USES OF URINALYSIS RESULTS

Of particular importance to the command is what use may be made of a positive urinalysis. The results of a lawful search and seizure, inspection, or a valid medical purpose may be used to refer a member to a Department of Defense (DOD) treatment and rehabilitation program, to take appropriate disciplinary action, or to establish the basis for a separation and for characterization in a separation proceeding.

The results of a command-directed/fitness-forduty urinalysis may not be used against the member for any disciplinary purposes or on the issue of characterization of service in separation proceedings except when used for impeachment or rebuttal in any proceeding that evidence of drug abuse has been first introduced by the member. In addition, positive results obtained from a command-directed fitness-for-duty urinalysis may not be used as a basis for vacation of a suspension of punishment imposed under Article 15, UCMJ, or a result of court-martial. Such results may, however, serve as the basis for referral of a member to a DOD treatment and rehabilitation program and as a basis for administrative separation.

What administrative or disciplinary action can be taken against service members identified as drug abusers through service-directed urinalysis testing varies, depending upon which CNO-designated unit was tested. The only constant is that all servicedirected testing may be considered as the basis for administrative separation.

THE COLLECTION PROCESS

The weakest link in the urinalysis program chain is in the area of collection and custody procedures. Commands should conduct every urinalysis with the full expectation that administrative or disciplinary action might result. The use of chiefs and officers as observers and unit coordinators is strongly encouraged. Strict adherence to direct observation policy during urine collection to prevent substitution, dilution, or adulteration is an absolute necessity. All samples should be mailed immediately after collection to reduce the possibility of tampering. Make sure all documentation and labels are legible and complete. Special attention should be given to the ledger and chain of custody to make sure they are all accurate, complete, and legible. Additional guidance is provided in OPNAVINST 53530.4.

SUMMARY

In this chapter, we examined the sources of the law of search and seizure and some of the language used. Next we covered the categories of evidence and searches. The use of drug-detector dogs, requirements for inspections and inventories, and the Navy's urinalysis program were also considered.

CHAPTER 4 MILITARY LAW OF EVIDENCE

Acting much like a filter, the law of evidence operates to separate that evidence or information which is worthy of being placed before the triers of fact from information which has no place before these jurors. Obviously, this is a gross oversimplification, but it conveys the basic idea underlying the law of evidence.

-Basic Military Justice Handbook

The material discussed in this manual does not cover all the laws of evidence. The laws covered in this chapter are those needed to help you prepare a case and to make you aware of what to expect when a case goes to trial.

SOURCES OF THE LAW OF EVIDENCE

LEARNING OBJECTIVES: Identify and discuss the various sources for the law of evidence.

When speaking of "the law of evidence," one does not refer to a single set of laws contained in a particular book. Some of the major sources of the law of evidence are the Constitution, statutes, court rules, court decisions, scholarly writings, and administrative decisions.

THE CONSTITUTION

The chief focal point of our discussion of the law of evidence is its application in the military. Since the Navy is an arm of the Federal Government, the basic source for evidentiary law is, as expected, the U.S. Constitution.

Article I, Section 8 of the Constitution states: "The Congress shall have power. . . to make rules for the Government and regulation of the land and naval forces. . . ." For anyone familiar with the Constitution, this might seem odd, since Article III addresses itself to the judiciary. But military courts are Article I courts-not Article III courts. In other words, military courts derive their existence, at least indirectly, from Article I of the Constitution, whereas a Federal

District court, which might try a criminal case, derives its power from Article III of the Constitution.

THE UNIFORM CODE OF MILITARY JUSTICE

Congress enacted the Uniform ^{Code of Military} Justice (UCMJ) Under Article I, ^{Section 8 of the} Constitution. The UCMJ contains a ^{number of articles} dealing with evidentiary matters, but Article 36 is the key to the military law of evidence. Article 36 of the UCMJ vests the President of the United States with the power to prescribe rules of evidence for the Armed Forces.

THE MANUAL FOR COURTS MARTIAL

The President has prescribed the rules of evidence in the Manual for Courts-Martial (MCM). Change 5 is the latest revision to the MCM, issued in November 1991. This is the most significant change concerning the rules of evidence. It adopts a new body of rules similar to the Federal Rules of Evidence. These new rules, called Military Rules of Evidence (MRE), are found in Chapter 27 of the MCM. They have long been the primary source of evidentiary rules in the military. Although the bulk of evidentiary rules are set forth in Chapter 27, other chapters of the MCM also deal with matters related to the law of evidence.

The MCM may not be able to interpret each point of the law relating to evidence. Such interpretation is a continuing process. Therefore, the Courts of Military Review (CMR) and Court of Military Appeals (COMA) were established to interpret points of law on particular issues. In effect, then, they have the function of making new law through their interpretation of existing law. If a point of law is not covered in the MCM, or if it is not clear, in many instances military trial courts will be able to refer to the decisions of the CMR or COMA. Therefore, in addition to the MCM, the military judicial system itself is a source of the law of evidence.

OTHER SOURCES

Finally, other sources of the law of evidence are to be found in Federal Court decisions interpreting rules of evidence; opinions of the Judge Advocate General; various administrative publications such as Navy Regulations, the Manual of the Judge Advocate General of the Navy, the Naval Military Personnel Manual, and various orders and instructions; the decisions of State courts; and scholarly works on evidence.