Opinion of the Court
CRAWFORD, Judge:
Appellant was tried by a special court-martial with members and, contrary to his pleas, was found guilty of wrongful use of marijuana (2 specifications), in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Appellant was sentenced to a bad-conduct discharge, partial forfeitures, and reduction to E-3. The convening authority approved the adjudged sentence; the court below affirmed the findings and sentence; and we granted review of this issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN EXCLUDING EVIDENCE OF A NEGATIVE URINALYSIS REPORT FOR THE PRESENCE OF THC [tetrahydrocannabinol] SUBMITTED ON APPELLANT THREE DAYS AFTER THE LAST CHARGED USE OF MARIJUANA.
We hold that, under the facts of this case, the judge did not abuse his discretion in excluding the defense proffered evidence of appellant’s “negative” urinalysis test result.
[14]*14FACTS
Appellant was charged with using marijuana on two occasions: on or about July 27, 1990, and on or about September 1,1990. To prove the July 27,1990, use, the Government presented the testimony of Special Agent (SA) John S. Johnson, of the Air Force Office of Special Investigations (OSI) and Staff Sergeant Paul G. Robertson, an undercover source. SA Johnson testified that he met appellant during an undercover investigation of appellant’s alleged drug abuse, and that he observed appellant inhale from a marijuana cigarette one time and pass the marijuana cigarette on to others without smoking it one other time. Agent Johnson’s ability to observe appellant was vigorously questioned on cross-examination because the alleged use occurred after dark; the light source came from behind appellant who was standing about 10 feet away; and appellant also held a lit tobacco cigarette in the same hand.
Staff Sergeant Robertson also testified that he observed appellant use marijuana on July 27, 1990. Sergeant Robertson’s testimony differed from Agent Johnson’s testimony in that he described the parties as being closer together and testified that appellant passed the marijuana cigarette without smoking it about four times and that appellant was not smoking a tobacco cigarette while smoking the marijuana cigarette. Sergeant Robertson also testified that he had drunk about five beers before the marijuana cigarette was passed and that, on a few other occasions, marijuana cigarettes had been produced and smoked in appellant’s presence and appellant did not touch the marijuana cigarette.
Staff Sergeant Robertson provided the only evidence concerning appellant’s use of marijuana on September 1, 1990. He testified that he saw appellant inhale from a marijuana cigarette three or four times.
The defense case on findings consisted of the testimony of three witnesses: Master Sergeant Manual Guerra, Staff Sergeant David A Timm, Jr., and Captain David A. Shields. They all testified to appellant’s good military character and his character for lawfulness. The defense also offered appellant’s performance reports which established his exemplary military service.
The contested evidence is trial defense counsel’s offer of the results of a “negative” radioimmunoassay (RIA) test of a urine sample given by appellant on September 4, 1990, 3 days after his alleged use on September 1, 1990. Before entering pleas, the defense, relying on United States v. Arguello, 29 MJ 198 (CMA 1989), moved in limine to suppress a government explanation of the RIA test results which defense intended to offer. The Government did not oppose the reference to a specific nanogram level, and the military judge granted the defense’s Arguello motion. Later, the Government moved in limine to prevent the defense from introducing the RIA test results altogether. The Government based its motion on grounds that the test without explanation was irrelevant under Mil.R.Evid. 401 and 402, Manual for Courts-Martial, United States, 1984, and that any probative value it may have had was substantially outweighed by the confusion and misleading nature of the evidence under Mil.R.Evid. 403.
In support of its motion, the Government called Dr. John Vasiliades, a forensic toxicologist. Dr. Vasiliades testified that appellant’s urine was reported as testing negative. Dr. Vasiliades also testified that the probativeness of the test results depended on how heavily the subject used marijuana.
