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Friday, October 16, 2009

Chicken Little Or Canary In The Coal Mine, Take 4: Article Speculates That Melendez-Diaz Could Have Substantial Negative Impact In Military Justice System

I have written three previous posts (herehere, and here) on this blog about the Supreme Court's recent opinion in Melendez-Diaz v. Massachusetts. Basically, this opinion held that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. I titled each of these posts, "Chicken Little or Canay in the Coal Mine" because of the differing views of the impact of the opinion offered by Justices Scalia and Kennedy in their majority and dissenting opinions, respectively. According to Scalia, the opinion will not have a substantial negative impact on criminal prosecutions, but Kennedy disagreed. According to a new article by Patrick McClain, one place where the opinion might have a substantial negative impact is in the military justice system.

McClain notes that 

To enforce drug policies and ensure compliance by servicemembers, the military has an expansive testing system. Drug testing is most commonly conducted at random, but the military also has the authority to require probable cause testing, unit/command sweep testing and commander-directed testing.

Once a urine sample has been collected, it is sent to one of the military testing facilities across the country to determine if the servicemember has violated the military's drug policy. If the results are positive, the servicemember will be subject to discipline for violating the military's policies, which generally has resulted in a court martial....

In bringing evidence against a servicemember for failing a urinalysis test, the military has allowed prosecutors to introduce a "documentary" or "litigation" package concerning the lab test results. The documentary package usually includes the lab report itself and in-court testimony from a representative of the lab (sometimes referred to as a "surrogate") who is familiar with the personnel and procedures of the lab that conducted the testing.

However, it appears that the use of a documentary package in urinalysis cases is no longer constitutional under Melendez-Diaz. While the decision left it unclear which analyst would have to be available for in-court testimony, the military may have to bring in every analyst who was involved in the testing process.

If the military is required to do this, it could greatly increase the time and expense of prosecuting drug cases. Rather than using a documentary package with one person's testimony, the prosecution may have to bring in everyone who was involved in the collection and evaluation of the urine sample. Labs across the country already are dealing with resource constraints, burdened with heavy workloads and long hours. Requiring the analysts to prepare the reports and to be available for in-court testimony will only further add to this burden and increase the backlog in these overworked laboratories.

McClain speculates that 

Because of this increased burden, Melendez-Diaz also could ultimately result in expanded use of administrative separation proceedings rather than court martial to handle drug cases. Administrative separations are not punitive in nature; these proceedings cover both voluntary and involuntary separations. However, such a result would be at the detriment of servicemembers facing drug charges.

The administrative process has a lower standard of proof (probable cause) and defendants are afforded fewer legal rights and protections than in a court martial....Given the great impact the result of an administrative separation proceeding can have on a person's career, handling urinalysis cases in proceedings with fewer rights and legal protections seems inappropriate at best.

Of course, McClain notes that all of the above is just speculation and that 

Some commentators believe the opinion ultimately will not have much impact on the way urinalysis cases are prosecuted and believe the military will distinguish the Melendez-Diaz opinion in a way that allows them to continue using documentary packages. Others, however, fear the ruling could greatly impact the military justice system and increase the costs of prosecuting urinalysis cases.

Another reason why worrying about the effect of Melendez-Diaz now might be premature is because, as I have noted before, the Supreme Court recently granted cert in Briscoe v. Virginia, and the Supremes (especially with the new addition of Sotomayor) may very well overrule Melendez-Diaz or at least limit its application.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/10/melendez-diaz-militaryhttpwww24-7pressreleasecompress-releasemelendezdiazs-impact-on-military-urinalysis-cases-120395.html

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Comments

Interestingly I was at the Annual Judge Advocates Association/CAAF Appellate Advocacy Symposium today. M-D was one of the topics. The considered opinion seems to be that Melendez-Diaz will have little effect in military urinalysis cases. They did present an interesting number.

Prior to M-D VA had about 24 requests for production of lab personnel, post M-D about 978. I suppose this goes to the sky-is-falling argument.

United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), is the post Crawford military case analysing the typical military urinalysis prosecution. The prosecution calls an expert witness to testify that the drug isn't naturally manufactured and that it can have an effect at a ng level above the cut-off. The expert brings all the lab testing printouts, QA information, chain of custody, and testifies to lay a foundation. He then gives his expert opinion about the documents, etc.

We were also pointed to United States v. Washington, 498 F.3d 225 (4th Cir. 2009) CD, which discusses a process similar to that followed in military cases. We have the laboratory documents and then an expert from the lab comes in and explains and interprets them.

Cheers.

Posted by: Phil Cave | Oct 16, 2009 3:45:59 PM

I should mention that U.S. v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008), was CAAF's resolution of the M-D question pre-M-D.

Cheers.

Posted by: Phil Cave | Oct 16, 2009 4:16:04 PM

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