Using Melendez-Diaz v. Massachusetts as a Sword

Melendez-Diaz was the recent court case with may keep the government from introducing the urinalysis litigation packets into evidence at trial without an expert from the lab.  Given the difficulty of producing these witnesses, we know that demanding a trial in drug hot cases often keeps the case from ever going to trial.  In a way, you can consider this is using Melendez-Diaz as a sword.  That being said, most prosecutors know that a good court martial defense lawyer has this sword in your scabbard and will use it if needed.  Depending on the circumstances, sometimes a silent threat is more effective than an in-your-face one.  Brandishing this sword unnecessarily may cause the prosecutor to be less reasonable in other things you want.  We believe that an experienced drug court martial attorney should probably use this sword if:

• It is an all-out contest where everything is on the table.
• He has interviewed the analyst and the analyst will be a terrible witness.
• He has reason to believe that crossing the analyst will yield a defense-favorable result, such as when the conclusion is susceptible to more than one interpretation.
• There is something about the type of analysis or the way it was conducted that may cast doubt on its reliability.  (Or, the court martial attorney can call a witness to relay the limitations of a certain process and let the government rely on just a piece of paper.) For example, hair and handwriting comparisons are sometimes not especially convincing and often provide opportunities for meaningful cross.
• It can be utilized as trading material (you stipulate to this, and I will stipulate to that).  Such an agreement must be in writing, made an exhibit, and made known to the military judge.  It might even have to be in a pretrial agreement if there is one.  The issue is avoiding sub rosa agreements.
• It is a close case and money is tight for the command.  It might be that a few extra thousand dollars can make the difference.  Maybe they will push it down to an Article 15?
• The prosecuotor or the military judge forgets to ask if the defense objects to the report before trial and asks for the first time at trial.  Would an objection lead to a government requested delay?  Would the delay be granted? Depends on the judge, the case, and where you are with respect to RCM 707.
• A request for a defense expert has been denied and this is the only chance to challenge evidence worth challenging.

If you have come up hot on a drug urinalysis, whether you used the drugs or not, there are still ways of fighting the charges against you.  Using Melendez-Diaz and other recent cases are only a few of the ways to fight. If you have come up hot and want to fight the charges against you, contact an experienced drug court-martial lawyer as soon as possible.