NOTES

This is the latest and greatest line of cases in the field, so the notes are on the cutting-edge.

4.14 After Crawford: The Emergency Doctrine of Davis v. Washington

• Malavet
  • Postscript to Crawford:
    • Mr. Crawford pleaded guilty to first degree assault, and received a ten year sentence. The plea came on the eve of his retrial on March 30, 2005.
    • At that hearing he asked to be allowed visitation from his wife and son, and the judge agreed to recommend it. "His wife pleaded guilty to third-degree assault and rendering criminal assistance and ha[d] finished her probation [by March of 2005]." Scott Gutierrez, Olympia man guilty in case overruled by Supreme Court, The Olympian (Olympia, WA), March 31, 2005.]
  • RETROACTIVITY?
    • NO, the Crawford rule is not retroactive, as held by a unanimous court in February of 2007. See Whorton v. Bockting, 127 S.Ct. 1173 (February 28, 2007).
  • Davis is the first important attempt by the Supreme Court to define the limits of Crawford
    • Davis does several important things.
    • First, Davis rules that the Sixth Amendment bar against the use of hearsay statements applies only to testimonial statements. This completely overrules Ohio v. Roberts as a constitutional test for hearsay.
    • Second, Davis illustrates the definition of "testimonial" statements in the context of police intervention by creating a continuum that goes from the initial management of an emergency, which does not produce testimonial statements (Davis v. Washington), to the interrogation of witnesses of a crime once law enforcement is in effective control of the scene, which produces testimonial statements (Hammon v. Indiana). In this context, the court also unanimously treats 911 operators as agents of law enforcement for sixth amendment purposes.
• If you want to print out the text, click this link to go to the separate file.
• OPINION: SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part.
• II
  • [CB] The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In  Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), we held that this provision bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A critical portion of this holding, and the portion central to resolution of the two cases now    before us, is the phrase "testimonial statements." Only statements of this sort cause the declarant to be a "witness" within the meaning of the Confrontation Clause. See  id., at 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation   Clause.
  • [CB] Without attempting to produce an exhaustive classification   of all conceivable statements -- or even all conceivable statements in response to police interrogation -- as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They 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. fn1
  • Fn1 Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations -- which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh's Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.
• III
• A
  • [CB] We must decide, therefore, [1] whether the Confrontation Clause applies only to testimonial hearsay; and, [2] if so, whether the recording of a 911 call qualifies.
    [383] The answer to the first question was suggested in Crawford, even if not explicitly held:
    "The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to `witnesses' against the accused-in other words, those who `bear testimony.' 1 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.' An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."
  • [CB] A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its "core," but its perimeter. In Crawford, it sufficed for resolution of the case before us to determine that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class."  Id., at 53,    124 S. Ct. 1354, 158 L. Ed. 2d 177. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by "interrogations." The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call fn2 are an interrogation in one sense, but not in a sense that "qualifies under any conceivable definition." We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies.
  • Fn2 If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and without deciding the point), we consider their acts to be acts of the police. As in  Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), therefore, our holding today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are "testimonial." [Note that Justice Thomas agrees that 911 operators are agents of law enforcement in footnote 1 of his opinion.]
• [Note the reference to unwitting statements to an informant]
  • [CB] Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U.S. 56 (1980),4 never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see Crawford (citing cases), with one arguable exception (discussing White v. Illinois). Where our cases did dispense with those requirements even under the Roberts approach the statements at issue were clearly nontestimonial. See, e.g., Bourjaily v. United States, 483 U.S. 171, 181-184 (1987) (statements made unwittingly to a Government informant); Dutton v. Evans, 400 U.S. 74, 87-89 (1970) (plurality opinion) (statements from one prisoner to another).
  • [CB] When we said in Crawford, that "interrogations by law enforcement officers fall squarely within [the] class" of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, "` [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact."' (The solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood. See, e.g., United States v. Stewart, 433 F.3d 273, 288 (2d Cir. 2006) (false statements made to federal investigators violate 18 U.S.C. §1001); State v. Reed, 695 N.W.2d 315, 323 (Wis. 1005) (state criminal offense to "knowingly giv[e] false information to [an] officer with [the] intent to mislead the officer in the performance of his or her duty").) A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to "establis[h] or prov[e]" some past fact, but to describe current circumstances requiring police assistance.
• [Davis Ruling]
  • [CB] We conclude from all this that the circumstances of McCottry's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testing. What she said was not "a weaker substitute for live testimony" at trial, United States v. Inadi, 475 U.S. 387, 394 (1986), like Lord Cobham's statements in Raleigh's Case, 2 How. St. Tr. 1 (1603), or Jane Dingler's ex parte statements against her husband in King v. Dingier, 168 Eng. Rep. 383 (1791), or Sylvia Crawford's statement in Crawford. In each of those cases, the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues. McCottry's emergency statement does not. No "witness" goes into court to proclaim an emergency and seek help.
• [Hammon Ruling]
  • [CB] Determining the testimonial or nontestimonial character of the statements that were the product of the interrogation in Hammon is a much easier task, since they were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct-as, indeed, the testifying officer expressly acknowledged. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything. When the officers first arrived, Amy told them that things were fine, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Dams) "what is happening," but rather "what happened." Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime which is, of course, precisely what the officer should have done.
  • [The majority points out the forfeiture doctrine. But Justice Scalia focuses on it as a waiver of the Sixth Amendment protection, rather than an exception to the rule.]
• [FORFEITURE]
  • [CB] But when defendants seek to undermine the judicial process by pro¬curing or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that "the rule of forfeiture by wrongdoing ... extinguishes confrontation claims on essentially equitable grounds" (citing Reynolds, 98 U.S., at 158-159). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.
  • [CB] We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using FRE 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the¬evidence standard, see, e.g., United States v. Scott, 284 F.3d 758, 762 (7th Cir. 2002). State courts tend to follow the same practice, see, e.g., Commonwealth v. Edwards, 542, 830 N.E.2d 158, 172 (Mass. 2005). Moreover, if a hearing on forfeiture is required, Edwards, for instance, observed that "hearsay evidence, including the unavailable witness's out-of-court statements, may be considered." The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less necessary, because prosecutors could show the "reliability" of ex parte statements more easily than they could show the defendant's procurement of the witness's absence. Crawford, in overruling Roberts, did not destroy the ability of courts to protect the integrity of their proceedings.
• JUSTICE THOMAS,
  • concurring in the judgment in part and dissenting in part.
    • fn1 Like the Court, I presume the acts of the 911 operator to be the acts of the police. Ante, at 8, n. 2. Accordingly, I refer to both the operator in Davis and the officer in Hammon, and their counterparts in similar cases, collectively as "the police."
    • II
      • Because the standard adopted by the Court today is neither workable nor a targeted attempt to reach the abuses forbidden by the Clause, I concur only in the judgment in Davis v. Washington, No. 05-5224, and respectfully dissent from the Court's resolution of Hammon v. Indiana, No. 05-5705.

