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Jana C. Volante writes:

Recently, in United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012), the Ninth Circuit addressed a question left unaddressed by the Supreme Court and never previously tackled by the Ninth Circuit: are certificates of authentication and accompanying affidavits authenticating foreign public records and foreign business records testimonial? In other words, can foreign records be authenticated without in-person witness testimony, or would using certificates of authentication and affidavits to authenticate foreign records violate a defendant’s rights under the Confrontation Clause of the Sixth Amendment?

In the District Court, defendant Henry Anekwu was convicted of mail fraud, wire fraud, and telemarketing fraud against the elderly. The evidence showed that between 1998 and 2002, Anekwu owned and operated lottery companies in Canada, which targeted elderly victims in California. Anekwu directed the telemarketers working for his companies to call victims and to falsely represent to those victims that they had won lottery money. The victims were then obliged to pay certain taxes and costs to Anekwu and his companies in order to receive the non-existent lottery winnings, with the payments mailed to various commercial mailbox addresses in Vancouver, Canada. The defendant was extradited to the United States to stand trial, and the government sought to introduce foreign business and public records against him pursuant to 18 U.S.C. § 3505 and Federal Rules of Evidence 803 and 902. Among the alleged errors committed in his trial, Anekwu argued that the District Court committed plain error by admitting certificates of authentication for foreign public and business records by means of affidavit in violation of the Confrontation Clause.

The Ninth Circuit previously concluded in United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005) that routine certifications of domestic public records are not testimonial, but neither the Supreme Court nor the Ninth Circuit had previously addressed whether certifications of foreign public records are testimonial. If certifications of foreign public records are testimonial, then the custodians who created the certificates of authentication are witnesses subject to a defendant’s Sixth Amendment right of confrontation and admitting certificates of authentication without in-person witness testimony violates a defendant’s Constitutional right to confront witnesses against him.

The Supreme Court had previously held that, to rank as testimonial, a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution. Bullcoming v. New Mexico, 131 S.Ct. 2705, 2714 n.6 (2011) (discussed previously in this space). Furthermore, as the Court held in Bullcoming and in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (discussed previously in this space), a document created solely for an evidentiary purpose is testimonial. Building on this Supreme Court precedent, in Anekwu, the Ninth Circuit held that the certificates of authentication in question certify only that the documents are true copies and that the person so certifying is the custodian of the document. Because the certificates of authentication do not interpret the content of the related business and public records or certify their substance or effect, the appeals court held that the certificates do not create a record for the sole purpose of providing evidence against a defendant. Accordingly, since the purpose of the certificates was merely to authenticate the foreign public and business records, and not to establish or prove some fact at trial, the Ninth Circuit held that the admission of the certificates was not plain error.

As the marketplace becomes increasingly global, and cross-border criminal activity more prevalent, it is highly likely that more and more white-collar criminal schemes will generate the need for evidence from multiple countries, increasing the frequency of the government’s reliance on foreign certificates of authenticity, and heightening the importance of this Ninth Circuit ruling.
 

(Jana C. Volante, Esq., the author of this entry, is an associate with Fox Rothschild LLP, based in our Pittsburgh, PA office. Her practice concerns white collar criminal defense and commercial litigation)

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Alain Leibman writes:

As we have previously examined in this space, here, here and here , the Supreme Court’s Confrontation Clause jurisprudence has when considering the admission of a prior statement by a witness most recently focused on whether or not the statement was “testimonial.” The Court tells us that a statement is testimonial if made under circumstances supporting the objective belief that the statement was either created or recorded for use at trial, the classic example being answers offered in response to deliberate police interrogation.

The recent opinion in United States v. DeLeon, 678 F.3d 317 (4th Cir. 2012) exemplified a “non-testimonial” statement made out of court, the admission of which passed constitutional muster. DeLeon was convicted of killing his stepson near an Air Force Base in Japan, where the child’s mother was stationed. With no eyewitness to the murderous blow inflicted upon the child, the prosecution built a circumstantial case dependent on evidence of prior physical abuse of the victim by the defendant. Most damning was the trial testimony of a civilian Air Force social worker who met with the family after a school referred the child for possible abuse some five months before his death. The child described to the social worker a pattern of minor physical abuse by his stepfather, no single act of which was apparently sufficiently serious to take the child out of the home or to go to criminal authorities.

