Certification
violates Confrontation Clause
Defendant
must be able to cross-examine
By
David Ziemer
david.ziemer@wislawjournal.com
August
13, 2007
| What
the court held Case:
State of Wisconsin v. Car-men L. Doss, No. 2006AP2254-CR. Issue:
Is three days sufficient notice to inspect bank records, under sec. 891.24? Does
the admission of business records by verification, without live testimony, violate
the Confrontation Clause? Holdings:
No. A defendant
is entitled to greater opportunity to inspect the records before trial. Yes.
The certification is “testimonial,” and therefore, the defendant must be allowed
to cross-examine the affiant. Attorneys:
For Appellant:
Henak, Robert R., Milwaukee; For Respondent: Gansner, William L., Madison; Loebel,
Karen A., Milwaukee |
Bank
records are inadmissible in a criminal trial without a live witness from the bank,
the Wisconsin Court of Appeals held on Aug. 7.
Carmen
L. Doss was charged with theft by a trustee or bailee as a result of her handling
of her father’s estate.
Despite
a dispute with the Department of Revenue over whether taxes were owed to the state,
Doss closed the estate’s account with M&I Bank and spent the money.
At
trial, over Doss’ objection, certified records of the M&I Bank and the
SunTrust Bank were admitted into evidence, to prove the transfer of funds from
one bank to the other and the subsequent total withdrawal. The jury found her
guilty, and she appealed.
The
court of appeals reversed, in a decision by Judge Ted E. Wedemeyer, Jr., holding
that the admission of the records violated the statutory requirements of sec.
891.24 and the Confrontation Clause.
Opportunity
to Inspect
The
statute states that a bank’s record books of a particular account need not
be produced for a trial if two conditions are fulfilled: (1) a sworn verification
is provided attesting to the factual truth of the copied account entries presented;
and (2) the original records are open for the inspection of all parties to the
action.
The
court concluded that the state failed to make the records open for inspection,
because the state did not notify Doss’ counsel of its intent to present the
records until the Friday before the Monday trial.
Calling
Doss’ opportunity to inspect the records “diminutive at best,”
the court concluded that the state failed to comply with the second statutory
requirement.
Confrontation
Clause
The
court also held that the admission of the records violated the Confrontation Clause.
The
records themselves are admissible, even though they are hearsay, pursuant to sec.
908.03(6) — records of regularly conducted activity.
The
statute also permits the records to be admitted without a live witness, because
sec. 891.24 allows them to be admitted with verification instead of testimony
by an officer of the financial institution.
However,
the court concluded that the statement of verification is “a second tier
of hearsay that can strike at the very heart of confrontation protection.”
The court
concluded, “The affidavits of verification filed on behalf of the M&I
Bank and the SunTrust Bank are out-of-court statements offered for the truth of
the facts asserted within the affidavits, i.e., that the attached records are
authentic and constitute the business records of the bank. Because the statements
contained in each affidavit attest to the truth of certain facts under oath, such
statements are testimonial.”
The
court concluded that, because the verifications were made with the intent that
be used at trial, they qualify as “testimonial” statements subject to
the Confrontation Clause.
Because
Doss had no opportunity to cross-examine the affiants who made the verifications
that the records were accurate, the court concluded that their admission into
evidence, without a live witness, violated Doss’ confrontation rights.
After
finding the error was not harmless, the court affirmed.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
