VIII. The Right to Confront Witness Who Made Specific Types of Statements

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

VIII. The Right to Confront Witness Who Made Specific Types of StatementsA. Official Records

Federal and state courts have recently addressed the confrontation implications of a range of official records.

1. Laboratory Reports

Certificates of the chemical analysis of drugs, like those at issue in Melendez-Diaz, are generally considered testimonial because they are akin to the testimony a forensic analyst would be expected to give on direct examination.²⁵⁴ State courts have held that certificates describing the results of breath-alcohol tests are testimonial because their sole purpose is to assist the government in prosecuting DWI cases.²⁵⁵ The same rationale has been applied to certificates of analysis containing results of DNA testing in rape cases.²⁵⁶

2. Medical Examiner Reports

Autopsy reports and death certificates serve both testimonial and nontestimonial purposes.²⁵⁷ A recent federal district court decision deemed both statements testimonial despite the fact that the medical examiner "did not perform an autopsy on Sgt. Johnson's body solely to gather evidence for use in a future prosecution."²⁵⁸ According to the court, it was enough that she was "aware" that the autopsy report would be available for use at trial and that the statements at issue were "marked by a formality characteristic of documents to be introduced in court."²⁵⁹ Thus, the government could not engage in an "end run around Crawford" by having another medical examiner testify to statements made in either document.²⁶⁰

3. Criminal Records

One federal court has held that judgments of conviction are testimonial statements when offered to prove facts underlying the charged crime.²⁶¹ Another reached the same conclusion for a letter from the court clerk stating that the defendant had previously been convicted of a felony.²⁶² Similarly, some state courts have found that a federal plea agreement was a testimonial statement.²⁶³

4. Certificates of Nonrecord

Most courts have ruled that certificates of nonexistence of official records are testimonial statements. For example, in United States v. Martinez-Rios,²⁶⁴ the Fifth Circuit found that certificates of nonexistence of records require confrontation because these statements are created specifically for use at trial and not produced in the ordinary course of regular government business.²⁶⁵

5. Nontestimonial Official Records

Various other types of official records have been deemed nontestimonial. For example, one appeals court found that a certification and affidavit authenticating cell phone records were nontestimonial business records.²⁶⁶ A trial court noted that a fill-in-the-blank style laboratory report (where the statement was made by checking boxes and copying test results) might not raise confrontation concerns under Melendez-Diaz.²⁶⁷ Courts have also determined that completed applications for Federal Emergency Management Agency assistance,²⁶⁸ criminal records,²⁶⁹ customer directories,²⁷⁰ immigration records,²⁷¹ and motor vehicle records²⁷² are nontestimonial because they were not created to provide evidence at a trial.²⁷³

6. Stipulations

Most post-Melendez-Diaz courts have concluded that a defense stipulation to the admission of a laboratory report effectively waives the defendant's right to later argue that the admission of the report was a Confrontation Clause violation.²⁷⁴ However, some courts have noted that a stipulation does not constitute a waiver if defense counsel made it over the defendant's objection.²⁷⁵

7. Notice-and-Demand Statutes

Some states have enacted notice-and-demand statutes designed to expedite and simplify prosecutions by limiting the circumstances under which prosecution experts are called to testify at trial as to the contents of official records.²⁷⁶ These statutes generally require that the prosecutor give "notice" to the defense that the state will seek to introduce an official record (such as a laboratory report) and then the burden shifts to the defense to "demand" that the expert witness testify at trial. One commentator has identified four different burden-shifting statues of this type: (1) notice-and-demand statutes; (2) notice-and-demand statutes that impose additional requirements on the defense; (3) statutes that require little if any notice, but require a defense demand; and (4) statutes that require the defense to subpoena prosecution experts.²⁷⁷ The Supreme Court has yet to address the constitutionality of a notice-and-demand statute in this context.