DeLeon objected on Confrontation Clause grounds to the social worker’s recitation in court of the victim’s earlier statements, which had been admitted under Fed. R. Evid. 803(4), as a statement related to medical diagnosis. On appeal, the Fourth Circuit upheld the admission of the child’s previous statements as non-testimonial and thus upheld the conviction. While the child’s statements were not made to the social worker to allow her to respond to an on-going emergency -- the paradigm criterion which would render a victim’s statements non-testimonial, as in the gunshot victim case of Michigan v. Bryant, 131 S. Ct. 1143 (2011) -- there were other circumstances supporting the conclusion that the child’s statements were not procured as trial testimony: the social worker did not have a prosecutorial responsibility; she did not record the interview for use as evidence; she did not advise the child that his answers would be reported to the authorities; and the primary purpose of the meeting was to formulate a treatment plan.
 

(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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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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In a new article published in the BNA Criminal Law Reporter, the author suggests that the Supreme Court's Confrontation Clause analysis may be reverting to an approach, seemingly abandoned several years ago, which closely aligns the Sixth Amendment's limitations on admissible evidence with the standards employed in traditional hearsay exceptions.

(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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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.
 

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A useful lesson drawn from a recent Tenth Circuit case: don’t hesitate to use the common law “rule of completeness” in an effort to admit verbal statements, such as those memorialized in transcripts of plea allocutions or grand jury testimony, when no hearsay exception presents itself. United States v. Lopez-Medina, 2010 WL 56944 (10th Cir., Feb. 19, 2010).

In an effort to shift all the blame to a co-conspirator in this methamphetamine distribution case, defense counsel elicited testimony from a police officer on cross-examination that the co-conspirator had indeed been convicted and sent to jail. On redirect, the officer was allowed to read from the transcript of the co-conspirator’s plea allocution, in which he fully implicated the defendant in the crime, refuting the idea that the defendant had not been involved. The defendant was convicted.

The Tenth Circuit held that the Confrontation Clause would have barred the introduction of the other’s plea allocution if it had been offered for the truth of the matter asserted. But the allocution was properly admitted for a purportedly different purpose, to correct a “misimpression” that the co-conspirator had accepted sole responsibility for the crime. While Fed. R. Evid. 106 admits only “writing[s] or recorded statements” which in fairness should be considered as a whole, when only portions have been admitted, the common law doctrine of the rule of completeness is only “partially codified” in Rule 106 and more broadly includes oral statements, the court held. Since application of the doctrine does not run afoul of the Confrontation Clause, the other’s plea allocution could be read into the record even though it was testimonial and the defendant had no opportunity to cross-examine the declarant.

The court’s claim that the allocution was not offered for its truth does not hold up logically, because the allocution could only serve to correct a misimpression if believed to be true.  But, illogic aside, counsel should be sensitive to trial situations in which he or she may use the common law doctrine to admit into the record all kinds of statements made out of court by declarants who participated in or witnessed related events, or whose statements diminish the credibility of the government's witness.
 

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As reported here recently, the lower courts continue to struggle to apply the new, restrictive Confrontation Clause jurisprudence of the Supreme Court's decision last year in Melendez-Diaz to various kinds of certifications and reports which previously were regularly admitted at trial.  Subject now to a searching Sixth Amendment analysis which bars admission of hearsay statements when the declarant is unavailable at trial and there has been no prior opportunity for cross-examination, most formerly routinely-admitted paper records upon which prosecutors have relied should be barred.  Some courts have stepped boldly into this new world, while others have notably stumbled at the doorway.

There are two recent illustrations of this fascinating dynamic at work.  In United States v. Martinez-Rios, 2010 WL 323553 (5th Cir., Jan. 28, 2010), the Fifth Circuit held correctly that the defendant's Sixth Amendment rights were violated when the trial judge admitted, in an illegal re-entry case, an Immigration Certificate of Non-Existence of Record (CNR) to establish the essential element that the defendant was not authorized to re-enter the United States after deportation.  Although Fifth Circuit precedent had previously permitted the introduction of CNR's, the court recognized that Melendez-Diaz had changed the landscape; the CNR was testimonial in nature and was improperly admitted.

Conviction reversed even on a plain error standard, right?  No.  The appeals court found sufficient other evidence in the record to establish the element of lack of authority: the defendant had been found by authorities lurking in bushes after having admitted crossing the Rio Grande into Texas and also admitted having "no documents."  If the foregoing is adequate proof of non-authorized entry, then every alien found walking into the United States should be presumed to lack authority and CNR's would be unnecessary.  However, this thin, circumstantial evidence -- or, as the Fifth Circuit put it "all that testimony" -- showed that the erroneous admission of the CNR did not affect the defendant's substantial rights.   Result: conviction affirmed.

