CAAF and Article 62 appeals

CAAF has issued an opinion in United States v. Bradford, a government appeal of a pretrial ruling.

The appeal was on a military judge declination to pre-admit a Lab Package in a urinalysis case.  AFCCA had no trouble saying that a declination to pre-admit evidence is appealable.  CAAF had no trouble correctly saying that AFCCA was wrong.

The prosecution proffered the standard lab package and told the military judge they’d produce an expert at trial to discuss the package.  That basically was it.  On that the military judge was supposed to pre-admit the package.  Rather than pre-admit, the military judge told the prosecution that they’d need to produce witnesses and pull out some pages that might be pre-admitted separately.   The prosecution then ‘threatened’ the military judge that they were going to appeal.  Notably the military judge expressed an opinion that his “ruling” wasn’t appealable.  And it appeared the military judge was going to hold the prosecution to its burden to produce actual, like real, evidence.  Rather than produce evidence and testimony necessary to lay a foundation for the documents either in the motion or at trial, the prosecution, rather peevishly to my way of thinking, appealed.

I’m reminded of the Queen in Lewis Carroll’s, Alice in Wonderland, where she shouts, “off with his head,” or words to that effect about the prisoner at the bar.  And Alice asks plaintively, “what about the trial.”

The military judge did not exclude the evidence, merely told the government that they’d not established a sufficient foundation to pre-admit evidence.  The military judge basically told the prosecution what they needed to do.  Rather than do what the military judge suggested, and present evidence, the prosecution appealed.

CAAF did not rule on the admissibility of the evidence should evidence and testimony be produced and did not rule on the Melendez-Diaz issue raised by the military judge.  CAAF did footnote a pending decision in Blazier.