Growing Consensus That Immigration File Documents Are Non-Testimonial Under Crawford

Seal of the 7th Circuit  Court of Appeals

Seventh Circuit joins five other circuits in finding immigration file documents are non-testimonial hearsay under Crawford v. Washington, in United States v. Burgos, 539 F.3d 641 (7th Cir. Aug. 22, 2008) (No. 06-4091)

A consensus is developing among the circuits on whether immigration file documents are “testimonial” or not under Crawford v. Washington, 541 U.S. 36 (2004).

In United States v. Burgos, the Seventh Circuit addressed and resolved this open issue: “[U]nder the Sixth Amendment’s Confrontation Clause, whether the government may use at trial the contents of the defendant’s alien-registration file (his “A-file”) -- specifically, a warrant of deportation and a “certificate of nonexistence of record”-- to prove its case.” Burgos, 541 F.3d at 642.

The Seventh Circuit concluded the immigration documents did not fall within the definition of “testimonial” statements. Burgos, 541 F.3d at 644 (citing Davis v. Washington, 547 U.S. 813, 822 (2006) (noting “statements to police are nontestimonial ‘when made in the course of police interrogation under circumstances objectively indicating that the primary purpose . . . is to enable police assistance to meet an ongoing emergency’”; statements are testimonial “when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”)). As noted in the opinion, the following circuits have taken a similar position: First, Fifth, Eighth, Ninth and Eleventh Circuits.

One question raised by this emerging consensus is whether the non-testimonial nature of these immigration documents may be extended to other documents?

Federal Rules of Evidence