At least the Fifth Circuit correctly, and easily, applied Melendez-Diaz.  In contrast, the First Circuit in United States v. Dowdell, 2010 WL 481416 (1st Cir., Feb. 12, 2010), dropped the ball completely.  Dowdell was convicted of drug distribution; his defense was misidentification and included the claim that he was not the individual nicknamed "Smoke" shown in a blue shirt on a surveillance video shot shortly before his arrest.  The government offered at trial the booking sheet prepared at the time of arrest, in which a police officer reported that Dowdell was wearing a "blue plaid shirt."

The trial court had admitted the booking report under Fed. R. Evid. 803(8), the government-records hearsay exception, which however excludes from its embrace police reports and other records evincing matters observed by police officers.  The appeals court first made quick work of the seeming bar posed by  the evidence rule, saying that "we decline to give it a literal, unqualified meaning."  So, the booking sheet somehow passed muster under the hearsay exception. 

It cannot be determined from the opinion if a Melendez-Diaz objection was made below, but the First Circuit was applying a de novo standard of review to the trial court ruling, so was free to raise the Confrontation Clause issue sua sponte.  Incredibly, though, the First Circuit failed to measure the admissibility of the inculpatory booking sheet under the controlling Sixth Amendment standard.  It is obvious that the police officer's observations, recorded on the booking sheet, are testimonial, and were made by a declarant who neither testified at trial nor was ever subject to cross-examination.  The single most important item of evidence linking Dowdell to "Smoke" was admitted unconstitutionally and the conviction was flawed.  Result: conviction affirmed.

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Last year the Supreme Court emphatically extended its new Confrontation Clause jurisprudence -- abjuring reliance on historically-rooted hearsay exceptions to require in criminal cases that  "testimonial" hearsay be kept out unless subject to cross-examination -- to in-court evidence from drug-testing labs.  Under the Melendez-Diaz case, the prosecution can no longer admit lab reports but must present live witness testimony as to chain of custody issues and test results.  The dissent in Melendez-Diaz predicted that the necessity for live testimony would strain state resources and crime labs around the country.

Not so much, it now appears, at least in the Seventh Circuit.  In United States v. Turner, 591 F.3d 928 (7th Cir. 2010), the state crime lab chemist, Hanson, who had run all the tests on a sample of suspected crack cocaine, taken all the test notes, and written the report confirming the nature of the substance was not called by the government at trial because she was on maternity leave.  Instead, the government in this distribution case called her supervisor, Block.  In testimony that would seem to have flouted the Sixth Amendment and Melendez-Diaz, Block was permitted to testify -- after neutrally describing his lab's equipment and calibration, and the testing protocol for cocaine -- that he had not done any independent testing on the material but had reviewed Hanson's report, Hanson's data charts, and Hanson's handwritten notes, and had reached the same conclusion as had Hanson: the stuff was indeed crack cocaine.

To be sure, Hanson's report, charts, and notes were not literally admitted into evidence, but surely they were virtually admitted through Block's parroting of their contents.  Yet, remarkably, the Turner court held that there was no Sixth Amendment violation because those materials were not actually marked as exhibits and handed to the jury and because Block provided the jury with what was "unequivocally" his own opinion.  Id at 933.  And, by the way said the Turner court, Melendez-Diaz "did not do away with Federal Rule of Evidence 703."  Id. at 934.

The court's last, throw-away comment is particularly noteworthy.  FRE 703, of course, generally permits an expert to rely on hearsay in forming and delivering an opinion if the hearsay is of a type reasonably relied upon by experts in that field.  That is to say, FRE 703 allowed the kind of testimony offered by Block until Melendez-Diaz said that it didn't, because the Confrontation Clause supersedes any conflicting rule of evidence.  Arguably, the Turner decision is result-oriented, reached in order to save a conviction against a seeming constitutional violation.  It will be interesting to watch the continued development in the lower courts of Melendez-Diaz as those courts struggle to apply the Supreme Court's bold restatement of the impact of the Sixth Amendment on the admission of hearsay evidence in criminal cases.

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Since the seismic shift in Confrontation Clause jurisprudence effected by Crawford v. Washington, 541 U.S. 36 (2004), lower courts have struggled to define precisely which "testimonial statements" are now excluded from evidence unless the government can show both that the declarant is unavailable to testify at trial and there was a prior opportunity for cross-examination of the declarant. The Crawford Court did not define the term "testimonial" exhaustively, leading to some confusion in the ranks.  The Court's more recent jurisprudence has been unpredictable, such as its decision last year that the Confrontation Clause requires the government to present live testimony in order to admit lab test results in drug and other cases.

