The Three-Part Test

To determine whether a statement is testimonial, CAAF used a three-part test in U.S. v. Rankin, 64 M.J. 348, 352 (2007). CAAF considered the following:

1. Was the statement at issue elicited by or made in response to law enforcement or prosecutorial inquiry?
2. Did the statement involve more than a routine and objective cataloging of unambiguous matters?
3. Was the primary purpose for making, or eliciting, the statements the production of evidence with an eye toward trial?

CAAF held that though these questions are interrelated, a positive response to all three is not required to find that a statement is testimonial.

In U.S. v. Magyari, 63 M.J. 123 (2006), the court held that random urinalysis laboratory reports are nontestimonial, but the court remained silent on whether all lab reports are nontestimonial.

The U.S. Army Court of Criminal Appeals (ACCA) in U.S. v. Williamson, 65 M.J. 706 (Army Ct. Crim. App. 2007) held that a lab report confirming that the bundles in question were marijuana was testimonial. The ACCA looked at whether the lab tests were prepared at the request of the government while the Soldier was already under investigation for the purpose of discovering incriminating evidence. Central to the court’s rationale was that the request to test was ordered after the Soldier had been arrested and charges were already preferred, thereby meeting the first and third prongs of Rankin.

In U.S. v. Gardinier, 63 M.J. 531 (2006) CAAF held that an alleged sexual abuse victim’s statement to a nurse was testimonial because the form used had “forensic” on it, the examination was arranged by the sheriff’s department, and the nurse asked questions that went beyond medical treatment for the alleged victim.

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