Alain Leibman writes:
We have on numerous occasions in this blog traced the winding path of Confrontation Clause jurisprudence handed down by the Supreme Court in the last ten years, and interpreted to varying degrees of clarity and logic by the lower courts (see here, here, and here).
One category of evidence whose status is a continuing curiosity is that of business records. The seminal Supreme Court decision in the recent reformulation of Confrontation Clause analysis is Crawford v. Washington, 541 U.S. 36 (2004). Under Crawford and its progeny, most out-of-court statements, written or verbal, must be subject to cross-examination of the declarant at trial unless the statements are nontestimonial evidence, such as business records. Id. at 56. Again, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court held that business records are generally admissible without regard to the availability of a live witness subject to cross-examination because they were created to administer an entity’s affairs and are thus, by definition, “nontestimonial” because they were not prepared for establishing some fact at a trial. Id. at 324.
But when the application of the constitutional right is made to turn on the evidence rule for business records, FRE 803(6), then should not hard questions be asked under Rule 803(6) about the actual utility and reliability of certain records in the entity’s affairs, as when the records in question are truly and solely maintained for law enforcement and not business purposes? In the recent case of United States v. Towns, 2013 WL 1809758 (5th Cir., Apr. 30, 2013), the appeals court upheld the conviction of a methamphetamine dealer, found guilty in a trial in which the government offered evidence of his pseudoephedrine purchases from various pharmacies. The purchase records were in the form of logs kept by the pharmacies to comply with federal law, and were admitted based merely on the certifications from their respective records custodians without any cross-examination of those custodians. The Fifth Circuit rejected a Confrontation Clause argument made by Towns.
Clearly, the regulations requiring the keeping of such records, and not any independent business necessity, warranted the maintenance of lists of purchaser names, and just as clearly the lists were known by pharmacies to be used in drug prosecutions. The court could, therefore, have readily concluded that the logs were testimonial in nature, i.e., intended to help prosecutors prove a fact at a trial and not actually records pertinent to the daily functioning of the drug stores as business entities.
However, in a 2-1 opinion written by Judge Edith Jones, the court held that because the logs were not created “in response to an active prosecution,” they fell within FRE 803(6) as business records of the pharmacies, and so were properly admitted without any opportunity for cross-examination of their custodians. Nowhere does Judge Jones explain how or why the appeals court extended the Crawford/Melendez-Diaz formulation of testimonial=Confrontation Clause implicated=record prepared for use at any trial = live testimony needed, to testimonial=Confrontation Clause implicated=only if record prepared for use at a specific, ongoing investigation or trial = no need for cross-examination. Framing the Crawford/Melendez-Diaz test in that peculiar fashion virtually guarantees that any record kept by a business in its ordinary course, no matter the legal-compliance reason for doing so, will be admitted at the behest of the government without live testimony.
(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)