The judge ruled as follows:
Gentlemen, I’ve had an opportunity to consider the motion of the prosecution and to reflect upon the information contained in Appellate Exhibit II, as well as the information presented to me in the testimony of Dr. Vasiliades. I would note that I considered] the following points of that information to be particularly relevant, that is, specifically that the only test apparently used on this particular sample was the radioimmunoassay test; that the Appellate Exhibit II does apparently reveal the presence of some level of the metabolite of THC in the urine, although below the level considered positive for purposes of reporting this test. I find the RIA test is not a reasonable — is a method reasonably relied [15]*15upon by experts in this particular field to determine the presence or absence of the metabolites of THC by itself, but only in conjunction with further tests ordinarily used under the DoD [Dept, of Defense] regulations, that is, the GC/MS [Gas Chromatography/Mass Spectrometry] test. I do find that this information proposed by the defense would be marginally relevant under Military Rules of Evidence 402, very marginally so, and considering the fact that the test does show the presence of some metabolites of THC, although below the cutoff level, I have also considered that under MRE 403,1 find that the very marginal relevance of this particular test is more than substantially outweighed by a very substantial risk of misleading and confusing the members of this particular court-martial or any court-martial, for that matter. Therefore, I will grant the prosecution’s Motion in Limine to suppress the results of this particular test.
Trial defense counsel responded to this ruling “on the record” insisting that this Court’s decision in Arguello commanded a different result.
DISCUSSION
We begin our analysis by reviewing the impact of our holding in Arguello which goes to the heart of the issue before us.
In Arguello the defense sought to suppress rebuttal evidence introduced by the Government on the bases that the sample was destroyed and the results fell below the DOD cutoff level for reporting a test as positive. During his opening statement, defense counsel argued that Arguello gave a urinalysis sample which came up negative. The defense supported this with the testimony of an expert witness who testified that if the defendant smoked marijuana, the expert would expect a positive urinalysis test the next day. In rebuttal the Government also called an expert witness who testified that the accused’s RIA reading of 32,650 radioactive counts per minute conclusively determined that THC metabolites were present in his urine.
This Court indicated in Arguello that it was not necessary to decide the case on whether appellant’s Constitutional right to due process was violated by destruction of the urine sample. 29 MJ at 203.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
CRAWFORD, Judge:
Appellant was tried by a special court-martial with members and, contrary to his pleas, was found guilty of wrongful use of marijuana (2 specifications), in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Appellant was sentenced to a bad-conduct discharge, partial forfeitures, and reduction to E-3. The convening authority approved the adjudged sentence; the court below affirmed the findings and sentence; and we granted review of this issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN EXCLUDING EVIDENCE OF A NEGATIVE URINALYSIS REPORT FOR THE PRESENCE OF THC [tetrahydrocannabinol] SUBMITTED ON APPELLANT THREE DAYS AFTER THE LAST CHARGED USE OF MARIJUANA.
We hold that, under the facts of this case, the judge did not abuse his discretion in excluding the defense proffered evidence of appellant’s “negative” urinalysis test result.
[14]*14FACTS
Appellant was charged with using marijuana on two occasions: on or about July 27, 1990, and on or about September 1,1990. To prove the July 27,1990, use, the Government presented the testimony of Special Agent (SA) John S. Johnson, of the Air Force Office of Special Investigations (OSI) and Staff Sergeant Paul G. Robertson, an undercover source. SA Johnson testified that he met appellant during an undercover investigation of appellant’s alleged drug abuse, and that he observed appellant inhale from a marijuana cigarette one time and pass the marijuana cigarette on to others without smoking it one other time. Agent Johnson’s ability to observe appellant was vigorously questioned on cross-examination because the alleged use occurred after dark; the light source came from behind appellant who was standing about 10 feet away; and appellant also held a lit tobacco cigarette in the same hand.
Staff Sergeant Robertson also testified that he observed appellant use marijuana on July 27, 1990. Sergeant Robertson’s testimony differed from Agent Johnson’s testimony in that he described the parties as being closer together and testified that appellant passed the marijuana cigarette without smoking it about four times and that appellant was not smoking a tobacco cigarette while smoking the marijuana cigarette. Sergeant Robertson also testified that he had drunk about five beers before the marijuana cigarette was passed and that, on a few other occasions, marijuana cigarettes had been produced and smoked in appellant’s presence and appellant did not touch the marijuana cigarette.
Staff Sergeant Robertson provided the only evidence concerning appellant’s use of marijuana on September 1, 1990. He testified that he saw appellant inhale from a marijuana cigarette three or four times.
The defense case on findings consisted of the testimony of three witnesses: Master Sergeant Manual Guerra, Staff Sergeant David A Timm, Jr., and Captain David A. Shields. They all testified to appellant’s good military character and his character for lawfulness. The defense also offered appellant’s performance reports which established his exemplary military service.
