Alain Leibman writes:
Recent Supreme Court jurisprudence has seemingly raised obstacles to prosecution efforts to admit at trial reports of scientific or technical tests without concurrent live witness testimony subject to cross-examination. In this space, we have examined the evolution of that Confrontation Clause jurisprudence, as the Court has examined whether particular test results and reports were “testimonial” or “non-testimonial,” determined by whether or not they were prepared for the purpose of being used as evidence at a trial. (See here, here, and here.) Lower courts have sifted through different types of records and struggled to apply the “testimonial” or “non-testimonial” label in order to ascertain their admissibility in the absence of appropriate live-witness testimony.
On some occasions the lower courts have stretched the already fairly elastic boundaries of an admissibility determination which turns on whether a particular scientific or technical record is intended for use at trial. A recent example of this gymnastic exercise is United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013). Brooks robbed a credit union, but had the misfortune to confront a well-trained teller, who inserted a GPS device in among the cash stuffed into an envelope. The device was activated, police followed it signal, and the bank robber was arrested. At trial, the government admitted tracking reports from the GPS device without adducing any supporting scientific testimony regarding the generation of the reports or their accuracy, relyong only on an account executive from the commercial GPS supplier to establish the foundational element that the device was accurate and working properly on the date in question.
On appeal Brooks argued that the admission of the tracking reports violated his Confrontation Clause rights. The Eighth Circuit disagreed. Acknowledging that the central inquiry is whether a particular record was created for the purpose of proving a fact at trial, the court held that the GPS tracking reports were not created for that purpose. Rather, the credit union used the GPS device solely “for the purpose of locating a robber and recovering stolen money”so the Confrontation Clause was not implicated in the admission of the evidence. Semantically, the court’s conclusion is correct, in that the device was not manufactured solely and exclusively for the purpose of generating trial evidence. On another level, though, it is entirely ridiculous to submit that the enterprise of locating and capturing a bank robber is disassociated from the inevitably ensuing criminal prosecution and trial. After all, the GPS device was not used by the credit union as part of an internal inventory control procedure, but solely to allow the police to track and apprehend the person who forcibly and at gunpoint removed that inventory. Yet, this is the state to which lower courts have fallen in applying the currently-framed test under 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)