CORE CRIMINAL LAW SUBJECTS:Evidence:Scientific Evidence

2019 (October Term)

United States v. Baas, 80 M.J. 114 (a laboratory nucleic acid amplification test report for gonorrhea was not testimonial in nature, and thus admission of the lab report, without any testimony from a laboratory employee, did not violate accused's Sixth Amendment Confrontation Clause rights, where the primary purpose of the test was diagnostic and not evidentiary with an eye toward litigation, and where there was no involvement by law enforcement in requesting the test, because the test was ordered from a private lab by a private physician who, upon receiving the results, prescribed a confirmatory test and treatment by another private medical facility; although the physician was aware of the possible law enforcement related consequences of the exam and test results, she was acting as a medical provider, not as an arm of law enforcement, in requesting the test). 

(a Daubert (509 US 579 (1993)) error is nonconstitutional in nature).

(in this case, even assuming that the military judge abused his discretion in admitting a laboratory test result based on an erroneous application of the Daubert (509 US 579 (1993)) factors, appellant was not prejudiced by the test’s admission where the government’s case was strong based on the comprehensive digital forensic evidence, the testimony of the government’s witnesses, and appellant’s own admissions, where the accused's case was weak and improbable, and where the test result was not so material or qualitatively significant as to effect the members' findings of guilt after the defense significantly diminished the materiality and reliability of the non-conclusive test result). 

2015 (September Term)

United States v. Henning, 75 M.J. 187 (MRE 702, which governs the admissibility of expert testimony, provides that if a military judge determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise 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 fact of the case).  

(both US v. Houser, 36 MJ 392 (1993) and US v. Daubert, 509 US 579 (1993) provide expanded factors from those in MRE 702 for the military judge to consider in admitting expert testimony and evidence; the six Houser factors that must be established for expert testimony to be admissible are: (1) the qualifications of the expert, (2) the subject matter of the expert testimony, (3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the reliability of the evidence, and (6) whether the probative value of the testimony outweighs other considerations; Daubert provides more detailed guidance on the fourth and fifth prongs pertaining to relevance and reliability; under Daubert, the military judge must determine:  (1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards controlling the technique’s operation; (5) the degree of acceptance within the relevant scientific community; and (6) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury; although Houser was decided before Daubert, the two decisions are consistent, with Daubert providing more detailed guidance on the fourth and fifth Houser prongs pertaining to relevance and reliability).   

(the reliability of the expert methodology goes to admissibility; the reliability of the application of the methodology goes to the weight of the evidence). 

(in this case, the military judge did not abuse his discretion in excluding DNA evidence and accompanying expert testimony because the government had failed to carry its burden of showing that the modified SWGDAM (Scientific Working Group on DNA Analysis Methods) formula used by the crime lab to interpret the DNA results was reliable under the criteria of MRE 702, Houser, and Daubert, where (1) the military judge found that the preponderance of evidence did not establish that the modified formula was widely accepted or peer reviewed, (2) with the exception of the assertion made by the lab employees who used the formula, there was nothing in the record to show it was employed anywhere outside of the crime lab, (3) the military judge was not required to admit opinion evidence that was connected to existing data only by the ipse dixit (something asserted but not proved) of the expert, and (4) the record failed to contradict the military judge’s finding that the modified formula used by the crime lab was a combination of two different statistical calculations, despite such a combination being impermissible under the SWGDAM guidelines). 

2010 (September Term)

United States v. Sweeney, 70 M.J. 296 (testimonial statements include a formalized certification of results contained in a drug testing report requested by the prosecutor; however, 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). 

(although those performing initial drug tests may well be independent scientists carrying out non-adversarial public duties, that does not mean that their statements are not produced to serve as evidence; where an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information; this is all the more evident where the government expert testifies that the forensic laboratory’s mission is to provide urinalysis drug testing that is scientifically valid and forensically acceptable as evidence in courts of law). 

(in determining whether statements in a drug testing report are testimonial under the Confrontation Clause, the focus has to be on the purpose of the statements in the report itself, rather than the initial purpose for the urine being collected and sent to the laboratory for testing; the relevant question is thus whether the statement is 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). 

(the formality of a document generated by a forensic laboratory is a factor to be considered when determining whether a document is testimonial).