4.14.b. Michigan v. Bryant

• [CB] "MICHIGAN v. BRYANT
  • [In Richard Bryant’s jury trial for murder, the court admitted statements by the victim Anthony Covington, made to police who discovered him in a gas station parking lot dying of a gunshot wound to the abdomen.] [Police responded to a radio dispatch at 3:25 A.M. on April 29, 2001, describing a shooting. At the scene, Covington was in pain and spoke with difficulty. Police asked “what had happened, who had shot him, and where the shooting "occurred.” Covington answered that “Rick” Bryant had shot him at about 3:00 A.M., that he had had a conversation with him through the back door of Bryant’s house, and that as he turned to leave he was shot through the door. This conversation lasted 5-10 minutes before emergency medical services arrived, and they transported Covington to a hospital where he died within hours. Police went to Bryant’s house, found blood and a bullet on the back porch and an apparent bullet hole in the door, and also found Covington’s wallet and identification."
  • [CB] "At trial, which took place before Crawford and Davis were decided, officers recounted Covington’s statements, which were admitted as excited utterances. Eventually the Michigan Supreme Court reversed Bryant’s conviction for error in admitting Covington’s statements to police, which were testimonial and did not fit the Davis emergency doctrine. The prosecutor had invoked the dying declaration exception, but did not pursue it, and the Michigan Supreme Court held that the question whether Bryant’s statements fit that exception was not before it.]"
• [Primary Purpose]
  • [CB] But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. Thus, we confront for the first time circumstances in which the “ongoing emergency” discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large. This new context requires us to provide additional clarification with regard to what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”"
• [Objective Totality of the Circumstances Standard]
  • [CB] To determine whether the “primary purpose” of an interrogation is “to enable police assistance to meet an ongoing emergency,” Davis, which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties."
  • [CB] An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the “primary purpose of the interrogation.” The circumstances in which an encounter occurs—e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred. Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination."
• [At that time]
  • [CB] The existence of an ongoing emergency must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight. If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause. The emergency is relevant to the “primary purpose of the interrogation” because of the effect it has on the parties’ purpose, not because of its actual existence. This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” FRE 803(2), are considered reliable because the declarant, in the excitement, presumably cannot forma falsehood."
  • [CB] Second, the question whether an emergency is ongoing involves a “context-dependent inquiry,” and domestic violence cases like Davis and Hammon have “a narrower zone of potential victims than cases involving threats to public safety.” The duration and scope of an emergency “may depend in part on the type of weapon employed,” and in Hammon the result might have been different if Herschel had been“reported to be armed with a gun.” Also the victim’s medical condition counts because it sheds light on his ability “to have any purpose at all” in answering police questions. To be sure, an emergency may evolve into an investigation if the perpetrator “is disarmed, surrenders, is apprehended, or...flees with little prospect of posing a threat to the public.” Trial courts can determine the point at which “any transition from nontestimonial to testimonial occurs.” Finally, the existence or not of an emergency is not dispositive: Rather it is “simply one factor” that affects “primary purpose.” Another factor is the “informality” of an encounter between victim and police, and in here questioning went forward “in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion,” making it different from stationhouse questioning in Crawford.]"
• [RELIABILITY makes a comeback? Or something else?]
  • [CB]Footnote 9. Many other exceptions to the hearsay rules similarly rest on the belief that certain statements are, by their nature, made for a purpose other than use in a prosecution and therefore should not be barred by hearsay prohibitions. See, e.g., ...
• [DECLARANT AND POLICE]
  • [CB]In addition to the circumstances in which an encounter occurs, the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation...."
