Defense Requested Tests

  1. militarydefenselawyers349Tests for EME metabolite of cocaine.
    1. The government is not required to perform the test for EME metabolite when requested by defense if the sample tested positive for BZE and the chain of custody is not contested. United States v. Metcalf, 34 M.J. 1056 (A.F.C.M.R. 1992); United States v. Pabon, No. 29878, 1994 WL 108866 (A.F.C.M.R. Mar. 25, 1994) (unpublished), aff’d, 42  M.J. 404 (C.A.A.F. 1995).
    2. Positive test result for BZE (metabolite tested for within DOD) is sufficient to support conviction for wrongful use of cocaine; test for EME metabolite unnecessary. United States v. Thompson, 34 M.J. 287 (C.M.A. 1992).
    3. If tests for BZE and EME metabolites conflict, results may be
      insufficient to support conviction for wrongful use of cocaine. United
      States v. Mack, 33 M.J. 251 (C.M.A. 1991). Test results inadequate
      where test for BZE was positive and test for EME was negative.
  2. Tests for contaminants. United States v. Mosley, 42 M.J. 300 (C.A.A.F. 1995).
    Military judge did not abuse his discretion by ordering retest of accused urine
    sample for BZE, EME, and raw cocaine. Such tests fall into a “middle ground”
    where military judges are not required to order such testing, but do not abuse
    their discretion if they do.
  3. Blood tests and DNA tests. United States v. Robinson, 39 M.J. 88 (C.M.A.
    1994). Military judge did not abuse discretion in denying defense request for
    “secretor test” to show accused was not source of positive sample where defense
    was unable to show discrepancies in collection or testing of sample.
  4. Polygraphs. United States v. Scheffer, 523 U.S. 303 (1998). Per se rule against
    admission of polygraph evidence (Mil. R. Evid. 707) in court martial proceedings
    did not violate the Fifth or Sixth Amendment rights of accused to present a
    defense to charge that he had knowingly used methamphetamine. Per se rule
    serves several legitimate interests, such as ensuring that only reliable evidence is
    introduced at trial. See also United States v. Williams, 39 M.J. 555 (A.C.M.R.
    1994) (Mil. R. Evid. 707 is unconstitutional), set aside, 43 M.J. 348 (C.A.A.F.
    1995) (accused waived issue of admissibility of polygraph because he did not
    testify). But see United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App.
  5. Hair.
    1. United States v. Bush, 47 M.J. 305 (C.A.A.F. 1997). Accused was
      convicted of use of cocaine. The CAAF held that mass-spectrometry
      hair analysis evidence was sufficiently reliable to be admitted into
      evidence in court-martial to establish cocaine use, even though there was
      some disagreement between experts about the procedure. See also
      United States v. Cravens, 56 M.J. 370 (C.A.A.F. 2002).
    2. United States v. Nimmer, 43 M.J. 252 (C.A.A.F. 1995). Military judge
      precluded defense from introducing negative hair test results, because the
      test would not have ruled out a one-time use of cocaine. Case remanded
      for re-litigation of this issue using the proper standard of United States v.
      Gipson, 24 M.J. 246 (C.M.A. 1987) and Daubert v. Merrell Dow
      Pharmeceuticals, Inc., 509 U.S. 579 (1993).
    3. See Major Keven Jay Kercher, Time for Another Haircut: A Re-look at
      the Use of Hair Sample Testing for Drug Use in the Military, 188 Mil. L.
      Rev. 38 (2006); Major Samuel J. Rob, Drug Detection by Hair Analysis,
      Army Law., Jan. 1991, at 10. See also United States v. Adens, 56 M.J.
      724 (A. Ct. Crim. App. 2002); United States v. Cravens, 56 M.J. 370
      (C.A.A.F. 2002).

Tests for contaminants.

See Major Keven Jay Kercher,