Prosecuting violations of Article 112a, Uniform Code of Military Justice (UCMJ),1 requires familiarity with urinalysis procedures, forensic toxicology, hearsay rules, and military case law interpreting Crawford v. Washington.2 This article will orient trial counsel to the general components of Article 112a, UCMJ, trials, beginning with identifying the controlled substance in the specification, collecting urine from the accused, transferring the urine specimen to a testing laboratory, and concluding with expert testimony from a forensic toxicologist. With the aim of enhancing trial counsel prosecution of drug cases, this article focuses on wrongful use shown through urinalyses conducted by Army drug testing programs and testing conducted by the Defense Forensic Science Center or a Department of Defense (DoD) Forensic Toxicology Drug Testing Laboratory.
The Elements of Article 112a, UCMJ
The elements of wrongful use of a controlled substance are straightforward. The government must prove that (1) the accused used a controlled substance; (2) the accused actually knew they used the substance; (3) the accused actually knew that the substance was a controlled substance; and (4) the use was wrongful.3 While not an enumerated element, the government must prove that the substance is either specifically listed in Article 112a, UCMJ, or “listed on a schedule of controlled substances[.]”4
The Military Judge’s Benchbook provides that “‘[u]se’ means to inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance. ‘Use’ includes such acts as smoking, sniffing, eating, drinking, or injecting.”5 The presence of a controlled substance in one’s urine is sufficient to establish administration, ingestion, or physical assimilation.6 Presence of a metabolite of the controlled substance is likewise sufficient to establish use.7
The government must next show that the accused knowingly used the substance in question, that they knew it was a controlled substance, and that the use was wrongful. These three elements may be inferred from surrounding circumstances where direct proof is not available. The government must actually elicit testimony or introduce other evidence showing that the “suggested conclusion of wrongfulness should be inferred based on the predicate facts proven.”8 Types of evidence that may support inferences of knowledge and wrongfulness include high concentrations of a drug, testimony concerning the drug’s effect on the user, facts disproving passive inhalation, statements by the accused, or other acts offered under Military Rule of Evidence (MRE) 404(b). Such evidence is of critical importance in all Article 112a, UCMJ, cases, and particularly in cases where the scientific evidence does not plainly support inferences of wrongful and knowing use.9
Inferences of knowing use and wrongfulness are permissive, not mandatory.10 Practitioners must take care to identify facts that support such inferences and develop clearly articulable theories for how those facts show knowledge and wrongfulness. Trial counsel should likewise be prepared to deliver opening statements and closing arguments discussing the predicate facts and the consequent inferences couched in terms of the government’s burden of proof. Put differently, trial counsel must argue that the circumstantial evidence showing knowledge and wrongfulness is itself proof beyond a reasonable doubt satisfying the corresponding elements.
Evidence giving rise to inferences of knowledge and wrongfulness may vary widely from case to case. Trial counsel should work with a forensic toxicologist, medical review officer, or criminal investigator to develop theories of knowledge and wrongfulness.
Roadmap of Proof
A successful Article 112a, UCMJ, prosecution generally involves explaining the following basic components to the fact-finder: (1) identifying the drug or controlled substance; (2) initiation of the urinalysis; (3) conducting the urinalysis; (4) transfer of urine to the installation drug testing coordinator; (5) transfer of urine to the drug testing laboratory; (6) establishing chain of custody through assignment of a unique identifying number to the urine specimen; and (7) expert testimony describing forensic testing and identifying the drug or controlled substance in the urine specimen. Each of these basic components will be discussed in its own detailed section below.
To begin, trial counsel must properly identify the substance on the charge sheet. Certain substances listed in Article 112a, UCMJ,11 may be identified simply by listing them in the Article 112a, UCMJ, specification and offering evidence that the accused’s urine contained that substance. Substances not specifically listed in Article 112a, UCMJ, but listed on a schedule of controlled substances prescribed by the President or schedules I through V of the Controlled Substances Act12 must be identified through reference to the appropriate schedule. Judicial notice is generally the most reliable mode of proof for such schedules.
Once trial counsel properly identifies the substance in question, they should present their case-in-chief chronologically beginning with initiation of the urinalysis. A company commander or first sergeant is usually able to describe whether the urinalysis was part of a 100% unit inspection, random inspection, probable cause test, or unit policy. Trial counsel should then call the unit prevention leader (UPL) and the urinalysis observer to describe the collection, documentation, storage, and transportation of the accused’s urine specimen. The UPL should testify about the use of the specimen custody documents generated during the urinalysis and how they transported the urine to the installation drug testing coordinator. The drug testing coordinator will then testify about the storage of the urine specimen and its shipment to the testing location. At this point, the finder of fact should be able to clearly link the accused’s identifying information with the urine specimen in question.
Once received by the testing location, laboratory personnel will assign a unique laboratory accession number to the specimen to be used on all storage and testing documentation generated by the laboratory. Trial counsel should be unambiguous in connecting the accused’s urine specimen to the laboratory accession number found on testing and storage documentation. Counsel may offer proof of that connection through the testimony of the forensic analyst who conducted the testing of the urine specimen or a certifying scientist familiar with the testing.
Trial counsel should then ask the forensic analyst or certifying scientist to describe the presumptive and confirmatory tests performed on the urine specimen and explain documentation generated during those tests. Once the forensic analyst or certifying scientist explains the tests, they will be able to provide an expert opinion about the nature of the substance in the accused urine.
Identifying the Controlled Substance
Article 112a, UCMJ, contains three separate clauses identifying different categories of prohibited substances. The first clause is a list of specifically named substances. The second clause proscribes wrongful use of substances “listed on a schedule of controlled substances prescribed by the President for the purposes of this article.”13 The third clause includes substances not already specified in the other two categories and “listed in schedules I through V of section 202 of the Controlled Substances Act.”14 Do not use the third clause for substances listed in the first two clauses.
The first clause is self-explanatory and includes the most commonly used drugs.15 Article 112a, UCMJ, specifically identifies “[o]pium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance”16 as prohibited substances. Trial counsel may use the name of a substance as listed in the first clause in the Article 112a, UMCJ, specification without further reference to a schedule of controlled substances.17
An expert opinion that the accused’s urine contained any of the substances listed above from a forensic toxicologist with at least some knowledge of the testing of the accused’s urine specimen is generally sufficient to identify the prohibited substance.18 Such proof extends to metabolites of any of these substances. Note that test results may describe only the chemical compound present in the urine and may not identify the substance by its common name. For example, laboratory test reports may show 11-nor-delta-9-tetrahydrocannabinol-carboxylic acid, a metabolite of tetrahydrocannabinol (THC) in the urine specimen. Where the specification alleges that the accused wrongfully used marijuana, be sure to elicit testimony from a forensic toxicologist that THC is a compound found in marijuana.
The second clause incorporates a schedule of controlled substances prescribed by the President and published in the Manual for Courts-Martial.19 It references the same substances listed in the text of Article 112a, UCMJ, and adds the drugs phenobarbital and secobarbital. As a practical matter, practitioners should not charge offenses under the second clause unless the substance in question is phenobarbital and secobarbital. If the substance in question is phenobarbital or secobarbital, counsel should name phenobarbital and secobarbital and include the words “a controlled substance” in the specification.20
Military appellate courts have not directly addressed whether a military judge must take judicial notice of the schedule published in the Manual for Courts-Martial (MCM).21 As a matter of caution, counsel charging wrongful use of phenobarbital and secobarbital should consider requesting that the military judge take judicial notice of the schedule published in the MCM. After judicial notice of this schedule, trial counsel must offer an expert opinion that the accused’s urine contained phenobarbital and secobarbital in the same manner as described for the first clause.
