Your court martial defense lawyer should, if possible, argue that a lab report is testimonial. If the lab report is testimonial, then the government needs to have the report’s creator testify. To prove the testimonial nature of the report, the defense should put in defense discovery requests to probe how routine or random the lab test was; that is, was it produced with an eye toward trial? For example: Does the cover sheet of the lab report refer to it as a “litigation” packet? Was the specimen taken after CID opened a case file on your client?
In U.S. v. Murphy, 23 M.J. 310 (1987), the court held that “where scientific evidence is relied upon to prove the use of mari[j]uana, the Government may not presume that the judge or members are experts capable of interpreting such evidence. Expert testimony interpreting the tests or some other lawful substitute in the record is required to provide a rational basis upon which the fact finder may draw an inference that mari[j]uana was used.” So even if the lab report is non-testimonial, this ruling allows the defense to voir dire expert witnesses as to their “expert” qualifications, such as: Do you work at this lab? Do you hold a degree in biochemistry? Do you understand the sample regimen of the lab that did the testing?
Experts are like every other witness and are judged by the fact finder to determine the weight their testimony is given. Finally, the trial counsel must still link defendant’s specimen to the lab packet and that takes the testimony of the observer.
Military Defense Lawyer