in the documents were made contemporaneously with a change in custody of the sample or a step in the testing process, pursuant to the regular practice of the drug screening lab and in the regular course of conducting its business; thus, when the laboratory technicians signed and annotated the internal chain-of-custody and internal review documents, they did so under circumstances which would lead an objective witness reasonably to believe that they did so to maintain internal control, not to create evidence for use at a later trial; in addition, none of the statements at issue summarize or certify additional substantive information; instead, the signatures and annotations in the chain-of-custody documents and internal review worksheets track the progress of the specimen bottle from the command to the drug screening lab and from person-to-person at the drug screening lab, and note the progress of the sample through the testing processes; finally, the documents at issue lack any indicia of formality or solemnity that, if present, would suggest an evidentiary purpose; instead, the statements are comprised of nothing more than signatures, stamped names, dates, and minimal notations with no certification, swearing, witnessing, or other attestation; based on all of the above, none of the statements contained in the chain-of-custody documents and the internal review worksheets at issue were testimonial and that the military judge did not abuse his discretion in admitting them as business records under MRE 803(6)
3. relief for Confrontation Clause errors will be granted only where they are harmless beyond a reasonable doubt
4. to determine whether a Confrontation Clause error is harmless beyond a reasonable doubt, an appellate court balances factors such as: (1) the importance of the unconfronted testimony in the prosecution’s case, (2) whether that testimony was cumulative, (3) the existence of corroborating evidence, (4) the extent of confrontation permitted, and (5) the strength of the prosecution’s case; this list of factors is not exhaustive, and the determination is made on the basis of the entire record; to conclude that a Confrontation Clause error was harmless beyond a reasonable doubt, an appellate court must be convinced that the testimonial hearsay was unimportant in light of everything else the court members considered on the issue in question

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. whether admitted evidence constitutes testimonial hearsay is a question of law reviewed de novo
2. a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; asked another way, would it be reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary; to make this determination, fine distinctions based on the impetus behind the testing and the knowledge of those conducting laboratory tests at different points in time are treated as relevant considerations, but not as dispositive factors; moreover, the formality of a statement is a factor to be considered when determining whether the statement is testimonial for the purposes of the Confrontation Clause
3. under any of the various formulations of testimonial statements, neither the chain-of-custody documents nor the internal review worksheets at issue in the drug testing report were testimonial for purposes of the Confrontation Clause; the process of creating the challenged statements was initiated without any external request, before appellant was charged, and before all, or in the case of the chain-of-custody documents, any testing was complete; the entries and notations contained in the documents were made contemporaneously with a change in custody of the sample or a step in the testing process, pursuant to the regular practice of the drug screening lab and in the regular course of conducting its business; thus, when the laboratory technicians signed and annotated the internal chain-of-custody and internal review documents, they did so under circumstances which would lead an objective witness reasonably to believe that they did so to maintain internal control, not to create evidence for use at a later trial; in addition, none of the statements at issue summarize or certify additional substantive information; instead, the signatures and annotations in the chain-of-custody documents and internal review worksheets track the progress of the specimen bottle from the command to the drug screening lab and from person-to-person at the drug screening lab, and note the progress of the sample through the testing processes; finally, the documents at issue lack any indicia of formality or solemnity that, if present, would suggest an evidentiary purpose; instead, the statements are comprised of nothing more than signatures, stamped names, dates, and minimal notations with no certification, swearing, witnessing, or other attestation; based on all of the above, none of the statements contained in the chain-of-custody documents and the internal review worksheets at issue were testimonial and that the military judge did not abuse his discretion in admitting them as business records under MRE 803(6)
4. (statements of the official drug test result and certification on the specimen custody document, DD Form 2624, were testimonial statements and their admission was error

Core Criminal Law Subjects: Evidence: Hearsay › Business entries

1. under any of the various formulations of testimonial statements, neither the chain-of-custody documents nor the internal review worksheets at issue in the drug testing report were testimonial for purposes of the Confrontation Clause; the process of creating the challenged statements was initiated without any external request, before appellant was charged, and before all, or in the case of the chain-of-custody documents, any testing was complete; the entries and notations contained in the documents were made contemporaneously with a change in custody of the sample or a step in the testing process, pursuant to the regular practice of the drug screening lab and in the regular course of conducting its business; thus, when the laboratory technicians signed and annotated the internal chain-of-custody and internal review documents, they did so under circumstances which would lead an objective witness reasonably to believe that they did so to maintain internal control, not to create evidence for use at a later trial; in addition, none of the statements at issue summarize or certify additional substantive information; instead, the signatures and annotations in the chain-of-custody documents and internal review worksheets track the progress of the specimen bottle from the command to the drug screening lab and from person-to-person at the drug screening lab, and note the progress of the sample through the testing processes; finally, the documents at issue lack any indicia of formality or solemnity that, if present, would suggest an evidentiary purpose; instead, the statements are comprised of nothing more than signatures, stamped names, dates, and minimal notations with no certification, swearing, witnessing, or other attestation; based on all of the above, none of the statements contained in the chain-of-custody documents and the internal review worksheets at issue were testimonial and that the military judge did not abuse his discretion in admitting them as business records under MRE 803(6)
2. although not every business record is necessarily nontestimonial, the characteristics that distinguish documents prepared in the course of a regularly conducted business activity from those prepared in anticipation of litigation under MRE 803(6), are also indicative of an administrative purpose rather than an evidentiary purpose

Trial Stages: Appeals: Harmless / Prejudicial Error

1. relief for Confrontation Clause errors will be granted only where they are harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo; in the context of the erroneous admission of testimonial hearsay, the harmless beyond a reasonable doubt inquiry of an appellate court focuses on whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction
2. to determine whether a Confrontation Clause error is harmless beyond a reasonable doubt, an appellate court balances factors such as: (1) the importance of the unconfronted testimony in the prosecution’s case, (2) whether that testimony was cumulative, (3) the existence of corroborating evidence, (4) the extent of confrontation permitted, and (5) the strength of the prosecution’s case; this list of factors is not exhaustive, and the determination is made on the basis of the entire record; to conclude that a Confrontation Clause error was harmless beyond a reasonable doubt, an appellate court must be convinced that the testimonial hearsay was unimportant in light of everything else the court members considered on the issue in question
3. the erroneous admission of testimonial hearsay of the official drug test result and certification on the specimen custody document, DD Form 2624, in a drug use conviction was harmless beyond a reasonable doubt, where (1) the minimal testimonial hearsay admitted was unimportant to the government’s case when viewed as a whole; (2) the testimonial hearsay was cumulative with the testimony of the expert witness from the drug screening laboratory; (3) the testimonial hearsay was independently corroborated; and (4) overall, the government’s case was strong

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

1. whether admitted evidence constitutes testimonial hearsay is a question of law reviewed de novo
2. relief for Confrontation Clause errors will be granted only where they are harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo; in the context of the erroneous admission of testimonial hearsay, the harmless beyond a reasonable doubt inquiry of an appellate court focuses on whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction
3. to determine whether a Confrontation Clause error is harmless beyond a reasonable doubt, an appellate court balances factors such as: (1) the importance of the unconfronted testimony in the prosecution’s case, (2) whether that testimony was cumulative, (3) the existence of corroborating evidence, (4) the extent of confrontation permitted, and (5) the strength of the prosecution’s case; this list of factors is not exhaustive, and the determination is made on the basis of the entire record; to conclude that a Confrontation Clause error was harmless beyond a reasonable doubt, an appellate court must be convinced that the testimonial hearsay was unimportant in light of everything else the court members considered on the issue in question