8. Translated Statements

The lower courts are divided on the issue of whether the statements of a foreign language interpreter translating the statements of a non-English-speaking defendant qualify as testimonial statements.²⁷⁸ Most courts have held that the final statements of the interpreter are the same as the original statements of the non-English-speaking defendant because the interpreter functions as a "language conduit" for the defendant, who does not have the right to "confront himself."²⁷⁹ The Eleventh Circuit in United States v. Charles, recently rejected this rationale finding that because language interpretation "does not provide for a one-to-one correspondence between words or concepts in different languages," a language interpreter is not a "language conduit" but a separate declarant from the non-English-speaking defendant, entitling the defendant to confront the language interpreter about statements made by the interpreter.²⁸⁰

B. Nonhearsay Statements

Obviously, the Confrontation Clause does not eliminate all possible prosecution uses of testimonial statements. As the Crawford Court explained, defendants do not have the right to confront nonhearsay statements because the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."²⁸¹

1. Dying Declarations

In Ohio v. Roberts, the Court identified dying declarations as precisely the sort of out-of-court statements that fall within a firmly rooted hearsay exception.²⁸² The Crawford Court had suggested that even testimonial dying declarations do not require confrontation.²⁸³ More recently, some members of the current Court have expressed the view that testimonial dying declarations do not implicate the Confrontation Clause. In Giles, Justice Breyer noted that a dying declaration is one made "when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth."²⁸⁴ Justice Ginsburg reached the same conclusion in her dissenting decision in Bryant.²⁸⁵Although the Supreme Court has yet to decide a post-Crawford case involving the admissibility of dying declarations, the federal and state courts consistently assume that testimonial dying declarations do not raise confrontation concerns.²⁸⁶

2. Statements Seeking Medical Treatment

The Melendez-Diaz Court noted in a footnote that "medical reports created for treatment purposes . . . would not be testimonial under our decision today."²⁸⁷ In 2009, in United States v. Santos, the Fifth Circuit reached a similar conclusion, holding that admission of an stabbing victim's statement to a prison nurse describing his pain was not testimonial because (1) it was made during and to resolve an ongoing emergency and (2) the nurse was not gathering evidence but ascertaining the victim's level of pain.²⁸⁸ Statements that relate to the collection or preservation of medical evidence are more likely to be deemed testimonial.²⁸⁹ Statements are also more likely to be deemed testimonial if the declarant is responding to questions from medical professionals who have forensic training, such as sexual assault nurses²⁹⁰ and members of a child protection team.²⁹¹

3. Statements Offered to Impeach

Courts have consistently assumed that defendants do not have a right to confront testimonial statements admitted solely for impeachment purposes, because these statements are not offered for the truth of the matter asserted. For example, one appeals court²⁹² held that admission of a nontestifying codefendant's out-of-court statement identifying the defendant as the shooter did not violate the Confrontation Clause because the statement was proffered for the nonhearsay purpose of impeaching exculpatory testimony from the defendant.²⁹³More recently, a trial court specifically rejected the defense argument that Crawford bars the admission of testimonial statements offered for impeachment because "[t]he impeaching value of a prior inconsistent statement comes not from the fact that the prior statement is true and the later statement is false, but from the very fact of inconsistency."²⁹⁴Although this question appears generally well settled in the federal and state courts, one court has found—in an unusual situation—that a judgment of conviction used for impeachment was a testimonial statement.²⁹⁵

4. Statements Offered to Prove Notice

When out-of-court statements are offered (not for the truth of the matter asserted) but to prove notice, they generally do not raise confrontation concerns. For example, the admission of Internal Revenue Service documents stating that certain payments to the defendant constituted "wages" was found not to violate the Confrontation Clause.²⁹⁶ These records were offered by the prosecutor not to establish that the defendant had in fact received wages but for the limited purpose of showing that the IRS had placed the defendant on notice by communicating its opinion regarding the payments. Thus, even if the IRS statement was testimonial because it was prepared in anticipation of prosecution, the admission of the statements did not violate the Confrontation Clause.²⁹⁷ An appeals court reached a similar conclusion in a case involving out-of-court statements made by unidentified witnesses because the statements had been admitted not for their substantive truth but to explain the police response.²⁹⁸

C. Statements to Nonofficials

In cases involving statements to people who are not government actors, some...