The third clause incorporates schedules I through V of the Controlled Substances Act. Specifications under clause three must identify the substance by exactly the same name as shown in the schedule of controlled substances.22 Do not use common or street names in the specification. Trial counsel must request judicial notice of the Controlled Substances Act, 21 U.S.C. § 812 and the appropriate schedule found in 21 C.F.R. §§ 1308.11 et. seq. under MRE 20223 The motion should include both the Act and the appropriate schedule as attachments.24 While not required under MRE 202(a), the military judge may give an instruction that the substance in question “is a controlled substance under the laws of the United States.”25
Counsel must take special care to elicit testimony that the substance found in the accused’s urine is the same substance (or a metabolite thereof) named in the schedule of controlled substances. For example, if witnesses refer to the substance in question as “ecstasy,” the forensic toxicologist must state that “ecstasy” is a common name for the 3,4-Methylenedioxymethamphetamine found in the accused’s urine specimen.26
Initiation of the Urinalysis
After properly identifying the substance, counsel should proceed with a chronological presentation of the facts ultimately leading to forensic testing of the accused’s urine sample. The fact-finder will be interested to know why the accused provided a urine sample in the first place. By beginning with the initiation of the urinalysis, trial counsel is able to answer this question while accounting for any special circumstances surrounding a unit sweep inspection or a probable cause test. This starting point may also facilitate introduction of incriminating statements by the accused or evidence offered under MRE 404(b) to show knowledge or wrongful use. Finally, describing the initiation of the urinalysis may assist in laying foundations to admit documents with the accused’s identification number into evidence.
The company commander, first sergeant, or UPL is often in the best position to discuss the initiation of a urinalysis.27 Commanders typically conduct urinalyses for two purposes: inspection and probable cause. Inspections are part of a regulatory requirement to conduct drug testing for purposes of “security, military fitness, and good order and discipline of the unit.”28 Commanders may conduct random inspections, inspections executed pursuant to a command policy,29 or unit sweeps.
Testimony about initiating inspections is relatively simple and involves describing unit policies implementing the Military Personnel Drug Testing Program. The testimony of a company commander or first sergeant is often not necessary for inspections, as the UPL is generally more familiar with the regulatory requirements for the inspection in question. In order to describe the initiation of a urinalysis, the UPL should discuss the type of inspection involved, the purpose of the inspection, the test codes used to identify the type of inspection, and documentation required for the inspection.30
Probable cause tests offer richer factual backgrounds than inspections.31 Company commanders and first sergeants are often very familiar with the probable cause test in question and tend to offer persuasive testimony about the underlying facts. Counsel should offer those facts under MRE 404(b) to show knowledge and wrongfulness. As an example, trial counsel may offer the testimony of a first sergeant who observed the accused with bloodshot eyes and rolling papers to show that the accused knew he used marijuana and that the use was without legal justification.
Explaining the collection of the accused’s urine is of critical importance to proving wrongful use. In order to successfully explain the urinalysis, counsel will have to show that the urine specimen in question originated from the accused and that the UPL properly documented, stored, and transmitted the urine. Practitioners must accordingly be familiar with the Unit Prevention Leader Handbook and related regulations.32
Trial counsel should call the UPL to testify about their training, knowledge of governing regulations, the collection of the accused’s urine, completion of specimen custody documents (commonly referred to as the Department of Defense (DD) Form 2624, Specimen Custody Document-Drug Testing),33 storage of the urine, and transportation of the urine to the installation drug testing coordinator.
Preparing and Conducting the Urinalysis
Unit Prevention Leaders must be designated on appointment orders by the unit commander and must complete UPL certification training.34 At minimum, the UPL should be thoroughly familiar with Army Regulation (AR) 600-85, Appendix E, Standing Operating Procedures for Urinalysis Collection, Processing, and Shipping.35 After discussing their qualifications and training, the UPL should explain preparation of the DD Form 2624 for the urinalysis in question, unit-testing roster (also called a testing register or ledger), supplies needed for testing,36 briefing of observers, and inspection of urine collection areas.
The UPL should then describe verification of the accused’s information on the DD Form 2624, unit-testing roster (used to document all personnel who provided urine specimens for the urinalysis in question), and bottle labels against his or her military identification card. The identification number on the urine specimen bottle should match the identification number found on the DD Form 2624. The UPL should clarify any apparent discrepancies found on this documentation. The UPL will then require the accused to initial the urine specimen bottle to verify their information on the bottle label.
Next, the UPL will give the accused the urine specimen bottle from its box and place the accused’s identification card in the box. The accused will proceed to the specimen collection area to provide a urine specimen. An observer must “[m]aintain direct eye contact with the specimen bottle from the time the UPL hands it to the Soldier until the time the UPL places it in the collection box.”37 The observer must observe urine leave the accused’s body and go into the urine specimen bottle.38
The accused must next return the urine specimen bottle to the UPL, who will ensure the bottle cap fits tightly and place tamper evident tape across the cap and bottle. This process concludes with the UPL returning the accused identification card, placing the urine specimen bottle in a leak-proof bag, and placing the bottle in its box. Both the observer and the accused will sign the unit testing roster verifying that the accused “provided the urine in the specimen bottle and that they observed the specimen being sealed with tamper evident tape and placed into the collection box.”39
After collection of the urine specimens, the UPL again verifies that the information on the DD Form 2624 matches the information on the urine specimen bottle labels. After verifying this information, the UPL places the DD Form 2624 in the urine specimen box and transports the urine specimen box to the installation drug testing collection point as soon as possible.
Practice Point: Deviation from Standard Procedure
Accounting for any human error in the collection, documentation, or storage of the urine is vital in determining whether to pursue criminal charges at all40 and may affect witness lists, voir dire, direct- and cross-examination of government witnesses, and instructions.41 Because compliance with applicable procedures varies widely, counsel must conduct detailed interviews with the UPL, the observer, and any other individuals who substantially participated in the collection of the accused’s urine. Counsel should review AR 600-85, paras. E-4 through E-7 with the UPL and make note of any deviation from those procedures.
A common deviation is delayed transportation of the urine specimens to the installation drug testing collection point. While governing regulations allow delay,42 practitioners should account for the length and conditions of storage. Lengthy delays or failure to follow regulatory requirements for temporary storage of urine specimens at the unit level may result in exclusion of subsequent test results or the fact-finder doubting the integrity/reliability of the testing.43
Practice Point: Recalling Detailed Facts
Another frequent concern involves difficulty in recalling the urinalysis in question. Urinalyses tend to be rote, uneventful affairs that collect urine for scores of service members over the course of a few hours. The UPL or the observer may conduct dozens of urinalyses over the course of a calendar year. Unit Prevention Leaders and observers typically learn of positive urinalysis results many months after the original urinalysis. They may accordingly have difficulty in recalling details about a specific urinalysis.44 Unit Prevention Leaders and observers may nevertheless testify about matters of routine practice. Counsel should also ask the UPL or observer whether they ever deviate from the procedures they normally follow. If they do not generally deviate from those procedures, counsel may offer their testimony as evidence of habit or routine practice under MRE 406.45 For trial before members, consider requesting a special instruction for such evidence.46
Practice Point: Authenticating the DD Form 2624
The UPL may assist in authenticating documentation associated with the accused’s urine specimen irrespective of their recollection of the urinalysis in question. When preparing for trial, identify the documentation associated with the urinalysis that the UPL generates or maintains. Review that documentation for signatures, handwriting, or other unique identifying features that the UPL recognizes. The UPL may then testify about their personal knowledge of the records. Such testimony is sufficient to satisfy authentication requirements.47
Trial counsel may also use the UPL to begin laying the foundation for hearsay exceptions for documentation associated with the urinalysis. Practitioners may wish to offer the DD Form 2624 into evidence during the forensic toxicologist’s testimony, but the UPL may nevertheless testify that such records are kept in the normal course of business and that generating such records is a regular practice of that unit.48 The testimony of the UPL coupled with the testimony of the forensic toxicologist will provide a robust foundation to show that the DD Form 2624 is admissible as a business record.49
The Drug Testing Coordinator
The drug testing coordinator manages and oversees the drug-testing program for an entire installation. While their duties are manifold, their testimony at trial should not extend past describing the purpose of the drug-testing program and establishing a link in the chain of custody for the accused’s urine specimen.
