How did this even become a CAAF case? CAAF holds that German police report containing non-testifying witnesses' statements violates Crawford

In contrast to CAAF's opinion in Forney, United States v. Clayton, __ M.J. ___, No. 08-0417/AR (C.A.A.F. March 26, 2009), is delightfully straightforward.

Sergeant Clayton was convicted of various offenses including possession of marijuana with the intent to distribute. As Judge Baker's opinion of the court explains:

At Appellant's court-martial, the military judge admitted into evidence, over defense counsel's objections, a report from the German police pursuant to the business records exception to the hearsay rule. Military Rule of Evidence (M.R.E.) 803(6). The report in question listed the drug evidence collected from the car and the chase route, including "where the narcotics were found, the time when it was found, and the police officer who found it or who took it over from a pedestrian." [Lead German investigator Wolfgang] Held verified that he prepared the report as part of the "regular course of [his] business" and such documents are "always prepared when evidence is received." Mr. Held also testified that, although he counted and recorded the drugs in the report, he personally seized only three items and none of the marijuana listed in the report, saw the rucksack in the car but did not personally seize it from the car, and did not see anything thrown from the car.

Id., slip op. at 7.

The question before CAAF was whether the admission of this report violated Crawford v. Washington, 541 U.S. 36 (2004). The answer to that question seems so obvious that it's difficult to understand how this even became a CAAF case, since that required both the military judge and ACCA to reach the wrong conclusion on that question. (SGT Clayton was tried about six months after the Supremes announced their Crawford decision.)

CAAF provides this summary of how the Crawford issue arises in this case:

Although Mr. Held and one other officer who discovered some of the drugs testified, two other officers listed in the report, as well as the pedestrians who provided the drugs to the officers, did not testify at Appellant's court-martial. Further, only one of the officers who found part of the marijuana at issue in Charge IV and its specification testified, and he discovered it with the help of pedestrians. Appellant did not have the opportunity to cross-examine these potential witnesses. The question becomes whether their statements in the report are testimonial, and thus whether the report's admission as evidence violated Appellant's right to confront witnesses against him.

Clayton, No. 08-0417/AR, slip op. at 9.

CAAF concluded that the statements included in the report were testimonial. "First, the report was prepared in the course of an investigation." Id., slip op. at 10. "Second, the report 'involve[d] more than a routine and objective cataloging of unambiguous factual matters.'" Id., slip op. at 11 (quoting United States v. Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007)). "Mr. Held prepared this report eight days after March 16, 2004, to describe the drugs found in the car and along the chase route, who found them, and where they found them." Id. Additionally, Mr. Held testified not from his original German-language version, but rather from an English-language version that was prepared during the court-martial. "Third, the report and its English translation were created 'with an eye toward trial.'" Id., slip op. at 12 (quoting Rankin, 64 M.J. at 352).

CAAF went on to hold that the report's admission wasn't harmless beyond a reasonable doubt.

Judge Stucky concurred separately to note that he didn't believe that the redacted English-language translation created any additional Confrontation Clause errors that weren't created by the German-language version.