2005
United
States v. Brewer, 61
M.J. 425 (the very nature of an innocent ingestion defense in a
use-of-drugs
case means that an accused cannot prove the time or place of his
innocent
ingestion, but can only suggest possible explanations; part of an
innocent
ingestion defense requires raising doubt in the minds of the members
that the
presence of a drug in an accused’s system came from a knowing and
wrongful use
of the drug; the testimony of witnesses who were with him and observed
his behavior
for much of the relevant time frame and saw no evidence of drug use
provides
grounds for the members to question whether to draw the inference that
an
accused’s drug use was wrongful, thereby raising a question as to an
essential
element of the charged offense; the use of a permissive inference of
wrongful
use by the government requires that a court allow an accused some
leeway to
rebut that inference by using such testimony; the military judge, of
course,
retains the power to limit repetitive testimony under MRE 403).
(in a use-of-drugs case, where
the
military judge precluded testimony from several witnesses who were with
the
accused and observed his behavior for much of the relevant time frame
and saw
no evidence of drug use, that ruling denied the accused the opportunity
to
present a line of defense on the element of wrongful use and violated
his due
process right to present witnesses in his own defense; few rights are
more
fundamental than that of an accused to present witnesses in his own
defense;
thus, the military judge abused his discretion in his ruling).
2003
United
States v. Hall, No. 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; the factfinder may draw a permissible inference of wrongfulness
from a
circumstantial showing of drug use based on such evidence; this
evidence is
legally sufficient as long as the defense evidence of innocent
ingestion could
be reasonably disbelieved by the factfinder; "urinalysis" is not,
however, a synonym for "conviction.").
1999
United
States v. Lewis, 51 MJ 376 (in proving the knowing use
of drugs,
the prosecution can rely upon a permissive inference of wrongfulness,
including
knowledge; and in the face of evidence of innocent ingestion the
prosecution
must also persuade the factfinder to disbelieve this defense evidence
or
discount it in deciding to draw the permissible inference of
wrongfulness).
(disclosure of the defense of innocent ingestion under RCM 701(b)(2)
requires disclosure of witnesses to innocent ingestion, other than the
accused,
only if an accused intends to call such witnesses and does not
otherwise limit
the right of the accused to testify in his/her own behalf).