First, the drug-testing coordinator must be familiar with the purpose of military drug-testing programs and should be able to testify that the program “emphasizes readiness and personal responsibility.”50 Such testimony is necessary to avoid testimonial hearsay objections to the DD Form 2624 and other documents generated as part of the urinalysis.51
Second, the drug testing coordinator should testify about their receipt of the urine specimen from the UPL, storage of the specimen, and shipment of the specimen to the drug-testing laboratory. Although the prosecution is not required to present every link in a chain of custody,52 the drug-testing coordinator is helpful in explaining the reliability of their storage and shipment methods as a way to eliminate any concern of contamination or misidentification of the accused’s urine specimen. Upon receiving a box of urine specimens from the UPL, the drug-testing coordinator will again ensure that the information on the bottle labels matches the information on the DD Form 2624 and the unit-testing roster.53 The drug-testing coordinator will then sign the DD Form 2624 and store the urine specimen in a specialized specimen storage room while they arrange for shipment of the specimen to the drug-testing laboratory. Trial counsel should ask the drug-testing coordinator to describe the layout, security equipment, and temperature of the specimen storage room.54 Finally, the drug-testing coordinator will arrange for shipment of the specimen to the appropriate drug-testing laboratory using the U.S. Postal Service or a commercial carrier, such as FedEx.55
Practice Point: Using the Drug Testing Coordinator While Preparing Your Case
The drug testing coordinator normally maintains DD Forms 2624, unit ledgers, and unit accountability documentation, and other locally generated documentation associated with a urinalysis. Note that the drug-testing coordinator forwards the DD Form 2624 to the testing laboratory, but not the unit ledger or other locally generated documentation. The unit ledger is therefore not a part of the lab documentation packet and may not be included in a law enforcement file. Trial counsel should interview the drug-testing coordinator early in their preparation for trial to identify and gather relevant documentation. Doing so will aid in trial planning and facilitate discovery.
Chain of Custody Documentation
Admitting the DD Form 2624 into evidence is essential to link the urine provided by the accused to the tests performed by drug-testing laboratory. The UPL, drug-testing coordinator, and forensic toxicologist may reference the DD Form 2624 while testifying to account for collection of the urine, storage of the urine, receipt of the urine by the drug-testing laboratory, and assignment of a laboratory accession number by laboratory personnel.
As discussed briefly above, admitting the DD Form 2624 into evidence requires appropriate witnesses to authenticate the document and lay the foundation for the business records hearsay exception. While the DD Form 2624 may be authenticated by the UPL, consider that the UPL does not generally have personal knowledge of information recorded on the DD Form 2624 after they deliver the urine specimen to the installation drug-testing coordinator. The forensic toxicologist or certifying scientist is often better positioned to authenticate the DD Form 2624 by testifying about assignment of a laboratory accession number and signatures in the “chain of custody tracking” section of the document.
Next, trial counsel should elicit testimony from the UPL and the forensic toxicologist to lay the foundation for the business records hearsay exception. The business records hearsay exception requires evidence from a records custodian or “another qualified witness” that (1) the information was recorded close in time to the event it documents, (2) that “the record was kept in the course of a regularly conducted activity” of the organization, and (3) “making the record was a regular practice” of the organization.56
While there is no singular “records custodian” for the DD Form 2624, this is an indispensable document for both the UPL and the forensic toxicologist. Both witnesses must testify about the information recorded on the DD Form 2624, the regulatory requirements to generate and maintain the document, and their level of experience with the document. The UPL and the forensic toxicologist should easily qualify as a “qualified witness.”57
Trial counsel must next show that the information was recorded close in time to the events it documents. Both the UPL and the forensic toxicologist should be able to testify that annotating changes of custody and assignment of a laboratory accession number (LAN) occur contemporaneously with those events.58 The remaining elements of the business records hearsay exception require evidence that the military regularly conducts urinalyses and that personnel conducting urinalyses generate and maintain a DD Form 2624 for every urinalysis.
However, trial counsel will not avoid a hearsay objection by simply satisfying the requirements of MRE 803(6). Trial counsel must also present evidence that the DD Form 2624 is not a testimonial document. Crawford v. Washington and its progeny prohibit introduction of out-of-court statements “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”59 Put differently, an otherwise admissible item of hearsay is nevertheless inadmissible where the primary purpose of the statements was to “create evidence.”60
Trial counsel must accordingly elicit testimony from the UPL and the forensic toxicologist characterizing the DD Form 2624 as an internal control document. Testimony about the general purpose of the drug-testing program should demonstrate that the program is designed for “security, military fitness, and good order and discipline[.]”61 This purpose applies most directly to “inspection” tests where the command does not necessarily anticipate criminal prosecution.
Testimony about the various purposes of the drug-testing program may be less persuasive in cases involving a probable cause tests, which, by their nature, suggest criminal prosecution. For probable cause tests, counsel should argue that the DD Form 2624 is, above all, a chain of custody document lacking in the “formality or solemnity” of a document prepared for evidentiary purposes.62 A claim that UPLs and forensic toxicologists must ultimately testify about their involvement in a drug test is a red herring that does not change the primary purpose of the DD Form 2624.63 With proper preparation before trial, the UPL and forensic toxicologist should have little difficulty laying the foundation for the business records hearsay exception and addressing testimonial hearsay concerns.
The Expert in Forensic Chemistry
The linchpin for the government’s case-in-chief is the expert testimony of a forensic toxicologist. The forensic toxicologist will account for receipt of the accused’s urine specimen by the drug-testing laboratory, describe initial screening and testing of the urine, explain machine-generated reports, and ultimately offer an expert opinion about the substance found in the accused’s urine. The forensic toxicologist must testify that the substance in question is not naturally produced in the body, that the substance is nothing other than the substance identified in the specification, that the substance is of sufficient concentration to demonstrate knowing and wrongful use, and that the testing was reliable both in methodology and execution.64
Qualifying the Expert Witness
Trial counsel must first qualify the witness as an expert in forensic toxicology. Counsel should begin by asking the witness to describe the field of forensic toxicology in general terms. The response should include a description of the witness’s familiarity with the study of how chemicals interact with the body—pharmacology—and the study of how the body interacts with chemicals—pharmacokinetics. The witness may then testify about their qualifications in forensic toxicology with sufficient detail to persuade the fact finder to rely on the witness’s testimony concerning the testing of the accused’ urine specimen. Next, the witness should discuss their undergraduate education and graduate work related to forensic toxicology. Then, the witness should testify to professional experience and any peer-reviewed65 publications relevant to forensic toxicology. Counsel should emphasize any graduate work, publications, certifications, or professional experience involving the testing methods used to test the accused’s urine specimen. Finally, the witness should testify about any other education, training, credentials, or experience relevant to forensic toxicology and documented in their curriculum vitae.
Practitioners must be aware that the military judge may sustain a hearsay objection if trial counsel offers the curriculum vitae into evidence.66 The military judge may certainly consider the curriculum vitae in deciding whether to recognize the witness as an expert,67 but the military judge need not (and likely will not) admit the document into evidence over objection. Trial counsel may ask opposing counsel to stipulate to the admissibility of the curriculum vitae, but trial counsel should not rely on the possibility of a stipulation when preparing the testimony of the forensic toxicologist. Also, consider whether the fact finder will consider live testimony more persuasive than a lengthy curriculum vitae.
After the witness testifies about their education, publications, training, credentials, and work experience relevant to forensic toxicology, trial counsel should ask the military judge to recognize the witness as an expert in the forensic toxicology.
Urine Specimen Intake and the Laboratory Accession Number
Once the military judge recognizes the witness as an expert in forensic toxicology, trial counsel should elicit testimony about the urine specimen intake procedures for the lab that tested the accused’s urine.68 To that end, DoD Instruction (DoDI) 1010.16 standardizes specimen intake procedures for DoD Forensic Toxicology Drug Testing Laboratories.69 The forensic toxicologist’s testimony should describe delivery of urine specimen boxes via authorized courier to the receiving and processing section of the laboratory. The receiving and processing technician will inspect boxes for damage, broken seals, leakage, or other discrepancies that might affect chain of custody or suggest contamination of the urine specimens. The technician will then review the documentation accompanying the specimens to ensure that the information found on the DD Form 2624 matches the information found on the bottles.
