It would be hard to overstate the impact of the Supreme Court’s recent cases on the Confrontation Clause.
Starting with Crawford v Washington, the Court has given much more meat to the requirement that if testimony is going to be used against someone in a criminal case, the person giving the testimony has to be in the courtroom and actually testifying.
Some of these changes are slow moving. Even though Crawford was decided in 2004 – whether business records provide an exception to the confrontation requirement has been a little unclear. Happily, the First Circuit clarified that business records are not automatically excluded from the Confrontation Clause.
If you’re a criminal defense lawyer, that last paragraph made sense. If you’re not, it was probably soup. A little background is in order (feel free to skip to the next heading if you already know this).
A Little Background
The Confrontation Clause deals with out-of-court statements. Of course, as any good viewer of Law and Order can tell you, these statements are also hearsay. The interplay between hearsay and the Confrontation Clause and the hearsay rules used to be quite strong. It is now significantly weaker.
Back in the day, the rule was that if the government wanted to introduce someone’s out of court statement against a person accused of a crime, the statement had to be generally reliable. Being “generally reliable” meant, generally, that the statement fell within a hearsay exception.
The Confrontation Clause analysis collapsed significantly into the hearsay analysis.
Crawford changed that. In Crawford, the Supreme Court held that out of court statements which are “testimonial” have to be subject to cross-examination – meaning the person who made them has to show up in court and be asked questions by the defense lawyer. It won’t do under the Confrontation Clause to simply have someone else repeat the out of court statement, or introduce into evidence some place where the person wrote it down.
Fair enough, but what counts as a “testimonial” statement?
Generally speaking, the Court explained that a testimonial statement is one that was prepared in preparation for a court case. I say “generally speaking” because the Supreme Court has yet to provide us with a comprehensive definition of what counts as testimonial.
Can Business Records Be Testimonial?
In Crawford, the Court suggested that business records don’t seem to be testimonial. Normally, the phone company doesn’t create a phone bill so that it can be used in a later prosecution – it does it so I know how many minutes I’ve used and so they’ll get paid.
Prosecutors, being a crafty sort, then tried to argue that all kinds of law enforcement records were just “business records” – so the Confrontation Clause didn’t apply.
In Melendez-Diaz, for example, the government tried to argue that lab reports from a drug testing lab were just business records.
The Court wasn’t sympathetic to that view. While it may be that the D.E.A.’s lab’s “business” is to generate drug test reports, it’s also true that these reports are made pretty much for the exclusive purpose of putting people in prison later.
So, again, if what you focus on is whether these records were created with a later prosecution in mind, you’ll see that sometimes business records are testimonial (at least has the Court has gestured at a definition of “testimonial”).
Child Pornography in Maine
Which brings us to United States v. Cameron.
Yahoo! was tipped off to the presence of some child pornography somewhere in the tendrils of its internet domain.
Yahoo!, like any internet company, is required to make a report to the National Center for Missing and Exploited Children (we’ll call it “NCMEC” from here on out). when it hears that there’s child porn in its internet world.
Yahoo!, as is its practice, then compiled a report about what the child porn was, where it was, and the IP address of where it was found. This report was sent to the NCMEC.
NCMEC forwarded that report along to law enforcement.
Law enforcement tracked down the IP address, and found that it went to Mr. Cameron’s house.
A search warrant was obtained, and child pornography was found at Mr. Cameron’s house.
He was charged with a number of child porn offenses and went to a bench trial. He lost and was sentenced to 192 months in prison.
The Business Records At Trial
At trial, two kinds of business records were introduced against Mr. Cameron.
The first kind were logs of activities on the Yahoo! (and also a Google) account. These the First Circuit had no trouble finding were not a Confrontation Clause problem. They were kept because that’s what internet companies do in order to keep their internet companies running. Once the right foundation that they were business records was laid, they were properly admissible, the court found.
The second, though, were not. The reports to NCMEC, the First Circuit found, were “testimonial.” So even though they were also business records, the information in them had to come in through a live witness who collected the child pornography information in the first place.
As the First Circuit said of these Child Pornography (or “CP”) Reports:
Thus, although the CP Reports may have been created in the ordinary course of Yahoo!’s business, they were also testimonial; the receipts of the Reports, therefore, should not have been admitted without giving Cameron the opportunity to cross-examine the Yahoo! employees who prepared the CP Reports.
The appellate court’s analysis is nice.
We start by objectively viewing the evidence to determine the “primary purpose” of the Reports. Firstly, we note that the CP Reports refer to a “Suspect Screen Name,” a “Suspect Email Address,” and a “Suspect IP Address.” A “suspect” is “one who is suspected; esp. one suspected of a crime or of being infected.” Webster’s Third New International Dictionary 2303 (2002). There was no testimony from Lee, nor any other evidence, that Yahoo! treated its customers as “suspects” in the ordinary course of its business.
Also, the reports are automatically forwarded to NCMEC, which exists, in part, to forward such reports to law enforcement.
The First Circuit concluded that
Given that Yahoo! created CP Reports referring to “Suspect[s]” and sent them to an organization that is given a government grant to forward any such reports to law enforcement, itis clear that under the “objective test” required by Williams, 132 S. Ct. at 2243, the primary purpose of the CP Reports was to “establish or prov[e] past events potentially relevant to later criminal prosecution.”
It’s a lovely opinion. If you have a child pornography case or a confrontation clause case, please read it, there’s a lot I haven’t covered here.
Mr. Cameron’s convictions for a number of counts were vacated and the case was remanded for either a new trial or resentencing.