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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)

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We have written of the Supreme Court’s application of the newly-muscular Confrontation Clause to require the government in prosecutions involving lab reports to generally call the lab technician who conducted the tests whose results are being reported. As discussed here, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the Court held that a laboratory report was testimonial and subject to the Confrontation Clause if it was created for use as evidence in a criminal trial, and, in that event, its admission required either a live witness to testify to its contents or the opportunity for the defense to have earlier cross-examined the witness who prepared the report but who was unavailable for trial.

Some lower courts have uncertainly wrestled with the Confrontation Clause analysis, as in a Fifth Circuit decision which clumsily analyzed the “testimonial” prong of the analysis, as discussed here.

In its latest consideration of the issue, the Supreme Court in a 5-4 decision on June 23, 2011 in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), held that if the report-writer was not available to testify, then the prosecution could not simply substitute some other employee of the same lab. In Bullcoming, a state DUI case, the prosecution offered another laboratory employee who had not conducted the questioned test on the driver’s blood sample, but who was familiar with the testing equipment and procedures. First, the lab report was held to be “testimonial.” Although it was not sworn and notarized, as was the drug-testing certificate held to be "testimonial" in Melendez-Diaz, the distinction was not meaningful; both lab certificates were formalized in a signed document and were created for trial. Second, the substitution of another lab employee was inadequate, since the cross-examiner was entitled to explore the testimony of the technician who tested the sample and who made, or chose not to offer, in the report observations about the sample and the test.

In a concurring opinion, Justice Sotomayor chose to emphasize prosecutorial approaches which may not have been foreclosed by Melendez-Diaz and Bullcoming. First, the concurrence noted that the Court was not presented with a case in which a lab supervisor, who had some overarching connection to the lab report if not personal involvement in its creation, had testified; that might present a “different case,” although the degree of involvement which the witness was required to have with the testing would have to be explored. Second, the testifying witness was not asked for his expert, independent opinion about the underlying test performed by another; under Fed. R. Evid. 703, which generally permits a testifying expert to rely on inadmissible hearsay, that too would present a “different question.” (In an earlier opinion, the Seventh Circuit in United States v. Turner, 591 F.3d 928 (7th Cir. 2010), had likewise identified Rule 703 as a possible way to circumvent the perceived need for live testimony from the testing official, see here.)  Third, this was not a case where only machine-produced results were introduced, since the Bullcoming lab report contained the missing technician’s statements about the results and the procedures employed; a different case would be presented if the prosecution had introduced raw testing data through an expert witness. In short, there remain several avenues for an enterprising prosecutor to overcome the unavailability of one particular lab employee, given a sufficient amount of time to plan and make necessary expert witness disclosures prior to trial.
 

(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)

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