After this initial inspection, the technician must document any “deviation in the proper submission of a specimen or accompanying documentation”—otherwise called a “discrepancy.”70 The technician will not submit specimens with fatal discrepancies for further testing. The forensic toxicologist should explain any non-fatal discrepancies documented in the laboratory documentation packet. Counsel should ensure that the forensic toxicologist explains why the non-fatal discrepancy does not undermine the reliability of the forensic testing.
After accounting for any discrepancies documented during intake, the forensic toxicologist should discuss the assignment of a LAN. The LAN is an anonymous identifier unique to an individual urine specimen. The intake technician will place a sticker with the LAN on the portion of the DD Form 2624 that pertains to the corresponding urine specimen. The forensic toxicologist should testify that all other documentation generated by the laboratory uses only the LAN to identify and track the urine specimen.
Counsel should ask the forensic toxicologist foundational questions to satisfy the “business records” hearsay exception for the DD Form 2624.71 The foundation includes testimony about when information is recorded on the DD Form 2624, whether the person who recorded the information has knowledge of that information, that that form is kept in the course of a regularly conducted activity by the laboratory, and that recording information on the form is a regular practice of the laboratory. Counsel should establish that the forensic toxicologist is a “qualified witness”72 to sponsor the DD Form 2624 as a business record by discussing their familiarity with the form and how frequently they use or review it. Finally, trial counsel should offer the DD Form 2624 into evidence.73
After receipt and processing, the technician will move the urine specimen into temporary storage to await testing. “Temporary storage” is a generic term for all urine storage at the laboratory.74 The forensic toxicologist should describe the conditions of storage and explain how the conditions of storage do not cause any forensically significant degradation of controlled substances in the urine specimen. The forensic toxicologist should also explain that metabolization of controlled substances in a urine specimen does not continue after urine leaves the body. Similarly, the forensic toxicologist should explain that the concentration of a controlled substance or metabolite would not spontaneously elevate during temporary storage. Ultimately, this testimony should exclude the possibility of tampering or confusion of samples. At this point in the forensic toxicologist’s testimony, the fact finder should understand that the urine specimen is identical to the urine that left the accused’s body.
The forensic toxicologist should explain that laboratory technicians test small samples called “aliquots” extracted from a urine specimen bottle. Technicians remove aliquots from the urine specimen bottle by pouring urine from the bottle into a test tube. Technicians do not insert pipettes or other foreign objects into the bottle. This technique minimizes any risk that a potential adulterant might enter the bottle.
After describing the removal of an aliquot from the bottle, the forensic toxicologist should explain use of immunoassay (IA) testing as a preliminary test to screen out negative urine specimens and identify “presumptively positive” specimens for further testing. Immunoassay testing only detects approximate levels of controlled substances and does not offer scientifically conclusive results. Department of Defense Forensic Toxicology Drug Testing Laboratories (FTDTL) uses IA testing to identify “presumptively positive” urine specimens for more intensive gas chromatography mass spectrometry (GC/MS) testing to confirm the presence of a substance in the urine. The FTDTL discards urine specimens that are not presumptively positive.
Testimony concerning presumptive testing should not require reference to laboratory documents and should not be especially detailed.75 The forensic toxicologist’s discussion of IA testing is necessary only to account for all handling of the urine and to exclude any possibility of contamination at the laboratory.
Laboratory technicians submit presumptively positive urine specimens for a second “confirmatory” test. The FTDTL commonly uses GC/MS to test a urine specimen for the substance that triggered the presumptively positive IA result.76 The forensic toxicologist should describe how the confirmatory testing equipment accurately detects substances on a molecular level and provides precise measurements about the concentration of a substance in a urine specimen. The forensic toxicologist must explain calibration of the equipment by measuring an internal standard77 of the controlled substance for which the urine specimen was presumptively positive. Note that the FTDTL inserts the internal standard in the same batch of presumptive positive specimens in order to create a blind quality control system. The forensic toxicologist must next explain the use of inert “blanks” to clean equipment between testing of each specimen. In sum, this explanation must account for the accuracy, margin of error, reliability, and scientific validity of the confirmatory testing methodology.
Once the forensic toxicologist establishes the reliability of the testing methodology and equipment, they may discuss testing of the accused’s urine specimen by referencing data generated by the testing equipment. Gas chromatography mass spectrometry equipment generates a “quantitation report” with graphs and other data representing measurements of the substances tested. The laboratory documentation packet likely contains multiple quantitation reports showing testing of inert blanks, the chemical exemplar, and the accused’s urine specimen. Trial counsel need not admit the quantitation reports for the blanks and internal standards into evidence.
However, trial counsel should admit the quantitation report for the accused’s urine specimen into evidence. While the fact finder is unlikely to glean useful information from the quantitation report alone, it will be useful for the forensic toxicologist to explain the concentration of the substance found in the urine. First, counsel must have the forensic toxicologist authenticate the quantitation report by explaining the nature of the report and how they recognize it.78
Trial counsel must next address potential hearsay on the document by asking the forensic toxicologist to identify the portions of the quantitation report that are wholly machine generated and distinguishing them from those portions which require human input.79 The forensic toxicologist must explain the portions that require human input and lay an appropriate foundation for an applicable hearsay exception.80 As an example, the forensic toxicologist should be able to explain that the LAN appears on the quantitation report for internal control purposes. In contrast, the concentration of the controlled substance as shown in nanograms per milliliter is generated by the GC/MS equipment.
Finally, counsel should account for any initials, stamps, or other markings on the document. Quality reviewers often certify the results of a confirmatory test by stamping or initialing the document. If defense counsel objects to such markings as impermissible hearsay, trial counsel should explain that they are not offered for the truth of the matter asserted—the accuracy of the test results—and are accordingly not hearsay.81
After the forensic toxicologist authenticates the quantitation report and accounts for potential hearsay on the documents, trial counsel should offer the document into evidence. Once admitted into evidence, counsel should publish the quantitation report in a manner that allows the forensic toxicologist to point to specific portions of the document during the remainder of their testimony.82
At this point, the witness should have discussed intake of the accused urine specimen, assignment of a LAN to that specimen, temporary storage, IA testing, and GC/MS testing. Trial counsel should next elicit an expert opinion about the nature of the substance found in the urine specimen bearing the LAN related to the accused’s identifying information.83
The forensic toxicologist should begin by verifying that the LAN found on the quantitation report is the same as the LAN next to the accused’s DoD identification number on the DD Form 2624. Using a projector or other in-court publication means, the witness should identify the LAN on each document. Trial counsel should next ask the witness whether they know of any breaks in the chain of custody between intake and testing of the specimen.
The forensic toxicologist should then briefly explain the data on the quantitation report. After this explanation, counsel must ask the witness to provide an expert opinion about the nature and concentration of the substance in the urine specimen. If the witness identifies a substance not specifically identified in the specification, they should explain that the substance is either a metabolite or a derivative of the controlled substance listed in the specification.
The witness should conclude by testifying “(1) that the [substance or] metabolite is not naturally produced by the body [and is not] any substance other than the drug in question; (2) that the cutoff level and reported concentration are high enough to reasonably discount the possibility of unknowing ingestion and to indicate a reasonable likelihood that the user at some time would have experienced the physical and psychological effects of the drug, and (3) that the testing methodology reliably detected the presence and reliably quantified the concentration of the drug or metabolite in the sample.”84
Practice Point: Certifying Scientists85
While the ideal witness to explain testing of the urine sample is the analyst who performed the confirmatory testing, trial counsel may offer the expert opinion of another forensic toxicologist who did not personally test the urine sample but had some personal—albeit indirect—connection to the test at issue. Testing laboratories are often unable to provide the analyst who personally conducted the testing. Forensic Toxicology Drug Testing Laboratories administrators often assign a certifying scientist as a substitute for the analyst who actually performed the tests. A FTDTL certifying scientist performs a supervisory role by reviewing and certifying all analytical data and chain of custody documents for testing performed by the subordinate analysts. Practitioners should ensure that a certifying scientist’s qualifications enable them to deliver an appropriate expert opinion, as the certifying scientist may not be a forensic toxicologist. A FTDTL certifying scientist may not be in the actual supervisory chain of the analyst who conducted testing, but they are nevertheless familiar with procedures applicable to all analysts at the FTDTL.
