(concurring in part, dissenting in part):
While I concur with the majority’s findings with respect to the appellant’s 5 June 2006 urinalysis test report, I respectfully dissent from its findings on the appellant’s 10 July 2006 urinalysis test report. Axiomatieally, the statements in question are the laboratory technicians’ statements contained in the appellant’s 10 July 2006 urinalysis test report. The questions to address are whether these statements are testimonial4 and, if so, whether the military judge abused his discretion in admitting these statements at the appellant’s court-martial.
The majority, in answering these questions, focuses solely on the perspectives of the laboratory technicians, hereinafter the declarants, and gives little analysis to the purpose of the request to consent to the 10 July 2006 urinalysis test. It is this approach with which I must depart company. The majority finds the statements to be non-testimonial because there is no evidence that the declarants had reason to, or were under any pressure to, produce a certain result or that they were aware that the appellant’s results would be used in a future prosecution. While the declarants’ neutrality is relevant, it is by no means the sole consideration in resolving this issue. The government’s purpose, or lack thereof, in securing the declar-ants’ statements is of equal consideration.
First, the Supreme Court, in addressing this issue, enunciated a “primary purpose” test and highlighted that a statement is testimonial when its “primary purpose ... is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Second, at least one jurisdiction rejects an approach that makes the declarant’s perspective dis-positive on this issue. State v. Caulfield, 722 N.W.2d 304, 309 (Minn.2006). Caulfield is instructive and persuasive in that it highlights a concern with the majority’s approach — an approach that focuses solely on the declarants’ neutrality and does not give adequate consideration to Crawford’s, fear of governmental abuses. Id. Put simply, in resolving this issue, the government’s purpose for securing the declarants’ statements is just as important, if not more important, as the declarants’ neutrality.
The primary purpose of the declarants’ statements was “to establish or prove past events potentially relevant to later criminal prosecution” (See Davis, 547 U.S. at 822, 126 S.Ct. 2266), namely to assist the prosecution in meeting its burden of proving the appellant used marijuana. The fact that the statements: (1) were requested by a law enforcement agency, the AFOSI, (albeit with the appellant’s consent); (2) were requested at a time while the AFOSI was investigating the appellant for drug use and the possession of marijuana paraphernalia; and (3) were used by the prosecution to prove the appellant used marijuana, belie any notion that the statements were obtained for non-prosecuto-*547rial purposes.5 Additionally, the fact that the declarants were unaware of the identity of the requester or the basis for the request is of little consequence in determining the purpose of the declarants’ statements.
Moreover, the report and the declarants’ statements contained therein bear all the characteristics of an ex parte affidavit, the trial use of which is the principle evil at which the Confrontation Clause was directed. Crawford v. Washington, 541 U.S. 36, 67, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The report and the declarants’ statements: (1) were prepared at the request of the AFOSI for the potential prosecution of the appellant; (2) functioned as the equivalent of testimony on the identification of the substance (tetrahydrocannabinol) found in the appellant’s urine; and (3) were offered at trial specifically to prove an element of a crime with which the appellant was charged.
Finally, as our superior court notes, cross-examination may be appropriate where an individual is accused of a crime and law enforcement conducts and seeks to admit the results of bodily fluid test at trial. See United States v. Magyari, 63 M.J. 123, 127 (C.A.A.F.2006) (citing People v. Rogers, 8 A.D.3d 888, 780 N.Y.S.2d 393, 397 (N.Y.App. Div.2004)) for the notion that cross-examination may be appropriate where a particular defendant is accused of rape and law enforcement conducts and seeks to admit the results from a blood or DNA test. In the case sub judice, cross-examination of the declarants was appropriate, especially considering the AFOSI’s role in obtaining the appellant’s 10 July 2006 urinalysis test report.
Accordingly, under the “primary purpose test” enunciated under Davis, the ex parte affidavit “test” enunciated under Crawford, and the guidance under Magyari, I would find the declarants’ statements to be testimonial, the admission of which was an abuse of discretion. Moreover, since this error involves the appellant’s Sixth Amendment6 right to confront witnesses, I would test this error for its effect upon the trial to determine whether the error was harmless beyond a reasonable doubt. United States v. Othuru, 65 M.J. 375, 378 (C.A.A.F.2007).
The declarants’ statements were the only evidence the prosecution had on the wrongful use of marijuana specification and, though there was little evidence contradicting the declarants’ statements, I am convinced, absent these statements, the court members would not have found the appellant guilty of the wrongful use of marijuana specification. In recognition of such, I would set aside the findings of guilt on Specification 3 of Charge I and reassess the sentence. For these reasons, I must respectfully dissent.
. Admittedly reasonable minds may differ on whether forensic laboratory reports are testimonial. The United States Supreme Court recently granted certiorari to resolve this issue. See Melendez-Diaz v. Massachusetts, 552 U.S. 1256, 128 S.Ct. 1647, 170 L.Ed.2d 352 (2008).
. Unlike urinalysis reports prepared for random urinalyses, reports that are generated primarily for the preservation of good order and discipline via general and specific deterrence, urinalysis reports prepared for consent and probable cause urinalysis are generated primarily to obtain evidence, e.g. evidence of drug use that may be relevant at courts-martial.
. U.S. CONST, amend VI.