You may be familiar with the quote:
In every case involving [state your poison], we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’. Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962)(emphasis added).
And you may be familiar with this research.
Diamond Shari Seidman, and Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 VA. L. REV. 1857 (2001); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 EMORY L.J. 135, 175-78 (1989) (discussing studies on curative instructions and noting that “[t]he empirical research demonstrates that jurors are deeply affected by prejudicial comments and evidence and that curative instructions tend to increase the prejudice rather than decrease it. Moreover, the research shows that the impact is much greater in weak cases than in strong ones.”).
Let’s assume for the moment that as a result of United States v. Blazier the prosecution decides that they will approach the naked urinalysis case differently when calling an expert. It seems, for the moment, that an expert might still be able to testify but they ought to be limited to the computer test printouts for their testimony. See Mil. R. Evid. 703. There would still be a viable issue that the substitute expert can’t testify about the receipt and handling of the sample when it arrived at the lab or anything as to chain of custody and quality assurance. My sense is that the substitute expert ought to be limited to interpreting the test data only. In other words, it’s my view that Blazier narrows what the substitute expert can testify to without running into a confrontation issue. If the prosecution wants to establish the sample arrived safely, that it was not damaged, etc., then they need to call the “receptionist.” Testimony about that by an expert would still be hearsay and subject to a confrontation challenge, as well as relevance under Mil. R. Evid. 401, 403 and 703.
But, assuming the substitute testifies about the results printed out from the MS/GCMS (and that the judge likely allows him or her to testify about everything else) and adopts the test printouts for the purpose of his or her opinion, then that leads to another issue — the need for a “Limiting Instruction,” in accordance with Mil. R. Evid. 105.
Rule 105. Limited admissibility
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the military judge, upon request, shall restrict the evidence to its proper scope and instruct the members accordingly.
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
And, as the recent opinion of the Supreme Court of Arizona in State v. Gomez, 2010 WL 5173627 (Ariz. 2010), makes clear, the submission of an inadequate instruction does not waive the defendant’s right to a limiting instruction in a case covered by Rule 105.
Gomez is a case where DNA evidence was used.
In performing DNA testing and analysis, the laboratory used an "assembly line" method that involved seven steps. . . . Various technicians involved in the laboratory processes did not testify at Gomez’s trial.
The State instead called a single witness about the DNA testing. That witness, a senior forensic analyst and supervisor at the laboratory, testified in detail about the laboratory’s operating procedures, standards, and safeguards. Although the analyst had not witnessed all of the steps in the process, she had checked the technicians’ records for any deviations from the laboratory’s protocols. The analyst had performed the initial evidence screening and DNA extraction on most of the items, and she testified about the chain of custody for all items. For each sample, the analyst personally performed the final step in the process, interpretation and comparison. This step required her to compare the DNA profiles generated in the laboratory, and it was the only step involving human analysis.
The analyst testified that several profiles derived from evidence at the crime scene "matched" the profile obtained from Gomez’s blood sample. The data from the testing process were not introduced into evidence as exhibits.
Now, if this data were introduced, it could have violated Gomez’s rights under the Confrontation Clause pursuant to the Supreme Court’s opinion in Melendez-Diaz v. Massachusetts. But, the prosecution instead used the new technique of merely having the analyst use this data as the basis for her opinion under Rule 703, thus circumventing the Confrontation Clause.
Another look at Blazier and Mil. R. Evid. 703, 704, and 705 continues to be warranted. It seems to me there is room to litigate the scope of any testimony admissible under Mil. R. Evid. 703. I know we’ve focused a lot on the confrontation issues, and some exist still. But beyond the confrontation issues there a other lingering evidentiary objections.