A certifying scientist may offer “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.”86 Practitioners should consider crafting the direct examination of the certifying scientist with a focus on the quantitation report and other laboratory documentation as “[e]vidence describing a process or system and showing that it produces an accurate result.”87 Similarly, the certifying scientist is an appropriate witness to authenticate the quantitation report and other laboratory documentation so long as they have some knowledge that those documents are what they purport to be.88 Counsel considering offering the testimony of a certifying scientist must thoroughly read and understand United States v. Katso.89
Practice Point: The Laboratory Documentation Packet
The forensic toxicologist is the appropriate witness through which to admit the DD Form 2624 and the quantitation report. The forensic toxicologist may also be an appropriate witness to admit other portions of the laboratory documentation packet. A laboratory documentation packet typically consists of a DD Form 2624, temporary storage documents, intra-laboratory chain of custody documents, screening worksheets, quality control reports, presumptive testing reports, data reviews, and quantitation reports for blanks, internal standards, and urine specimens.
Admitting other portions of the laboratory documentation packet into evidence is generally not necessary to establish the elements of wrongful use of a controlled substance. First, most of these documents are not readily comprehensible to laypersons and require explanation by a person with appropriate knowledge, expertise, or training. Second, authentication and establishing appropriate hearsay exceptions for statements in the various reports may add hours to the length of the forensic toxicologist’s direct examination. Similarly, referencing voluminous documentation during the forensic toxicologist’s testimony may cause the panel to lose interest or become confused.
Third, the entire laboratory documentation packet is more likely to draw objections—particularly to any markings purporting to certify results or verify accuracy.90 Successful objections may require trial counsel to redact portions of the reports and offer those redacted copies into evidence. Redacting documents in the middle of trial may unnecessarily delay proceedings and frustrate the panel, the military judge, and support staff. Moreover, offering redacted documents into evidence is far from ideal and may leave the fact finder with unanswered questions about the redacted material.
Practitioners should weigh these concerns against any benefits of admitting most or the entire laboratory documentation packet. Counsel seeking to admit the entire packet should have specific, articulable reasons for doing so and should consider filing a motion to pre-admit such documentation before trial.
Practice Point: Low Concentration Levels
As discussed previously in Expert Opinion, a high concentration of a prohibited substance demonstrates “a reasonable likelihood that the user at some time would have experienced the physical and psychological effects of the drug can be evidence of knowing and wrongful use.”91 Likewise, low concentrations present a challenge to showing knowing and wrongful use. The concentration of a prohibited substance is low if it is near the “cutoff concentration” established in DoDI 1010.16, Table 2.92 Before considering criminal charges for low concentrations of a controlled substance, practitioners must consult a forensic toxicologist to discuss direct or circumstantial evidence that might demonstrate knowing and wrongful use. Two essential facts that may demonstrate knowing and wrongful use are the peak concentration of the prohibited substance and the rate of elimination for that substance. Peak concentration is the highest concentration of a substance after ingestion and typically occurs shortly after ingestion.93 Rate of elimination is the rate that a substance clears the body and is often expressed in terms of the substance’s half-life. Once a person ingests a substance, the concentration of that substance in the body will rise until it arrives at a peak concentration. After arriving at that peak concentration, the concentration of that substance will decrease in accordance with the substance’s rate of elimination.
A forensic toxicologist cannot testify about whether the concentration on the quantitation report represented the peak concentration of the substance in the accused’s urine. However, a relatively low peak concentration of a controlled substance with a short half-life strongly suggests more recent ingestion of that substance. For an early morning urinalysis, a low concentration undercuts a claim of innocent ingestion where the accused would have been asleep during the purported window of ingestion. A subsequent response that the accused (innocently) ingested the substance the day before supports an inference that the peak concentration was actually higher than that shown on the quantitation report. In this example, such an inference may be sufficient to “reasonably discount the possibility of unknowing ingestion[.]”94 Counsel seeking to discount the possibility of innocent ingestion in this manner should prepare relevant hypothetical questions to ask during direct examination of the forensic toxicologist.95
Evidence of the Accused’s DoD Identification Number
As discussed above, the fact finder must be able to connect the tests performed by the forensic toxicologist to the urine specimen provided by the accused. The testimony of the UPL and the observer along with the accused’s initials on the urine specimen bottle label is generally sufficient to make this connection. However, trial counsel may wish to introduce evidence clearly showing the accused’s DoD identification number. The accused’s enlisted record brief (ERB) or officer record brief (ORB) displays this information in a readily admissible format.96 Counsel may also consider requesting that the commander or first sergeant photocopy both sides of the accused’s common access card. This photocopy may then be admitted into evidence after the commander or first sergeant authenticates it. Finally, trial counsel may simply ask the commander or first sergeant to compare the DoD identification number on the DD Form 2624 to the accused’s ERB/ORB before trial. During direct examination of the commander or first sergeant, trial counsel may show the witness the DD Form 2624 and ask whether the DoD identification number belongs to the accused.
The Urine Specimen
A forensic toxicologist may ask whether trial counsel seeks to admit the actual urine specimen into evidence. Admitting the urine specimen into evidence shows that the accused personally handled the bottle while writing his or her initials on the label.97 Admitting the urine specimen accordingly tends to exclude the possibility of tampering or confusion of samples. Evidence that excludes tampering or confusion of samples offers the fact finder a clearer view of the forensic toxicologist’s opinion that the data generated by the GC/MS equipment shows a prohibited substance in the accused’s urine.
The UPL is usually the appropriate witness to authenticate the urine specimen. As discussed previously in Preparing and Conducting the Urinalysis, the UPL should have already testified that they personally received the urine specimen from the accused. Bear in mind that the UPL likely did not handle the urine specimen bottle after delivering it to the drug testing coordinator. The UPL must accordingly be able to identify the bottle as the one that the accused provided. To authenticate the urine specimen bottle, they should rely on distinctive markings found on the bottle such as the base area code, administrative data, and the accused’s initials.98 Counsel may treat the accused’s initials as evidence that they adopted other statements on the label as a way to exclude the label from the rule against hearsay.99 However, counsel should still use the UPL or the drug-testing coordinator to lay the foundation for the business records hearsay exception under MRE 803(6) for other statements found on the bottle label. Counsel may offer the urine specimen into evidence after the forensic toxicologist accounts for broken tamper evident tape or any other changes to the condition of the bottle.
Note that the military judge will require the court reporter to include a photograph of the specimen bottle as a substitute for the record of trial.100 After inclusion of a photographic substitute for the record, the forensic toxicologist may retain custody of the specimen and return it to storage at the FTDTL after conclusion of trial.
Trial counsel who do not offer the urine specimen into evidence due to destruction of the specimen or for some other strategic reason may face an objection to the forensic toxicologist’s opinion. Opposing counsel may claim that the urine specimen must be admitted into evidence because it is the basis of the forensic toxicologist’s opinion. This claim misinterprets the rules governing expert testimony. As a preliminary matter, the basis of this opinion are the data shown on the quantitation report—not the urine itself.101 More to the point, MRE 703 does not require the underlying basis of the forensic toxicologist’s opinion to be admitted into evidence.102 A brief reference to MRE 703 should be sufficient to overcome such an objection.
Evidence of Crimes, Wrongs, or Other Acts
Circumstantial evidence is often useful to prove knowing and wrongful use. However, practitioners should be cautious in offering evidence of crimes, wrongs, or other acts. Such evidence may be admissible under MRE 404(b) to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”103 Counsel offering such evidence must articulate how the proffered evidence actually proves one of these allowable purposes. For example, evidence that the accused consumed a $50 “detoxification drink” that she received from her brother who was a drug dealer may show knowledge and “consciousness of guilt[.]”104 Practitioners who cannot clearly articulate an allowable purpose under MRE 404(b) risk introducing impermissible propensity evidence.105
Evidence of prior drug use is particularly difficult to offer for an appropriate purpose. For example, evidence that a summary court-martial previously convicted the accused of using the same substance is likely inadmissible without a more substantial connection to the accused’s design, intent, absence of mistake, or claim of innocent ingestion. Put differently, a “fact finder may not infer that, because the [accused] had used drugs on another occasion, he is guilty of the charged offense.”106 Evidence “offered to prove a fact by means of a design or pattern must be ‘significantly similar’ to the charged act.”107 Counsel considering offering evidence of other drug use under MRE 404(b) must be able to show considerable similarity between any underlying facts, including time, place, method of ingestion, presence of other persons, and reason—if any—for ingesting the prohibited substance.
