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White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Testimonial Business Records — Yet Another Category For Confrontation Clause Analysis?

Posted in Constitutional law

Alain Leibman writes:

This author has on several occasions examined the interesting and unpredictable path traced by the Supreme Court’s recent Confrontation Clause jurisprudence, both in blog posts (here and here and here) and in longer form analyses. The Court’s shift in position from one relegating the Confrontation Clause to a role secondary to that of the hearsay rules, to one assigning the constitutional provision a preeminent position in weighing the admissibility of many kinds of trial evidence has left lower courts struggling to analyze the correct evidentiary treatment in specific cases.

While noting in Crawford v. Washington, 541 U.S. 36 (2004), that most out-of-court statements, written or verbal, are subject under the Confrontation Clause to cross-examination at trial if they are "testimonial" in nature, the Court held that the constitutional right to cross-examination did not reach classic forms of "nontestimonial" evidence such as business records. Id. at 56. But what does it mean to be “testimonial” or "nontestimonial"? The Crawford Court described "testimonial" statements as including those made under circumstances supporting the objective belief that they were created or recorded for use at a later trial. Id. at 51-52. What to make, then, of a business record, such as a form kept in the files of a government agency and used to determine benefits eligibility, which serves multiple purposes?

The answer, according to United States v. Berry, 2012 WL 2098902 (9th Cir., June 12, 2012), is not entirely clear. The Berry case involved a conviction for social security benefits fraud; on the issue of Berry’s knowledge of the law, the trial court admitted into evidence benefits-application records of the Social Security Administration which purported to show that an agency employee had in an interview with Berry reviewed his legal obligations regarding the receipt and disbursement of benefits payments, although no form was signed by Berry himself. The forms were, according to one testifying agency witness, routinely completed as part of the benefits application process, not in anticipation of a trial. The interviewer-employee did not testify and apparently had been fired prior to trial for general incompetence. Berry’s attorney objected to the admission of the government records, arguing that they were testimonial under the Confrontation Clause, and that he should have had the opportunity to cross-examine the interviewer-employee in order to establish that the forms were inaccurate and did not reflect information provided to the defendant.

The majority of the Ninth Circuit panel upheld the conviction and, specifically, the admission of the SSA exhibits as government records on the ground that they were "routine, administrative documents prepared by the SSA for each and every request for benefits." They were unsworn and "there was no anticipation that the documents would become part of a criminal proceeding," so they were nontestimonial.

The dissent argued that each of the records contained pre-printed statements acknowledging that any false statements to the SSA would be punishable as crimes and that the benefits applicant would be personally liable for repayment of improperly obtained or spent benefits. Acknowledging that some portion of the records may have had utility other than for the purpose of proof of fraud at a trial, the dissent maintained that "[i]t is hard to imagine what purpose including these statements in these documents could serve aside from establishing an applicant’s knowledge of the law for a future showing of willful violation." Because the agency employee did not testify, Berry was left unable to cross-examine anyone about the veracity of the statements in the documents for which he was held responsible, and so their admission violated the Confrontation Clause.


(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)