In at least one major category of government-developed evidence, it appears that lower court confusion has led to lower court error in applying Supreme Court precedent. Lower courts have since Crawford generally treated as nontestimonial, and thus impervious to Confrontation Clause objection, co-conspirator statements made to and often recorded by government informants. Recently, for example, the Sixth Circuit held in United States v. Johnson, 581 F.3d 320 (6th Cir. 2009) that statements made by Johnson's co-conspirator, O'Reilly, to a government informant were admissible against Johnson. They qualified as an exception to the hearsay rule under FRE 804(b)(3) as statements against penal interest, where O'Reilly was presumed unavailable to testify because he was likely to assert his Fifth Amendment privilege. As for the Confrontation Clause, the court of appeals held that O'Reilly's statements were nontestimonial because they were not made in response to police interrogation. Id. at 325-26.

The Sixth Circuit cited other, post-Crawford decisions which have likewise held that co-conspirator statements to informants are nontestimonial under the Sixth Amendment. For example, the Third Circuit in United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005), held that statements of co-conspirators made to a CI were admissible under the Confrontation Clause. What underlies the holdings in these cases is the essential proposition that answering the questions of and responding to a government informant is different for Sixth Amendment purposes than making the same type of statements to a known government representative, as in a formal interview with an agent or police officer. The problem with this proposition is that the Supreme Court's Sixth Amendment jurisprudence shows it to be unfounded.

In Massiah v. United States, 377 U.S. 201 (1964), the Court long ago held that it was a violation of the Sixth Amendment to admit at trial the statements of the defendant made to a government informant after he had been arrested and his right to counsel had attached. To the argument that there was a meaningful difference under the Sixth Amendment between post-charge interrogation by the police and interrogation by an informant working for the police, the Court said unequivocally:

It is true that in the Spano [v. New York] case [excluding a post-indictment confession] the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But [the Sixth Amendment rule] must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.

Under Massiah, then, the distinction drawn in cases like Johnson and Hendricks based on whether the interrogator is or is not wearing a uniform and carrying a badge is a meaningless one. If the person to whom statements are made is either a law enforcement agent or one doing the bidding of law enforcement, then those statements should be deemed "testimonial" under the Sixth Amendment and they should not be admitted unless the declarant is unavailable at trial and was subject to cross-examination about the statement at an earlier time. The second element of that test will never been met in the informant situation and those statements should be thrown out.
 

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The Supreme Court last week applied a newly-invigorated Confrontation Clause to deny the admission at trial of drug lab test certificates in an opinion which may unintentionally prove very useful to attorneys defending criminal tax cases.

In Melendez-Diaz v. Massachusetts, 2009 U.S. LEXIS 4734 (June, 25, 2009), the Court unremarkably extended the reach of Crawford v. Washington, 541 U.S. 36 (2004) to the test reports of crime laboratories, holding that the admission in a Massachusetts trial of a laboratory report showing that a seized substance was cocaine violated the defendant's Confrontation Clause rights; the State was obliged instead to produce witnesses in court to establish the drug's chain of custody and the testing conclusion. The dissent argued less forcefully that the majority's conclusion was unwarranted or surprising after Crawford, and more effectively that a practical consequence of the decision would be to strain the resources of crime labs everywhere.

But one legal argument posited by the four Justices in dissent was that the lab certificate of results was akin to a business records certificate offered under FRE 803(6), which, even after Crawford, may be admitted in the absence of a live witness. Justice Scalia, writing for the five-Justice majority, dismissed this comparison. First, the business of a crime lab is to produce evidence for use at trial and so it does not share the routineness and regularity of a true business, leaving the former's products -- drug test reports -- outside the scope of Rule 803(6). Second, true business records are neutrally created for the purpose of administering an entity, rendering them non-testimonial when offered in a criminal trial and thus outside the Confrontation Clause, while police lab reports are prepared specifically for use at such a trial and to inculpate a defendant, so are testimonial and subject to the Confrontation Clause. Id. at *31-33.

To further make its point, the majority contrasted non-testimonial clerks' certificates as to records located in a business or government office with "those cases in which the prosecution sought to admit into evidence a clerk's certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it … the clerk's statement would serve as substantive evidence against the defendant whose guilt depended on the non-existence of the record for which the clerk searched. Although the clerk's certificate would qualify as an official record [in the sense of FRE 803(6) and 803(8)] the clerk was nonetheless subject to confrontation." Id. at *31.