Should the military judge exclude evidence of the accused’s prior drug use offered under MRE 404(b), trial counsel may consider using such evidence to cross-examine a defense witness who testifies about a pertinent character trait of the accused. Impeachment of a defense witness with specific instances of the accused’s conduct under MRE 405(a) is distinct from evidence offered by the Government under MRE 404(b).108 As an example, a defense witness who testifies that the accused has a character trait for sobriety or law abiding behavior may open the door to inquiry about the accused’s prior drug use.109 Defense counsel are unlikely to intentionally elicit such testimony during direct-examination of defense witnesses, but a talkative defense witness may nevertheless open the door to cross-examination about the accused’s prior drug use. For panel cases, practitioners who anticipate impeachment using the accused’s prior drug use should request an Article 39a, UCMJ, session outside the presence of the members.
Exclusion of Evidence
Diligent trial counsel and well-prepared witnesses should have little difficulty in establishing the admissibility of the DD Form 2624, GC/MS quantitation report, and urine specimen. However, exclusion of one or more of these pieces of evidence should not preclude an otherwise appropriately offered expert opinion “(1) that the [substance or] metabolite is not naturally produced by the body [and is not] any substance other than the drug in question; (2) that the cutoff level and reported concentration are high enough to reasonably discount the possibility of unknowing ingestion and to indicate a reasonable likelihood that the user at some time would have experienced the physical and psychological effects of the drug, and (3) that the testing methodology reliably detected the presence and reliably quantified the concentration of the drug or metabolite in the sample.”110 Indeed, MRE 703 states that underlying facts “need not be admissible for the opinion to be admitted.”111 Nevertheless, if the military judge excludes the DD Form 2624, GC/MS quantitation report, or urine specimen, trial counsel should take special care to elicit detailed testimony about the information found on the excluded evidence in an effort to connect the forensic toxicologist’s opinion to the urine provided by the accused.
Prosecuting a violation of Article 112a, UCMJ, for wrongful use of a controlled substance can be a highly technical endeavor requiring substantial study and preparation. This article may guide pretrial preparation, but practitioners must actually develop a trial plan specific to the unique facts of their case. Counsel must accordingly work with the UPL, forensic toxicologist, and other witnesses to understand relevant administrative procedures and scientific methods. Practitioners must also thoroughly understand applicable hearsay exceptions to clearly articulate theories of admissibility for the documentary evidence they seek to admit. Trial counsel with a well-developed trial plan will place the fact finder in the best position to consider all relevant evidence and to reach a verdict clearly warranted by that evidence. TAL
1. 10 U.S.C. § 912a (2018).
2. 541 U.S. 36 (2004).
3. U.S. Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook para. 3a-36-2 (electronic version 2.8.1) [hereinafter Benchbook].
4. 10 U.S.C. § 912a(b)(2).
5. Benchbook, supra note 3, para. 3a-36a-2.
6. “[L]aboratory results of urinalysis coupled with expert testimony explaining them constituted sufficient evidence” to support a finding of wrongful use of marijuana. United States v. Harper, 22 M.J. 157, 159 (C.M.A. 1986).
7. In this context, a metabolite is a chemical compound “produced only by the body’s reaction or chemical breakdown” of a controlled substance. Id. at 161.
8. Id. at 159.
9. “[W]here scientific evidence is relied upon to prove the use of marihuana, the Government may not presume that the judge or members are experts capable of interpreting such evidence.” United States v. Murphy, 23 M.J. 310, 312 (C.M.A. 1987).
10. Harper, 22 M.J. at 162.
11. See infra Identifying the Controlled Substance for a list of substances named in Article 112a, UCMJ.
12. 21 U.S.C. § 812 (2018).
13. 10 U.S.C. § 912a(b)(2) (2018).
14. See 21 U.S.C. § 812 (2018) and accompanying schedules under 21 C.F.R. §§ 1308.11 et. seq.
15. Manual for Courts-Martial, United States A23-12 (2016) (Article 112a analysis). The drafters commented that “most commanders and some legal offices do not have ready access” to the “controlled substances list as modified by the Attorney General in the Code of Federal Regulations[.]” Id. This anachronistic comment is unlikely to excuse improper identification of a prohibited substance.
16. 10 U.S.C. § 912a(b)(1).
17. A sample specification under the first clause for marijuana reads as follows: “In that PFC John Doe, did, at or near Fort Location, between on or about 1 January 2019 and 6 January 2019, wrongfully use marijuana.”
18. See infra The Expert in Forensic Chemistry, for a detailed discussion about eliciting such an expert opinion.
19. Manual for Courts-Martial, United States pt. IV, ¶ 50.c.(1) (2019) [hereinafter 2019 MCM].
20. An example of a specification under the second clause for phenobarbital may read as follows: “In that PFC John Doe, did, at or near Fort Location, between on or about 1 January 2019 and 6 January 2019, wrongfully use phenobarbital, a controlled substance.”
21. United States v. Bradley, 68 M.J. 556 (A. Ct. Crim. App. 2009).
22. An example of a specification under the third clause for 3,4-Methylenedioxymethamphetamine (commonly known as ecstasy or MDMA) may read as follows: “In that PFC John Doe, did, at or near Fort Location, between on or about 1 January 2019 and 6 January 2019 wrongfully use 3,4-Methylenedioxymethamphetamine, a Schedule I controlled substance.”
23. Bradley, 68 M.J. at 557 (“the government must either introduce evidence that the purported substance is listed in 21 U.S.C. § 812 . . . or request the trial court take judicial notice of that fact”). While judicial notice is the most reliable way to introduce such evidence, the forensic toxicologist may testify that the substance in question is a controlled substance under an applicable schedule of the Controlled Substance Act.
24. Counsel should use an official copy of the Act as published through the U.S. Government Publishing Office on https://www.govinfo.gov/.
25. See Benchbook, supra note 3, para. 3a-36a-2, n.7.
26. See Bradley, 68 M.J. at 557.
27. U.S. Dep’t of Army, Reg. 600-85, The Army Substance Abuse Program para. 4-2b (28 Nov. 2016) [hereinafter AR 600-85] (the Army Drug Testing Program “is a battalion commander’s program normally executed at the company level”).
28. Id. para. 4-5a.
29. As an example, a command policy requiring the testing of all Soldiers returning from lengthy periods of leave. See AR 600-85, supra note 27, para. 4-5a(2).
30. AR 600-85, supra note 27.
31. For example, a probable cause test may be appropriate where the accused “appeared abnormally agitated and related a bizarre story about some ‘guys trying to kill him,’ and that he had been ‘digging for diamonds’ in his neighbor’s yard.” United States v. Harris, 65 M.J. 594, 596 (N-M Ct. Crim. App. 2007).
32. Army Center for Substance Abuse Program, Unit Prevention Leader Handbook Version 3 (Dec. 16, 2009).
33. U.S. Dep’t of Def., Form 2624, Specimen Custody Document-Drug Testing (Nov. 2014) [hereinafter DD Form 2624].
34. See AR 600-85, supra note 27, para. 9-6a (complete list of qualifications).
35. AR 600-85, supra note 27, Appendix E.
36. Supplies for testing include “(1) The DOD prescribed urine specimen bottles with boxes. (2) Optional wide mouth collection cup. (3) Tamper evident tape. (4) Specimen bottle labels. (5) Unit ledger [also called a testing register or ledger]. (6) DD Forms 2624. (7) Disposable rubber gloves. (8) Disinfectant for disinfecting specimen collection area. (9) Absorbent pads, blue ink pens, black ink pens, and AAA-162 (unit personnel accountability report).” AR 600-85, supra note 27, para E-4 (emphasis removed).
