Wednesday, June 22, 2011

OUI Appeal - Mass. Court Says Registry Records Violate Confrontation Clause

In our 3rd installment of a 3-day series on government records - admissibility and confrontation - is a case provided by Lloyd Boyer and Thomas Workman. In Commonwealth v. Parenteau, the Supreme Court of Massachusetts held that certain RMV records were admitted in violation of the Confrontation Clause. The document in question was actually a certificate from the registry of motor vehicles (registry) attesting to the fact that a notice of license suspension or revocation was mailed to the defendant, Peter L. Parenteau, on May 2, 2007:

"The thrust of the defendant's argument is that the admission in evidence of the registry certificate, in the absence of testimony from a registry witness, violated his right to confrontation under the Sixth Amendment. The defendant contends that the certificate was created exclusively for trial so the Commonwealth could prove a fact necessary to convict him, namely, that he had been notified of the ten-year revocation of his driver's license. Because he challenged such notice, the defendant continues, any attested document that served as evidence to the contrary was a testimonial statement that was subject to cross-examination. We agree."

The court discussed the basic confrontation clause prohibition:

"[T]he United States Supreme Court held that the out-of-court "[t]estimonial" statements of a witness are inadmissible at trial except where the witness is unavailable and the defendant had a prior opportunity for cross-examination. The Court stated that the confrontation clause applies to "witnesses" against the accused, "in other words, those who 'bear testimony.' " Id. at 51, quoting 2 N. Webster, An American Dictionary of the English Language (1828). " 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " Crawford v. Washington, supra, quoting Webster, supra. Although the Supreme Court declined to articulate a "comprehensive definition" of "testimonial" statements, Crawford, supra at 68, it did describe various formulations of the "core class" of such statements:

"[ (1) ] ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[; (2) ] 'extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'[; or (3) ] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

Explaining why this particular document violated the confrontation clause (as opposed to other RMV records), the court explained:

"We conclude that the registry certificate, like a certificate of drug analysis, is testimonial in nature. It is a solemn declaration made by the registrar for the purpose of establishing the fact that a notice of license revocation was mailed to the defendant on May 2, 2007, and, by inference, was received by him. The registry certificate was dated July 24, 2009, nearly two months after the criminal complaint for operating a motor vehicle after license revocation had issued against the defendant. As such, it plainly was made for use at the defendant's trial as prima facie evidence that he was notified of his license revocation, an essential element of the charged crime that the Commonwealth was required to prove. The certificate did not simply attest to the existence and authenticity of records kept by the registry but made a factual representation based on those records that a particular action had been performed--notice had been mailed on a specified date. See, e.g., State v. Jasper, 158 Wash.App. 518, 531-532 (2010) (affidavit from legal custodian of driving records attesting that records showed that defendant's driver's license was suspended on particular day was testimonial for confrontation clause purposes). The mere existence of a copy of the notice of license revocation in the registrar's files did not, in and of itself, constitute proof that it was mailed to the defendant. Because the certificate is a testimonial statement, its admission at trial in the absence of testimony from a registry witness violated the defendant's Sixth Amendment right to confrontation."

In rejecting the State's argument that the attestation was a business record, the court stated:

"[T]he Court pointed out in Melendez-Diaz, supra at 2538, that business records are not admissible at trial "if the regularly conducted business activity is the production of evidence for use at trial." See Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (holding that accident report provided by railroad company employee did not qualify as business record where essentially prepared for use "in litigating, not in railroading"). It followed, therefore, that a clerk "was permitted 'to certify to the correctness of a copy of a record kept in his office,' but had 'no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.' " Melendez-Diaz, supra at 2539, quoting State v. Wilson, 141 La. 404, 409 (1917). The Court in Melendez-Diaz further explained that "[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because--having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-- they are not testimonial." Melendez-Diaz, supra at 2539-2540. See Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5-7 (2010) (holding that admission in evidence of certified copies of docket sheets of defendant's prior convictions did not violate defendant's Sixth Amendment right to confrontation because such records are not testimonial). Thus, when determining the admissibility of a particular business record, a court must examine carefully the purpose for which it was created. See id. at 5.

"We agree with the Commonwealth that the actual notice of the defendant's license revocation, dated May 2, 2007, constitutes a business record of the registry, created and kept in the ordinary course of its affairs. [FN9] However, there is no evidence of the existence of a contemporaneous business record showing that the notice was mailed on that date. If such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial. That would have been the correct procedure for the admission of a business record from the registry. Here, however, the only evidence that the notice was mailed to the defendant is the registry certificate dated July 24, 2009, three months before trial, attesting to that fact. Such certificate was not created as part of the administration of the registry's regular business affairs, but for the purpose of establishing an essential fact at trial. Accordingly, the registry certificate did not constitute a nontestimonial business record."

Concluding that the admission of the certificate of service was improperly admitted, the court reversed the conviction and remanded for further proceedings.

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