In myriad criminal cases the government is required as an essential element to prove the absence of an official record in order to establish guilt, but perhaps this is most often true in tax prosecutions. Whether seeking to prove a misdemeanor failure to file returns, 26 U.S.C. § 7203, or a felony Spies tax evasion where an act in furtherance is the failure to file returns, 26 U.S.C. § 7201, the prosecutor typically relies on a certificate from the IRS records center that no return is on file for the given year(s). Defense attorneys can now use Melendez-Diaz to argue that any and all IRS personnel involved in the search for the missing filing must be called as live witnesses in court, since the IRS certificate of non-filing cannot be admitted without violating the defendant-taxpayer's constitutional right of confrontation.
 

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In three recent decisions, the New Jersey Supreme Court considered and applied the parameters of the United States Supreme Court case of Crawford v. Washington, 541 U.S. 36 (2004) to similar, but distinct questions of evidence admissibility.  In Crawford, the Court held that under the Confrontation Clause of the Sixth Amendment, “[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross examine.”  Id. at 59.  The three New Jersey Supreme Court opinions, State v. Ryan Buda (A-45/5-07), State in the Interest of J.A. (A-2-07), and State v. William Sweet (A-1-07)/State v. James Dorman (A-38-07), required the court to consider whether certain types of evidence ran afoul of the Confrontation Clause and the holding in Crawford.

In State v. Ryan Buda, the court was asked to evaluate whether two separate hearsay statements made by a severely abused child were “testimonial” under Crawford and therefore inadmissible without the child testifying and being subjected to cross examination.  The first statement made by the child – “Daddy beat me” – was made to the child’s mother.  The second statement – “Dad says nobody beat me.  I fell when I was sleeping in my room.” – was made to a representative of the Division of Youth and Family Services (DYFS) who was called in to speak to the child after he had been hospitalized for injuries.  Buda was charged with three counts of second degree endangering the welfare of a child and one count of third degree aggravated assault, and the child did not testify at trial.  The trial court held that both statements were excited utterances and admissible.  On appeal, the appellate division affirmed that the statements were excited utterances, and further found that the statement to the child’s mother was admissible but the statement to the DYFS worker was testimonial and inadmissible because the child did not testify at Buda’s trial and was not subject to cross examination.

The New Jersey Supreme Court affirmed in part and reversed in part, holding that the trial court was correct in admitting the statements into evidence as “excited utterances” under N.J.R.E. 803(c)(2) [FRE 803(2)] and, further, that the statements were not testimonial and did not violate the Confrontation Clause.  All parties agreed that the child’s statements were hearsay, and the court easily held that the statement to the mother was an excited utterance.  The statement to the DYFS worker presented a “closer question,” but was still an excited utterance, considering the context in which it was delivered and the time and circumstances that elapsed between the child’s abuse that day and when the statement was made.  Moving to the Crawford analysis, the court concluded that the child’s statement to his mother was nontestimonial because it did not “bear the indicia of a ‘formal statement to government officers’” and instead was more like “ ‘a casual remark to an acquaintance.’”  Buda at p. 32 (citing Crawford, 541 U.S. at 51).  It then considered whether the child’s statement to the DYFS worker was nontestimonial.  The court rejected the conclusion that the DYFS worker stood in the shoes of a polices officer and therefore, the statement was the result of a policy inquiry.  Instead, the court believed that the DYFS worker, in questioning the child, was confronted with a battered child who needed protection from the adults charged with his care, and the worker took the necessary steps to attain that protection.  Her question to the child was designed to elicit information that would help her determine how to remove the threat of continued bodily harm, and possibly even death, to the child.  The court noted that the primarily obligation of a DYFS worker is “to protect prospectively a child in need” and “not to collect evidence of past events to secure the prosecution of an offender.”  Buda at p. 34.  The court drew an analogy to Davis v. Washington, 547 U.S. 813 (2006), where the United States Supreme Court held that a statement during a 911 call was nontestimonial, even though made in the course of a police interrogation, because the primary purpose was to enable police to meet an ongoing emergency.  Accordingly, the New Jersey Supreme Court concluded that both of the child’s statements were excited utterances and nontestimonial, and therefore admissible.

