Confrontation
Case Analysis
August
13, 2007
The
decision should be considered a good candidate for review, because it creates
a conflict with governing federal law, set forth in U.S. v. Ellis, 460 F.3d 920
(7th Cir. 2006).
Ellis
was charged with illegal possession of firearms, after being arrested for driving
erratically. At trial, the government sought to introduce the results of blood
and urine tests performed on Ellis, to prove that Ellis was a user of a controlled
substance.
The
government complied with Rule 902(11). Similar to Wisconsin statute 891.24, Rule
902(11) allows for the admission of records of regularly conducted activity through
verification, rather than live testimony.
The
Seventh Circuit held that the records themselves, even though prepared for the
purpose of criminal prosecution, were not testimonial, citing Crawford v. Washington,
541 U.S. 36, 56 (2004). Ellis, 460 F.3d at 925.
The
court then held that Rule 902(11) does not violate the Confrontation Clause.
The
court wrote, “we do not find as controlling the fact that a certification
of authenticity under 902(11) is made in anticipation of litigation. What is compelling
is that Crawford expressly identified business records as nontestimonial evidence.
Given the records themselves do not fall within the constitutional guarantee provided
by the Confrontation Clause, it would be odd to hold that the foundational evidence
authenticating the records do (cites omitted).”
The court
continued, “The certification ... is nothing more than the custodian of records
... attesting that the submitted documents are actually records kept in the ordinary
course of business... The statements do not purport to convey information about
Ellis, but merely establish the existence of the procedures necessary to create
a business record. They are made by the custodian of records, an employee of the
business as part of her job. As such, we hold that the written certification entered
into evidence pursuant to Rule 902(11) is nontestimonial just as the underlying
business records are. Both of these pieces of evidence are too far removed from
the ‘principal evil at which the Confrontation Clause was directed’
to be considered testimonial (cite omitted).”
Thus,
even though the rules of evidence are substantively the same, there is now a split
between Wisconsin state and federal courts, on whether business records can be
admitted via certification in lieu of testimony.
However,
it should be noted that the Wisconsin Court of Appeals is not alone in its analysis.
An unpublished decision from the U.S. District Court for Kansas agrees that presentation
of business records via certification is unconstitutional. See U.S. v. Wittig,
2005 WL 1227790 (D.Kan., May 23, 2005).
Click
here for Main Story.
David
Ziemer can be reached by email.