The contested evidence is trial defense counsel’s offer of the results of a “negative” radioimmunoassay (RIA) test of a urine sample given by appellant on September 4, 1990, 3 days after his alleged use on September 1, 1990. Before entering pleas, the defense, relying on United States v. Arguello, 29 MJ 198 (CMA 1989), moved in limine to suppress a government explanation of the RIA test results which defense intended to offer. The Government did not oppose the reference to a specific nanogram level, and the military judge granted the defense’s Arguello motion. Later, the Government moved in limine to prevent the defense from introducing the RIA test results altogether. The Government based its motion on grounds that the test without explanation was irrelevant under Mil.R.Evid. 401 and 402, Manual for Courts-Martial, United States, 1984, and that any probative value it may have had was substantially outweighed by the confusion and misleading nature of the evidence under Mil.R.Evid. 403.
In support of its motion, the Government called Dr. John Vasiliades, a forensic toxicologist. Dr. Vasiliades testified that appellant’s urine was reported as testing negative. Dr. Vasiliades also testified that the probativeness of the test results depended on how heavily the subject used marijuana.
The judge ruled as follows:
Gentlemen, I’ve had an opportunity to consider the motion of the prosecution and to reflect upon the information contained in Appellate Exhibit II, as well as the information presented to me in the testimony of Dr. Vasiliades. I would note that I considered] the following points of that information to be particularly relevant, that is, specifically that the only test apparently used on this particular sample was the radioimmunoassay test; that the Appellate Exhibit II does apparently reveal the presence of some level of the metabolite of THC in the urine, although below the level considered positive for purposes of reporting this test. I find the RIA test is not a reasonable — is a method reasonably relied [15]*15upon by experts in this particular field to determine the presence or absence of the metabolites of THC by itself, but only in conjunction with further tests ordinarily used under the DoD [Dept, of Defense] regulations, that is, the GC/MS [Gas Chromatography/Mass Spectrometry] test. I do find that this information proposed by the defense would be marginally relevant under Military Rules of Evidence 402, very marginally so, and considering the fact that the test does show the presence of some metabolites of THC, although below the cutoff level, I have also considered that under MRE 403,1 find that the very marginal relevance of this particular test is more than substantially outweighed by a very substantial risk of misleading and confusing the members of this particular court-martial or any court-martial, for that matter. Therefore, I will grant the prosecution’s Motion in Limine to suppress the results of this particular test.
Trial defense counsel responded to this ruling “on the record” insisting that this Court’s decision in Arguello commanded a different result.
DISCUSSION
We begin our analysis by reviewing the impact of our holding in Arguello which goes to the heart of the issue before us.
In Arguello the defense sought to suppress rebuttal evidence introduced by the Government on the bases that the sample was destroyed and the results fell below the DOD cutoff level for reporting a test as positive. During his opening statement, defense counsel argued that Arguello gave a urinalysis sample which came up negative. The defense supported this with the testimony of an expert witness who testified that if the defendant smoked marijuana, the expert would expect a positive urinalysis test the next day. In rebuttal the Government also called an expert witness who testified that the accused’s RIA reading of 32,650 radioactive counts per minute conclusively determined that THC metabolites were present in his urine.
This Court indicated in Arguello that it was not necessary to decide the case on whether appellant’s Constitutional right to due process was violated by destruction of the urine sample. 29 MJ at 203. The Court went on to hold that the rebuttal by the prosecution was improper because the DoD Directive prohibited introduction of RIA tests which fell below a certain level.
Here, appellant argues that, based upon Arguello, “Negative urinalysis results are clearly admissible to cast doubt on testimony that an accused used a particular drug on a particular occasion.” Final Brief at 5. That argument appears to be an oversimplification of the issue before us. As trial defense counsel noted and argued to the judge, Arguello would not only preclude admission of this evidence, but would also prohibit the Government from rebuttal based upon urinalysis test results which fall below the conservatively high standard of the DoD Directive. Thus it appears that the impact of Arguello and its progeny (1) overlook the truthfinding purpose of a trial, (2) abandon the Military Rules of Evidence governing introduction of scientific evidence, and (3) rely on Service Directives to suppress what may otherwise be reliable evidence.