37. Id. para. 4-9d (1).
38. Id. para. 4-9d (2).
39. Id. para. E-5w.
40. See Benchbook, supra note 3, para. 3a-36a-2, n.8 (“Military judges, however, should exclude drug test results if there has been a substantial violation of regulations intended to assure reliability of the testing procedures.”). See also United States v. Strozier, 31 MJ 283 (C.M.A. 1990).
41. See id. (requiring the following instruction for “‘technical’ deviations from governing regulations which establish procedures for collecting, transmitting, or testing urine samples”: “Evidence has been introduced that the government did not strictly comply with all aspects of (Army Regulation 600-85) (__________) governing how urine samples are to be (collected) (transmitted) (and) (tested). In order to convict the accused, the evidence must establish the urine sample originated from the accused and tested positive for the presence of (__________) without adulteration by any intervening agent or cause. Deviations from governing regulations, or any other discrepancy in the processing or handling of the accused’s urine sample, may be considered by you in determining if the evidence is sufficiently reliable to establish that the accused used a controlled substance beyond a reasonable doubt.”).
42. See AR 600-85, supra note 27, para. E-6f.
43. See supra note 36.
44. See United States v. Gonzalez, 37 M.J. 456 (C.M.A. 1993) (chain of custody is not “broken” despite a witness’s inability to recall details of urinalysis).
45. Habit evidence is behavior that is “regular, consistent, and specific” performed with “invariable regularity” and is “admissible to show that an individual’s conduct on a specific occasion was consistent with his conduct on past occasions.” 1 Stephen A. Saltzburg et al., Military Rules of Evidence Manual § 406.02 (7th ed. 2011).
46. The Military Judges’ Benchbook does not contain a sample instruction for habit evidence. A sample special instruction requested under Rule for Court-Martial (RCM) 920(c) should read as follows: “Evidence has been introduced that (UPL’s name) routinely (insert evidence of routine). Evidence of a person’s habit or an organization’s routine practice may be considered to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.”
47. 2019 MCM, supra note 19, Mil. R. Evid. 901(b)(1) (testimony from a witness with knowledge “that an item is what it is claimed to be” is evidence that satisfies the authentication requirement).
48. See infra Chain of Custody Documentation for further discussion of admitting chain of custody documentation.
49. See 2019 MCM, supra note 19, Mil. R. Evid 803(6).
50. AR 600-85, supra note 27, para. 1-7a.
51. See infra Chain of Custody Documentation for further discussion regarding testimonial hearsay.
52. See Benchbook, supra note 3, para. 7-20 (“The ‘chain of custody’ of an exhibit is simply the path taken by the sample from the time it is given until it is tested in the laboratory. In making your decision in this case you must be satisfied beyond a reasonable doubt that the sample tested was the accused’s, and that it was not tampered with or contaminated in any significant respect before it was tested and analyzed in the laboratory. You are also advised that the government is not required to maintain or show a perfect chain of custody. Minor administrative discrepancies do not necessarily destroy the chain of custody.”).
53. AR 600-85, supra note 27, para. 4-13b.
54. See id. para. E-10 (allowing for only one door to a specimen storage room, requiring windows to be “covered with steel or iron bars or steel mesh”).
55. Id. para. 4-13f.
56. 2019 MCM, supra note 19, Mil. R. Evid. 803(6).
57. See, e.g., United States v. Console, 13 F.3d 641, 657 (3d Cir. 1993) (“the term ‘other qualified witness’ should be construed broadly, and that a qualified witness need not be an employee of the record-keeping entity so long as he understands the system”) (internal citations and quotations omitted); United States v. Ramer, 883 F.3d 659 (6th Cir. 2018) (a government investigator was a qualified witness for purposes of a hearsay exception for bank records).
58. See AR 600-85, supra note 27, para. E-7c (“Each change of custody must be annotated at the time of the occurrence.”).
59. United States v. Blazier (Blazier I), 68 M.J. 439, 442 (C.A.A.F. 2010).
60. United States v. Tearman, 72 M.J. 54, 59-61 (C.A.A.F. 2013). See also Bullcoming v. New Mexico, 564 U.S. 647, 659 (2011) (“To rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.’” (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
61. AR 600-85, supra note 27, para. 4-5a.
62. See Tearman, 72 M.J. at 59-61. The prohibition against testimonial hearsay normally excludes “formal, affidavit-like” documents obviously created for accusatory purposes. United States v. Sweeney, 70 M.J. 296, 299 (C.A.A.F. 2011).
63. Under AR 600-85 paragraph 4-9a, UPLs and observers “must be prepared to testify about their actions in court[.]” AR 600-85, supra note 27, para 4-9a. This statement does not relate specifically to the primary purpose of the DD Form 2624 or to the aims of the drug-testing program in general. Army Regulation 600-85, chapter 4, identifies manifold purposes for the drug-testing program, including maintaining Army values, health and welfare, safety, and readiness. Id. ch. 4.
64. See United States v. Campbell, 50 M.J. 155, 160 (C.A.A.F. 1997).
65. Counsel should learn whether the witness authored any articles or studies published in a journal that is not subject to peer review. While such publications may support qualification of the witness as an expert, peer review more clearly demonstrates the publication’s degree of acceptance within the scientific community. Non-peer reviewed publications pose greater risk of containing material that is not generally accepted within the scientific community. Opposing counsel are accordingly less likely to successfully use peer-reviewed publication to challenge the witness’s qualification as an expert or to undermine the expert witness’s credibility on cross-examination.
66. Out-of-court statements offered for the truth of the matter asserted are hearsay and, as such, are generally inadmissible. 2019 MCM, supra note 19, Mil. R. Evid. 801(c), 802. The curriculum vitae is a document (i.e., a statement) made out of court and offered to prove the matters contained therein (i.e., the witness’s education and qualifications). The exceptions to the rule against hearsay under Military Rule of Evidence (MRE) 803 are not likely to apply.
67. Under MRE 104(a), the “military judge is not bound by evidence rules” in deciding “any preliminary question about whether a witness is available or qualified, a privilege exists, a continuance should be granted, or evidence is admissible.” 2019 MCM, supra note 19, Mil. R. Evid. 104(a). While the military judge may consider such inadmissible evidence in deciding a witness’s qualifications, MRE 104 is not an independent theory of admissibility. Id.
68. The forensic toxicologist is not likely to have observed receipt and processing of the accused’s urine specimen. The forensic toxicologist may nevertheless testify about the laboratory’s standard procedure. See infra Practice Point: Certifying Scientists for discussion regarding the testimony of an expert that did not personally test the accused’s urine specimen.
69. U.S. Dep’t of Def., Instr. 1010.16, Technical Procedures for the Military Personnel Drug Abuse Testing Program enclosure 4, para. 8 (27 Feb. 2017) [hereinafter DoDI 1010.16]. As discussed in the introductory paragraph, this article focuses on testing by DoD drug-testing centers. Tests conducted by non-DoD drug-testing laboratories may or may not involve similar intake and testing procedures. For such tests, practitioners should make a pointed effort to seek the forensic toxicologist’s assistance in becoming familiar with the intake and testing procedures in place at a non-DoD drug-testing laboratory. Trial counsel should also consider asking a DoD forensic toxicologist to review non-DoD test results and highlight any areas of concern.
70. DoDI 1010.16, supra note 69, Glossary. Discrepancy codes are established by the Director of DoD Drug Testing Policy and Programs. Id. para. 8.a. A list of discrepancy codes is not publically available, but counsel may request the list from a FTDTL forensic toxicologist.
71. 2019 MCM, supra note 19, Mil. R. Evid. 803(6).
72. See supra note 53.
73. In order to avoid a relevance objection, consider redacting any personally identifiable information for other urine specimens documented on the DD Form 2624 or marking a separate redacted copy as a backup exhibit.