In State in the Interest of J.A. (A-2-70), the New Jersey Supreme Court tackled the issue of whether statements made by a non-testifying witness, to a police officer, and describing a robbery that had been committed ten minutes earlier and the witness’ subsequent pursuit of the robbers, were admissible.  In this case, two juveniles robbed a woman and ran off with her purse.  A police officer responded to the scene and eventually found a witness to the robbery about a block and a half away from where the robbery took place.  At trial, the officer was allowed to testify about the witness’ account of the robbery as a present sense impression, and therefore an exception to the hearsay rule under N.J.R.E. 803(c)(1) [FRE803(1)].  The witness did not testify.  Likely due in large part to the statements made by the non-testifying witness, the family court adjudicated J.A. as delinquent and the appellate division affirmed that adjudication.  The appellate division concluded that the witness’ statements were admissible under the present sense impression and the excited utterance exceptions to the hearsay rule, and, further, that the admission of those statements did not violate the Confrontation Clause.  The appellate division concluded that the witness’ statements were nontestimonial because “an ‘objective witness’ would not have reasonably believed they would be available for use in a later trial.”  The Supreme Court then held that the witness’ hearsay statements were a narrative of past events, and that neither the declarant, nor the victim were in imminent danger when the statements were made, and therefore ineligible for an exception to the hearsay rule.  The court further found that the statements were testimonial and the admission of such statements violated the defendant’s Sixth Amendment rights because the witness was not produced at trial and subject to cross examination.

In reaching its conclusion, the Supreme Court held that the witness’ statements conveying the details of a robbery that had occurred ten minutes earlier did not describe the crime “immediately after” it occurred, and therefore, were not admissible under the present sense exception.  The Supreme Court then clarified that a statement which does not qualify for admission under a present sense exception can be admissible as an excited utterance, but the facts elicited on the record in this case did not support such a conclusion.  Finally, the court moved on to the Confrontation Clause question, noting the “seismic shift” in modern jurisprudence on the subject created by Crawford.  The court explained that the non-testifying witness in this case described “what had happened” to the officer, and that at that time, there was no ongoing emergency or immediate danger.  The Supreme Court then concluded that a narrative delivered after a crime has been completed and after the conclusion of any imminent danger to the declarant or someone else, is testimonial.  J.A. at p. 32.  The court also held that the witness’ statements to the police officer met the formality and solemnity requirements of Crawford and that the out-of-court statement was the equivalent of in-court testimony, without being subject to cross examination.  Id. at 34.  All of these factors led to the conclusion (with little difficulty) that the witness’ statements to the police officer were testimonial and the admission of that testimony violated the defendant’s Sixth Amendment right to confrontation.  Id. at 35.

Finally, in State v. William Sweet (A-1-07) and State v. James Dorman (A-33-07), the court addressed whether the introduction into evidence of foundational documents concerning the operational status of a Breathalyzer machine used to attain two separate driving while intoxicated convictions violated the defendants’ right to confront a witness against them.

At trial, defendant William Sweet (charged with driving while intoxicated and assorted other traffic violations) challenged the admissibility of two “Certificates of Analysis – Breath Alcohol Reagent Ampoule” that were prepared by a laboratory and concerned certain reagent ampoules used in the breathalyzer on the basis that the certificates were inadmissible hearsay.  Likewise, defendant James Dorman, also charged with driving while intoxicated, challenged the admissibility of two “Breath Testing Instrument Inspection Certificates,” claiming that the documents were testimonial and inadmissible under the Confrontation Clause.  All documents were admitted at the municipal court level.

On appeal, the New Jersey Supreme Court held that the ampoule testing certificates in Sweet and the inspection certificates in Dorman were hearsay statements.  However, those “statements” were admissible under the business records exception to the hearsay rule, codified at N.J.R.E. 803(c)(6) [FRE 803(6)].  In order to qualify under this exception to the hearsay rule, the court explained that the proponent must satisfy three conditions: (1) the writing is made in the regular course of business; (2) the writing must be prepared within a short time of the act, condition, or event described; and (3) the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.  State v. Sweet, State v. Dorman, at p. 17.  The court concluded that all of the certificates that were the subject of these appeals qualified as business records.

Further, the court held that the records were nontestimonial under Crawford and, accordingly, admissible under the Confrontation Clause.  Regarding the Crawford analysis, the court noted that, under the jurisprudence of that case, business records are considered, by their nature, to be nontestimonial, and consequently, usually not implicating the Confrontation Clause.  The court agreed that these certificates were nontestimonial because neither of them “related to or reported a past fact”, and neither of them was “generated or prepared in order to establish any fact” that was an element of the offense.  Id. at p. 21.  The court unanimously affirmed the convictions of both Sweet and Dorfman.  

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