Indeed, at oral argument the Government recognized this impact and argued:
Arguello ... carved out an exception to urinalysis results that doesn’t apply to any other type of scientific evidence or expert testimony. In doing that the Court went off the path as to the Military Rules of Evidence. This is an opportunity to get us back out of the wilderness and on the beaten path for the military rules. As appellant’s counsel has accurately pointed out, the standard for review is abuse of discretion, whether or not the military judge in this case abused his broad discretion in excluding the results of negative urinalysis, and, as pointed out during the argument by appellate defense counsel, to set the stage for this, it started with a motion in limine by defense counsel. Based on Arguello, what he wanted to do [16]*16is to say that here is a negative urinalysis result but you can’t talk about it. You can’t tell anybody what it really means. And trial counsel’s response is: we have no problem with not bringing up a negative urine sample, but defense counsel said, under Rule 401-402, we don’t think these results are relevant at all. Therefore, the defense asked the judge to exclude it.
The purpose of a trial is truthfinding within Constitutional, statutory, and ethical considerations. Nix v. Whiteside, 475 U.S. 157, 174, 106 S.Ct. 988, 998, 89 L.Ed.2d 128 (1986) (“a system of justice [must be] dedicated to a search for the truth”); Jenkins v. Anderson, 447 U.S. 231, 237, 100 S.Ct. 2124, 2128, 65 L.Ed.2d 86 (1980) (prearrest silence by defendant may be used to impeach, assuming no prior rights’ warnings); United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980) (illegally seized evidence may be used to impeach defendant’s trial testimony). But truthfinding is not inconsistent with a system designed to secure our national security.
The Government recognizes that the impact of Arguello is to permit an accused to perpetrate what is tantamount to a fraud upon the court. “If an accused can testify that he has never used drugs, although there is the presence of them in his ‘negative’ urinalysis, and the Government is not permitted to rebut that testimony, the accused can lie without any fear of being confronted by the truth.” Answer to Final Brief at 2. In essence, Arguello would permit defense counsel to use the nanogram cutoff in the DoD Directive and service regulations as a sword to undermine the truthfinding of the trial.
Admissibility of scientific evidence
(A) the qualifications of the expert, Mil. R.Evid. 702; (B) the subject matter of the expert testimony, Mil.R.Evid. 702; (C) the basis for the expert testimony, Mil.R.Evid. 703; (D) the legal relevance of the evidence, Mil.R.Evid. 401 and 402; (E) the reliability of the evidence, United States v. Gipson, 24 MJ 246 (CMA 1987), and Mil. R.Evid. 401; and (F) whether the “probative value” of the testimony outweighs other considerations, Mil.R.Evid. 403.
39 MJ at 290 n. 1.
Subsequent to the model set forth in our opinion in Houser, the Supreme Court of the United States set forth a similar analysis in Daubert v. Merrell Dow Pharmaceuticals, — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which this Court recognized in United States v. Rodriguez, 37 MJ 448 (CMA 1993).
Contrary to Arguello, a violation of the DoD Directive should not lead to exclusion of evidence. Cf. Drafters’ Analysis of Mil.R.Evid. 311(c)(1), Manual, supra at A 22-17. The issue is whether the proffered scientific evidence otherwise satisfies the rules of evidence. We specifically reject the view that this Court has carved out a special exception for urinalysis test results that would determine admissibility based upon DoD and service directives rather than the Military Rules of Evidence.
Here the judge applied the Military Rules of Evidence in determining that admission of the defense proffered evidence had a substantial risk of misleading and confusing the members of the court-martial. Given the judge’s concerns over the relevance, reliability, and danger of confusion with this evidence, and given the impact of this Court’s opinion in Arguello, we hold that the judge did not abuse his discretion in excluding evidence of appellant’s “negative” urinalysis test results. Although we now overrule Arguello, we need not decide today whether use by the Government of “negative” test results in its case-in-chief would be barred by some other [17]*17rule of law. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. Thompson, 33 MJ 218, 221 (CMA 1991), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992).
The decision of the United States Air Force Court of Military Review is affirmed.
Judge GIERKE concurs.
Normally this evidence is presented through expert witnesses, see, e.g., United States v. Murphy, 23 MJ 310 (CMA 1987); United States v. Harper, 22 MJ 157 (CMA 1986). But see Mil.R.Evid. 803(6), 803(8), and 803(18), Manual for Courts-Martial, United States, 1984.