The recent US Supreme Court decision in Melendez-Diaz v. Massachusetts has significant implications for defendants in the civilian court system and their counterparts in the military justice system-particularly when it comes to alleged violations of the military’s strict zero tolerance drug policy.
Prior to the Court’s decision, the military used documentary or investigative packages to present lab reports during a court martial or other disciplinary hearing against a servicemember with a positive drug result. However, the Melendez-Diaz opinion now calls this practice into question.
In light of this ruling, the military may have to expend greater resources to prosecute urinalysis cases through court martial, or may turn to administrative separation proceedings to avoid the increased burden. Accordingly, servicemembers who are accused of violating the military drug policy may find themselves with more limited options.
Melendez-Diaz v. Massachusetts: Lab Reports are Testimonial Evidence
In Melendez-Diaz v. Massachusetts, the Supreme Court held that lab reports are “testimonial evidence.” Under a prior ruling in Crawford v. Washington, the Supreme Court ruled that admitting “testimonial evidence” made by a witness that the defendant had not been able to cross-examine violated the Sixth Amendment’s Confrontation Clause.
Accordingly, the Melendez-Diaz opinion makes clear that defendants must be given an opportunity to cross-examine the analysts who prepared these lab reports. Otherwise, the defendant’s rights under the Confrontation Clause are violated.
What the opinion does not make clear, however, is which analysts are required to testify in court or if all analysts involved in preparing the lab report must be available to testify.
This is a particularly significant question for urinalysis cases in the military justice system, where 4 to 10 or even more individuals may be involved in collecting and analyzing urine samples. Currently, more than 60,000 urinalysis tests are conducted on servicemembers each month.
Urinalysis Cases and Documentary Packages
To enforce drug policies and ensure compliance by servicemembers, the military has an expansive testing system. Drug testing is most commonly conducted at random, but the military also has the authority to require probable cause testing, unit/command sweep testing and commander-directed testing.
Once a urine sample has been collected, it is sent to one of the military testing facilities across the country to determine if the servicemember has violated the military’s drug policy. If the results are positive, the servicemember will be subject to discipline for violating the military’s policies, which generally has resulted in a court martial.
A court martial is a military court. The court marital process most closely resembles the civilian trial court process. Servicemembers who are subject to a court martial are afforded mostly the same rights as those in the civilian system.
In bringing evidence against a servicemember for failing a urinalysis test, the military has allowed prosecutors to introduce a “documentary” or “litigation” package concerning the lab test results. The documentary package usually includes the lab report itself and in-court testimony from a representative of the lab (sometimes referred to as a “surrogate”) who is familiar with the personnel and procedures of the lab that conducted the testing.
However, it appears that the use of a documentary package in urinalysis cases is no longer constitutional under Melendez-Diaz. While the decision left it unclear which analyst would have to be available for in-court testimony, the military may have to bring in every analyst who was involved in the testing process.
If the military is required to do this, it could greatly increase the time and expense of prosecuting drug cases. Rather than using a documentary package with one person’s testimony, the prosecution may have to bring in everyone who was involved in the collection and evaluation of the urine sample. Labs across the country already are dealing with resource constraints, burdened with heavy workloads and long hours. Requiring the analysts to prepare the reports and to be available for in-court testimony will only further add to this burden and increase the backlog in these overworked laboratories.
The Ultimate Consequences for Servicemembers
Because of this increased burden, Melendez-Diaz also could ultimately result in expanded use of administrative separation proceedings rather than court martial to handle drug cases. Administrative separations are not punitive in nature; these proceedings cover both voluntary and involuntary separations. However, such a result would be at the detriment of servicemembers facing drug charges.
The administrative process has a lower standard of proof (probable cause) and defendants are afforded fewer legal rights and protections than in a court martial. For example, the Military Rules of Evidence (MRE) do not apply in administrative separation proceedings. The right to appeal is limited and only certain types of cases are guaranteed review. Even though some servicemembers will have their cases heard before an administrative review board, the board does not operate like a civilian jury.
Given the great impact the result of an administrative separation proceeding can have on a person’s career, handling urinalysis cases in proceedings with fewer rights and legal protections seems inappropriate at best.
It is too early yet to tell how the military justice system will apply the holding in Melendez-Diaz. Some commentators believe the opinion ultimately will not have much impact on the way urinalysis cases are prosecuted and believe the military will distinguish the Melendez-Diazopinion in a way that allows them to continue using documentary packages. Others, however, fear the ruling could greatly impact the military justice system and increase the costs of prosecuting urinalysis cases.