74. The FTDTL retains urine specimens for one year, but trial counsel may request retention of specimens past one year. Use of the actual urine specimen during the government’s case-in-chief is generally unnecessary, so trial counsel should request retention past one year only upon defense request or where particular necessity requires retention. Destruction of a urine specimen in accordance with established procedures is appropriate where the specimen has no “apparently exculpatory” value and the defense did not request preservation. See generally United States v. Garries, 22 M.J. 288, 293 (C.M.A. 1986) (finding no prejudice in the destruction of evidence with no “apparently exculpatory” value, but suggesting that “the better practice is to inform the accused when testing may consume the only available samples”).
75. Immunoassay (IA) testing involves principles that are beyond the understanding of laypersons and in-depth testimony may bore or confuse the fact finder. For discussion of the scientific principles involved in IA testing, see Captain David E. Fitzkee, Prosecuting a Urinalysis Case: A Primer, Army Law., Sept. 1988, at 13.
76. This article references gas chromatography mass spectrometry (GC/MS) testing only. The FTDTL may also perform liquid chromatography tandem mass spectrometry (LC/MS/MS) as a confirmatory test. Although LC/MS/MS testing and GC/MS testing use distinct scientific principles to detect substances, the forensic toxicologist should not testify in detail about those principles. While this section should apply to other types of confirmatory testing without substantial change, counsel should consult with the forensic toxicologist to account for significant facts specific to that type of testing.
77. The chemical standard is a verified sample of the controlled substance in question.
78. To authenticate evidence, the witness need only provide “sufficient evidence” that the “item is what it is claimed to be.” 2019 MCM, supra note 19, Mil. R. Evid. 901(b)(1).
79. Military Rule of Evidence 803(6)(E) exempts “forensic laboratory reports” from the rule against hearsay. 2019 MCM, supra note 19, Mil. R. Evid. 803(6)(E). Further, the LAN should not be considered a testimonial statement where created for purposes of “internal control, not to create evidence[.]” United States v. Tearman, 72 M.J. 54, 59 (C.A.A.F. 2013).
80. See 2019 MCM, supra note 19, Mil. R. Evid. 803(6). See also Tearman, 72 M.J. at 59 (holding that chain of custody information is not testimonial where created for purposes of “internal control, not to create evidence”).
81. Trial counsel may attempt to characterize these markings as business records. However, the military judge will likely consider such a characterization a “‘conduit’ for the testimonial statements of another.” United States v. Katso, 74 M.J. 273, 275 (C.A.A.F. 2015) (quoting United States v. Blazier (Blazier II), 69 M.J. 218, 225 (C.A.A.F. 2010)). Nevertheless, trial counsel should prepare a separate copy of the quantitation report with the markings redacted in the event the military judge sustains the defense objection. Counsel should have the court reporter mark this redacted quantitation report as a prosecution exhibit before trial begins.
82. Courtrooms differ widely in projection equipment. Trial counsel should verify the functionality of projection equipment once before trial and again immediately before the forensic toxicologist testifies. Counsel may also print copies of the quantitation report for distribution to panel members to reference during the forensic toxicologist’s testimony.
83. See generally 2019 MCM, supra note 19, Mil. R. Evid. 702. The forensic toxicologist will use their scientific knowledge to explain use of reliable methods to test the accused’s urine.
84. United States v. Campbell, 52 M.J. 386, 388 (C.A.A.F. 2000) (internal citations and quotations omitted).
85. Avoid using the term “surrogate expert.” A surrogate expert is generally one who did not observe or review the tests in question and may not testify about what the forensic toxicologist who actually performed the tests “knew or observed about the events his certification concerned.” Bullcoming v. New Mexico, 564 U.S. 647, 661 (2011).
86. Katso, 74 M.J. at 282 (quoting Blazier II, 69 M.J. at 226).
87. 2019 MCM, supra note 19, Mil. R. Evid. 901(b)(9).
88. 2019 MCM, supra note 19, Mil. R. Evid. 901(b)(1).
89. Katso, 74 M.J. 273.
90. Markings that certify or approve testing methods and results may be testimonial hearsay. See United States v. Sweeney, 70 M.J. 296, 299, 304 (C.A.A.F. 2011).
91. United States v. Campbell, 52 M.J. 386, 388 (C.A.A.F. 2000).
92. The FTDTL only reports positive results for specimens with a concentration of a prohibited substance equal to or above the cutoff concentration. A specimen with a concentration below the cutoff concentration is considered a negative result. As an example, a urine specimen with a concentration of 90 ng/mL will report as negative because the cutoff concentration for d-amphetamine is 100 ng/mL. DoDI 1010.16, supra note 69, tbl. 2.
93. The timing of peak concentration depends on method of ingestion and numerous physiological factors. Considering the variability of these factors, forensic toxicologists are generally unable to estimate time of ingestion or timing of peak concentration.
94. Campbell, 52 M.J. at 388.
95. “The combination of Rules 702, 703, and 705 enables counsel to use the hypothetical question to assist in the presentation of understandable testimony and to emphasize and highlight such testimony.” Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 702.02 (2018); but see United States v. Markis, No. 20070580, 2009 CCA LEXIS 299, at *6-8 (A.C.C.A. Aug. 18, 2009) (affirming military judge’s refusal to allow the expert witness to answer hypothetical questions calling for an opinion that the accused’s “confessions were merely the product of his suggestibility, as this would ‘usurp the exclusive function of the jury to weigh the evidence and determine credibility’”).
96. The enlisted record brief/officer record brief may be authenticated with a self-proving affidavit generally issued by the U.S. Army Human Resources Command. 2019 MCM, supra note 19, Mil. R. Evid. 902(4a). Such affidavits generally contain language sufficient to satisfy the business records hearsay exception under MRE 803(6). 2019 MCM, supra note 19, Mil. R. Evid. 803(6).
97. Recall that the accused must initial the urine specimen bottle before providing a urine specimen. See Preparing and Conducting the Urinalysis, supra.
98. Testimony about the “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances” is sufficient to authenticate that item of evidence. 2019 MCM, supra note 19, Mil. R. Evid. 901(b)(4).
99. See 2019 MCM, supra note 19, Mil. R. Evid. 801(d)(2)(B) (excluding from the rule against hearsay statements “the [opposing] party manifested that it adopted or believed to be true”. This exclusion is commonly known as “statements by a party opponent.”).
100. U.S. Army Trial Judiciary, Rules of Practice before Army Courts-Martial, Rule 17.5 (1 Jan. 2009).
101. “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” 2019 MCM, supra note 19, Mil. R. Evid. 703. A forensic toxicologist cannot conclusively identify a substance without referencing data generated through scientific testing.
102. The facts relied on by an expert witness need not even be admissible in order to admit an opinion based on those facts. Id.
103. The list of allowable purposes under MRE 404(b) is not exhaustive and may include evidence that does not fit neatly under one of those purposes. United States v. Castillo, 29 M.J. 145, 150 (C.M.A. 1989).
104. United States v. Pope, 69 M.J. 328, 331 (C.A.A.F. 2011).
105. Military appellate courts routinely reverse findings of guilt where trial counsel offer evidence of other drug use without a clearly permissible purpose. See, e.g., United States v. Cousins, 35 M.J. 70, 75 (C.A.A.F. 1992) (trial counsel inappropriately argued, “People who use methamphetamine are just as likely to use cocaine”).
106. United States v. Williams, 37 M.J. 972, 975 (A.C.M.R. 1993); cf. United States v. Ross, 44 M.J. 534 (A.F. Ct. Crim. App. 1996) (finding no error with introducing prior conviction of accused for an “identical offense” of using marijuana to impeach the accused under MRE 609(a)(1)).
107. United States v. Williams, 39 M.J. 758, 760 (A. Ct. Crim. App. 1994).
108. Military Rule of Evidence 405(a) allows “inquiry into relevant specific instances of the person’s conduct” during cross-examination of a character witness. 2019 MCM, supra note 19, Mil. R. Evid. 405(a).
109. “The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.” Michelson v. United States, 335 U.S. 469, 479 (1948); see also United States v. Johnson, 46 M.J. 8 (1997).
110. United States v. Campbell, 52 M.J. 386, 388 (C.A.A.F. 2000).
111. 2019 MCM, supra note 19, Mil. R. Evid. 703.