As noted previously on this blog here and here, the Supreme Court’s Confrontation Clause jurisprudence, culminating most recently in the Melendez-Diaz opinion in 2009, has both raised the bar substantially for the government in its efforts to introduce out-of-court statements and records and precipitated some confusion in the lower courts as they seek to apply those teachings to different fact patterns. Hearsay exceptions long believed to be co-terminous with the Confrontation Clause and safe harbors for prosecutors no longer assure admission of evidence. A recent Fifth Circuit case demonstrates just how unsettled are the expectations of prosecutors used to offering evidence in old ways which are no longer permissible under new constitutional constructs.
In United States v. Jackson, 625 F.3d 875 (5th Cir. 2010), a drug conspiracy prosecution, the government sought to implicate Jackson by introducing handwritten notebooks reflecting, in the hand of another, details of drug deals allegedly involving Jackson. These journals had been turned over by a co-conspirator, their author, during his proffer session with the government, but the co-conspirator did not testify at Jackson’s trial. The only witness called by the government was a law enforcement officer who attended the proffer session. Presumably because it thought doing so would avoid a hearsay problem, the government used the officer to lay the foundation for the notebooks as business records of the drug operation, but had him disavow that any of his information came from a statement of the co–conspirator; rather, he claimed sole reliance on his experience in drug cases and his reading of the journals’ entries. The trial court admitted the ledgers over objection and allowed the officer to describe the entries and ascribe significance to them, and Jackson was convicted. The Court of Appeals held that admission of the notebooks was error.
As the Confrontation Clause issue was analyzed by the two-judge majority of the panel, their task was to first determine whether the ledgers were or were not “testimonial” in nature; if testimonial, then the Confrontation Clause was implicated and the only basis on which the ledgers could have been introduced was if Jackson had an opportunity to cross-examine a witness with knowledge of them, an opportunity denied Jackson. However, the majority defined “testimonial” solely by reference to the business records rule of evidence: if the ledgers were not properly qualified as business records under FRE 803(6), then they must be “testimonial,” because they would then be “merely statements, made at an unknown time and conveyed at a proffer session, that related [to the testimony their author would have provided had he testified].” Id. at 881. Of course, all ordinary-course business records are “testimonial” in this sense, since the most mundane computer print-out of a sales organization’s activities substitutes for live testimony to the same effect by the sales representatives involved. In Jackson, the notebooks did not meet the Rule 803(6) test, since the officer was not a qualified witness under the Rule, as he could not say who prepared the entries in the journals or whether they were kept in the ordinary course of a drug-trafficking enterprise. Id. at 882-83. Therefore, the drug notebooks failed to meet FRE 803(6), were “testimonial,” and thus should not have been admitted absent the cross-examined testimony of their author.
(In finding the foundation evidence lacking, the Court of Appeals noted pointedly that there was no evidence that the testifying officer’s information had come from an interview of the co-conspirator about the drug organization’s record-keeping, an ironic critique given that the government had deliberately refrained from introducing just such available testimony most likely out of fear of drawing a hearsay objection. However, that fear was unfounded: the court noted that the Confrontation Clause does not apply to exclude preliminary, foundational evidence offered to establish the business records exception. Id. at 881 n.6. Other courts of appeal have long ago held — albeit prior to the most recent Supreme Court jurisprudence in this area — that agent-witnesses could establish a business records foundation through their hearsay testimony reflecting interviews conducted of co-conspirators or other witnesses. E.g., United States v. Franco, 874 F.2d 1136 (7th Cir. 1989); United States v. Hathaway, 798 F. 2d 902 (6th Cir. 1986)).
So, in the majority’s analysis, a business record meeting the foundational elements of Rule 803(6), by definition and without regard to its content, whether it consists of a bill of lading for widgets or a handwritten record of drug quantities and dates, is non-testimonial. The business records evidence rule, in effect, defines the constitutional right..
The concurring opinion took the opposite conceptual view, rejecting the notion that the contours of the Confrontation Clause are shaped by an evidence rule, and arguing that the majority should only have considered whether the ledgers were testimonial and implicated the Confrontation Clause, because then they could not be introduced without the defense being given an opportunity to cross-examine a qualified witness, regardless of the ledgers’ qualification or not as business records under the evidence rules. Id. at 888-889. The same result would have obtained in Jackson under either analysis, because the notebooks were neither qualified as business records (majority test for exclusion) nor was the defense given its full cross-examination opportunity (concurring judge’s test), hence the minority opinion concurred in the result. The concurrence also applied a different test to determine the fundamental question whether the records were “testimonial.” These notebooks were "testimonial" because they represented the involvement of government officers in the production of testimony with an eye toward trial, based on the fact that the ledgers were produced to the government by a co-conspirator during a proffer session. Id. at 888, citing Crawford v. Washington, 541 U.S. 36 (2004).
However, the analysis of the concurring judge also lacks persuasiveness. If the mere transmission of evidence to the police makes it "testimonial," then the production of the most mundane, ordinary-course business record to the government, in response to a subpoena or other official request, would render that business record “testimonial," in effect nullifying the business records rule of evidence and constitutionally compelling live testimony in all instances. That cannot be correct. Indeed, in Crawford, the case relied upon by the concurring opinion for this proposition, the involvement of law enforcement officers was not in their passive receipt of a record previously created by a witness, but in actively eliciting and taping for use at trial a statement by the victim of a violent assault. That taped statement was thereby rendered “testimonial.” By contrast, the ledgers in Jackson were not created with the assistance of police or at their instigation, they were merely handed over to the police by a co-conspirator seeking to curry favor.
Confusion, as ever, reigns over the current state of Confrontation Clause analysis.