In United States v. Pack, NMCCA 200401923 (N-M. Ct. Crim. App. Oct. 26, 2006), over defense objection, the military judge permitted an 8-year-old girl who was alleging that her step-father molested her to testify from a remote location. Based on Maryland v. Craig, 497 U.S. 836 (1990) and Mil. R. Evid. 611(d), the NMCCA held that the military judge did not err in permitting testimony from a remote location. The NMCCA went on to say:
We are not persuaded by the appellant's further contention that the decision in Crawford v. Washington, 541 U.S. 36 (2004) render the holding in Craig unsound. Crawford applies only to testimonial statements made prior to trial. The live, remote video testimony at issue in this case was presented at trial. In addition to being a departure from long-standing precedent, the appellant's reasoning assumes away the constitutional issue in this case -- whether the confrontation that occurred is constitutionally sufficient. Crawford does not address this question. The proper standard to be applied is that set forth in Craig, not Crawford. Applying that standard, we hold that the appellant's right to confrontation of the witness in this case was not violated. This assignment of error is without merit.The last sentence of the quote is normally reserved for cases in which an appellant's claim was either frivolous or close to it. Although the NMCCA ruled against the appellant, the issue is hardly frivolous, as the CAAF will hear oral argument on Pack, No. 07-0085/MC on 25 October, and the Supreme Court has not resolved the issue. The argument will be held at a "remote location" to be announced later as part of the CAAF's outreach program.
In United States v. Harcrow, NMCCA 200401923 (N-M. Ct. Crim. App. Oct 30, 2006), the NMCCA held that two forensic laboratory reports from the Virginia "Department of Criminal Justice Service, Division of Forensic Science," identifying the substances seized as containing residue of heroin and cocaine, were admissible at trial despite Crawford. Citing United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), the NMCCA finds the reports non-testimonial business records.
Although Magyari did hold that the reports of urinalysis results from a Government drug testing laboratory were non-testimonial business records, it specifically limited the decision to the facts of the case. Urinalysis reports of specimens collected under the military drug testing program are not "prepared at the behest of law enforcement in anticipation of a prosecution." The facts in Harcrow are different. This crime laboratory, although clearly trying to objectively identify the substances, does prepare its reports at the behest of law enforcement in anticipation of a prosecution.
The CAAF will hear oral argument on Harcrow, No. 07-0135/MC on 6 November. Although the Supreme Court has not granted on this issue so far, a petition asking that question has been filed by the State of Missouri.