(the admission of a cover memorandum results certification of a drug testing report for appellant’s urinalysis violated the Confrontation Clause, and that error was plain and obvious; the memorandum was testimonial where the laboratory made it after appellant had been charged, addressed it to the legal service office, and included the formulaic language for authenticating a business record - language one would expect to find only on a document made for an evidentiary purpose). 

(the admission of a specimen custody document certification from a drug testing report for appellant’s urinalysis violated the Confrontation Clause, and that error was plain and obvious; the certification was testimonial where it was a formal, affidavit-like statement of evidence that not only presented the machine-generated results, but also indicated that the laboratory results were correctly determined by proper laboratory procedures, and that they were correctly annotated; such a formal certification has no purpose but to function as an affidavit; because the declarant of the certification was not subject to cross-examination, admission of the specimen custody document plainly and obviously violated the Confrontation Clause). 

(the admission of the chain of custody documents, data review sheets, and results report summary from a drug testing report for appellant’s urinalysis (along with their stamps, signatures, and other notations) did not constitute plain error; these documents were not plainly and obviously testimonial where they were neither formalized, affidavit-like statements, nor statements made in a formal setting). 


United States v. Hall, 58 MJ 90 (evidence of urinalysis tests, their results, and expert testimony explaining them is sufficient to permit a factfinder to find beyond a reasonable doubt that an accused used contraband drugs).


United States v. Green, 55 MJ 76 (given the unique aspects of drug prosecutions in the armed forces and the serious consequences of a positive urinalysis, the military judge must ensure a careful and thorough Daubert-type analysis in such cases).

(if expert testimony has an established scientific, technical, legal, judicial, or evidentiary foundation regarding reliability and relevance, it may be appropriate to take judicial notice under Mil. R. Evid. 201 without further litigation).

United States v. Norris, 55 MJ 209 (the admission of scientific evidence based on scientific knowledge, technical knowledge, and other specialized knowledge depends on a number of factors that go to the relevance and reliability of the evidence; these factors are aimed at ensuring the overall reliability of the evidence, including any information used to form the basis for an opinion).

(the standard of review of a military judgeís ruling admitting expert, scientific testimony is abuse of discretion).

United States v. Dimberio, 56 MJ 20 (although expert opinion evidence of a psychiatric diagnosis or personality disorder does not fit within the exceptions noted in Mil.R.Evid. 404(a), the accused nonetheless has a constitutional right to introduce the evidence if it is otherwise legally and logically relevant under Mil.R.Evid. 401-403).

(an expert offering testimony on mental health problems, like those offering other scientific theories, would have to show that the traits do exist in an individual and that those character traits do react similarly in certain situations under the criteria for admissibility of scientific evidence established by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)).


United States v. Latorre, 53 MJ 179 (if special knowledge is necessary to assist the trier of fact, experts may testify using information reasonably relied upon by other experts in the particular field; but the proffered expert testimony must be relevant and helpful to the fact-finder, and the basis of the expert opinion must be scientifically sound considering factors such as whether the theory has been tested, whether it has been reviewed by others in the area, and whether it has gained general acceptance).

(government did not lay an adequate foundation for expert testimony where:  (1) there was no showing that expertís methods and conclusions were accepted by the scientific community at large or had even been reviewed by it; (2) the expertís conclusions were based upon his own work; (3) the expertís description of his work was too cursory; (4) the expertís work was based on a study group which was too limited; and (5) it was not apparent how this work, per se, was relevant or useful to the fact-finder).

(although government did not lay an adequate foundation to support scientific evidence concerning recidivism and future conduct of pedophiles, appellant was not prejudiced on sentencing where: (1) the governmentís case was strong; (2) the defense case for leniency was unremarkable; and (3) the quality and materiality of the evidence was not readily apparent).


United States v. Campbell, 50 MJ 154 (urinalysis testing for LSD by gas chromatography tandem mass spectrometry drug testing).

United States v. Anderson, 51 MJ 145 (an expert may:  (1) testify about the characteristics of sexually abused children; (2) testify about the characteristics of sexual abused exhibited by an alleged victim; and (3) summarize the available medical evidence and express an opinion that the evidence is consistent or inconsistent with the victimís allegations of sexual abuse).

(military judge did not abuse his discretion in admitting evidence of Child Abuse Accommodation Syndrome:  (1) such evidence is admissible; (2) failure to object waives this alleged defect; and (3) there is no basis to invoke plain error).

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