Federal Evidence Review

D.C. Circuit notes open issue whether admission of self-authenticated, certified business records may violate the confrontation clause, in United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. 2008).

Traditionally, the introduction of business records required a custodian of records, or other qualified witness, to testify at trial to establish the foundation to admit the records. For example, a bank custodian could provide a foundation for authentication by testifying concerning banking records under the business records hearsay exception.

After a 2000 amendment, business records can be introduced without a foundational witness where a “certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification” accompanies the records. See ACN (2000) (FRE 803) (“The amendment provides that the foundation requirements of Rule 803(6) can be satisfied under certain circumstances without the expense and inconvenience of producing time-consuming foundation witnesses…. Protections are provided by the authentication requirements of Rule 902(11) for domestic records, Rule 902(12) for foreign records in civil cases, and 18 U.S.C. § 3505 for foreign records in criminal cases.”). FRE Rule 902(11) has been frequently invoked to admit business records.

Four years after the rules were amended, the Supreme Court decided Crawford v. Washington, 541 U.S. 36, 68 (2004). In that landmark decision, the Court held that: “Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68. Under Crawford, “testimonial” hearsay statements at a minimum includes statements made to law enforcement officials engaged “in the production of testimony with an eye toward trial” such as “affidavits, custodial examinations, … affidavits, depositions, prior testimony, or confessions.” Crawford, 541 U.S. at 56 n.7.

If the business records are “testimonial,” including “production … with an eye toward trial,” would the Confrontation Clause be implicated in a criminal case? The D.C. Circuit recently noted this open issue.

In Hemphill, two defendants were prosecuted for embezzling millions of dollars from the Washington Teachers Union. The government called an auditor to testify at trial concerning summaries of transactions he reviewed. The transactions were certified under FRE 902(11). Defendant Hemphill contended that “the documents’ certifications as business records, pursuant to Rule 902(11), violated the Confrontation Clause because she could not confront the documents’ custodians.” United States v. Hemphill, 514 F.3d 1350, 1358-59 n.2 (D.C. Cir. 2008). It was unnecessary to address this issue. The circuit noted:

“It is unclear whether certifications are testimonial evidence, since they are, after all, affidavits prepared purposefully for use in prosecution; this court has not decided the question. We do not address it here, because Hemphill has not presented the issue. Instead, she suggests the chart evidence itself violated the Confrontation Clause. Needless to say, bank records and credit card statements are not testimonial evidence, and that is what the Confrontation Clause regulates. Crawford v. Washington, 541 U.S. 36, 68 (2004).”

Hemphill, 514 F.3d 1350, 1358-59 n.2 (citations omitted).

The circuit cited other cases which had noted but did not resolve this issue. This issue is a significant one. In an appropriate case, if admission of the certification violates the Confrontation Clause, then a custodian or other official may be needed to introduce the business records. This conclusion would restore the requirement to admit business records with a custodian or other qualified witness.