CAAF today released its second opinion in the case of United States v. Blazier, a case in which NIMJ wrote an amicus brief in support of the defense. The issue in Blazier involved a standard case of an airman popping positive for illegal drugs and the government bringing in Dr. Vincent Papa (a nice guy, even to defense counsel), a laboratory certifying official from the Air Force’s Brooks Lab, as an expert to explain the urinalysis tests and conclusions. Dr. Papa’s testimony came despite the fact that he did not write the reports forming the basis for the conclusions.

Writing for a unanimous court, Judge Ryan first set out that the reports were testimonial evidence which triggers Confrontation Clause rights, although the machine-generated data was not testimonial. Judge Ryan’s words echoed those of Justice Scalia in Crawford v. Washington, making clear that the issue is not one of reliability but of the right to confront one’s accusers. “The right of confrontation is not satisfied by confrontation of a surrogate for the declarant.” Rather, CAAF held that the declarant is one whom the accused has the right to cross-examine.

After establishing that, the Court analyzed the extent of the leeway given to experts in forming their conclusions based on the works of others, noting that experts are not permitted to bootstrap otherwise inadmissible testimonial statements into evidence. Given these limits, the Court found the part of Dr. Papa’s testimony based on his own conclusions from the machine-generated data admissible, while deeming his repetition of the reports’ contents inadmissible hearsay.

Finding error of a constitutional nature, the Court turned to whether the introduction of inadmissible statements was harmless beyond a reasonable doubt, in light of the entire record. On this issue, the Court punted, as the parties had not briefed that specific point, and the Air Force Court had not ruled on it.

(As a side note, a large group of us JAGs happened to be sworn into SCOTUS the day Crawford was published. While the rest of us were admiring the courthouse and identifying justices, the then-Chief Judge of the Air Force Court of Criminal Appeals remarked that it sounded like this was a big case. Indeed.)