Following the Supreme Court's Confrontation Clause jurisprudence over the last ten years, since the decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), and the resulting interpretations of lower courts, has proven to be an uncertain and sometimes dizzying ride.  The Court did not initially enunciate a test to determine the admissibility of out-of-court statements made by unavailable witnesses sufficiently brightly-lined to permit anything approaching predictable outcomes in individual cases.  As discussed here, here, and here, the overall result has been less a bright line than a dimly illuminated, shifting path.

The starting point derived from the cases is that an out-of-court statement is "testimonial" if its primary purpose is to establish facts for use at a trial.  Crawford, 124 S. Ct. at 1354; Davis v. Washington, 547 U.S. 813, 822 (2006).  We are also informed that statements which qualify as "business records" under Fed. R. Evid. 803(6) are still admissible without live witness testimony, because they are "nontestimonial," serving to record transactions of an entity and not to memorialize facts for trial.  Melendez-Diaz v. Massachussetts, 557 U.S. 305, 324 (2009).  (As discussed here, in a concurring opinion in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), Justice Sotomayor suggested other theories to save the admission of seemingly "testimonial" statements, such as are found in laboratory results (including the introduction of lab test data through an independent expert, testifying under Fed. R. Evid. 703 as to hearsay test results generated by another; stripping away technician opinions and conclusions from the lab results, leaving only machine-produced data)).

The Fifth Circuit recently examined the Confrontation Clause implications of the admission in a trial of an old affidavit created for an unrelated purpose by a deceased declarant.  In United States v. Duron-Caldera, 737 F.3d 988 (9th Cir. 2013), the defendant was charged with being an alien who illegally re-entered the country.  The government was required to prove that the defendant was an alien, i.e., that he lacked U.S. citizenship, when he re-entered.  His defense was that he was indeed a citizen, having been born in the U.S. to an alien mother who had been physically present in the U.S. for a sufficient number of years before his birth to confer citizenship rights on her newborn son.  To debunk that theory, the government was permitted to introduce an affidavit executed 40 years earlier by the defendant's maternal grandmother, calling into question her daughter's (the defendant's mother's) date of entry and duration of stay in this country.  The affidavit had been prepared in connection with an administrative document fraud investigation, and the affiant was deceased, so not avaiable for the defendant's trial; the record is not clear, but the affidavit was offered and admitted either as a government record under Fed. R. Evid. 803(8) or a Rule 803(6) business record of the government agency.

The district court admitted the Immigration affidavit, and the defendant was convicted.  However, the Ninth Circuit vacated the conviction and held that the affidavit was admitted in violation of the defendant's Confrontation Clause rights.  The grandmother's statement was clearly an affidavit, the paradigm type of testimonial statement whose use as trial evidence was abjured by Crawford.  Moreover, the government had not met its burden of showing a nontestimonial purpose for its creation.  To the contrary, there was evidence that the affidavit was in fact prepared for trial use, since it was created during a document fraud investigation and since it exculpated the affiant but implicated others in creating false citizenship documents; it was not doctrinally significant that the trial for which it was prepared was a different trial than the present one.  Further, the admission of the affidavit was not saved by viewing it as business record of the agency, because the usual requirements of such records were not established, including that the source of the documented information was someone providing information in the regular course of business.

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