Using Positive Test Results as Rebuttal Evidence

Information on using positive test results as rebuttal evidence:

  1. militarydefenselawyers347United States v. Graham, 50 M.J. 56 (C.A.A.F. 1999). Accused testified that he was “flabbergasted” at having tested positive. Military Judge erred in allowing single rebuttal question by trial counsel about a prior positive marijuana result fur years earlier, of which accused was acquitted in court-martial. The CAAF held that the prior positive marijuana result was not logically relevant: statistical probability is unknown as to whether accused might test positive twice within four years and there is no necessary logical connection between testing positive twice and being flabbergasted. Accord United States v. Roberts, 52 M.J. 333 (C.A.A.F. 2000). But see United States v. Tyndale, 56 M.J. 209 (C.A.A.F. 2001).
  2. United States v. Matthews, 53 M.J. 465 (C.A.A.F. 2000). Accused tested positive for marijuana and was later given a command-directed urinalysis. At trial, the accused raised a good military character defense. The CAAF set aside the findings and sentence. The appellant was found guilty of a single
    specification of wrongful use of marijuana (between 1 and 29 April 1996). She testified that she did not use marijuana and that she did not know why she tested positive. The government then asked to use a subsequent command-directed urinalysis (conducted on 21 May 1996) for impeachment. The trial judge admitted the evidence for impeachment and ruled it was also admissible under Mil. R. Evid. 404(b) to show her prior use was knowing and conscious. The lower court found that her testimony raised the issue of innocent ingestion, but that it did not directly contradict that she knowingly used marijuana during the charged period. However, the lower court did find that the second urinalysis was relevant to the appellant’s credibility and to rebut evidence of her good military
    character. The CAAF disagreed, finding that extrinsic evidence may not be used to rebut good military character.
  • See generally Captain David E. Fitzkee, Prosecuting a Urinalysis Case: A Primer, Army
    Law., Sept. 1988, at 7, and Major R. Peter Masterton and Captain James R. Sturdivant,
    Urinalysis Administrative Separation Boards in Reserve Components, Army Law., Apr.
    1995, at 3.

See generally Captain David E. Fitzkee,

United States v. Matthews,