  • [CB] The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession. Taking into account a victim’s injuries does not transform this objective inquiry into a subjective one. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim-circumstances that prominently include the victim’s physical state...."
• [ONGOING Emergency]
  • [CB] As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public...."
  • [CB] The police did not know, and Covington did not tell them, whether the threat was limited to him. The potential scope of the dispute and therefore the emergency in this case thus stretches more broadly than those at issue in Davis and Hammon and encompasses a threat potentially to the police and the public. This is also the first of our post-Crawford Confrontation Clause cases to involve a gun. The physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat in this case; Covington was shot through the back door of Bryant’s house."
  • [CB] At no point during the questioning did either Covington or the police know the location of the shooter. In fact, Bryant was not at home by the time the police searched his house at approximately 5:30 A.M. At some point between 3 A.M. and 5:30 A.M., Bryant left his house. At bottom, there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded Covington within a few blocks and a few minutes of the location where the police found Covington. This is not to suggest that the emergency continued until Bryant was arrested in California a year after the shooting. We need not decide precisely when the emergency ended because Covington’s encounter with the police and all of the statements he made during that interaction occurred within the first few minutes of the police officers’ arrival and well before they secured the scene of the shooting—the shooter’s last known location."
• [Primary Purpose]
  • [CB] When the police arrived at Covington’s side, their first question to him was “What happened?” Covington’s response was either “Rick shot me” or “I was shot,” followed very quickly by an identification of “Rick” as the shooter. In response to further questions, Covington explained that the shooting occurred through the back door of Bryant’s house and provided a physical description of the shooter. When he made the statements, Covington was lying in a gas station parking lot bleeding from a mortal gunshot wound to his abdomen. His answers to the police officers’ questions were punctuated with questions about when emergency medical services would arrive. He was obviously in considerable pain and had difficulty breathing and talking. From this description of his condition and report of his statements, we cannot say that a person in Covington’s situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” The questions they asked—“what had happened, who had shot him, and where the shooting occurred”—were the exact type of questions necessary to allow the police to “‘assess the situation, the threat to their own safety, and possible danger to the potential victim’” and to the public, Davis, including to allow them to ascertain “whether they would be encountering a violent felon.” In other words, they solicited the information necessary to enable them“to meet an ongoing emergency.”"
• [Primary Purpose: Informality]
  • [CB] Finally, we consider the informality of the situation and the interrogation. This situation is more similar, though not identical, to the informal, harried911 call in Davis than to the structured, station-house interview in Crawford. As the officers’ trial testimony reflects, the situation was fluid and somewhat confused: the officers arrived at different times; apparently each, upon arrival, asked Covington “what happened?”; and...they did not conduct a structured inter- rogation. The informality suggests that the interrogators’ primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements."
  • [CB] For the foregoing reasons, we hold that Covington’s statements were not testimonial and that their admission at Bryant’s trial did not violate the Confrontation Clause. We leave for the Michigan courts to decide on remand whether the statements’ admission was otherwise permitted by state hearsay rules. The judgment of the Supreme Court of Michigan is vacated, and the case is remanded for further proceedings not inconsistent with this opinion."
• [JUSTICE THOMAS [true to form in requiring a ridiculous level of formality]
  • [CB]Covington interacted with the police under highly informal circumstances, while he bled from a fatal gunshot wound. The police questioning was not “a formalized dialogue,” did not result in “formalized testimonial materials” such as a deposition or affidavit, and bore no “indicia of solemnity.”"
• [JUSTICE SCALIA, a little cranky, saying the Declarant's is the only relevant intent:]
  • [CB] Crawford and Davis did not address whose perspective matters—the declarant’s, the interrogator’s, or both—when assessing “the primary purpose of [an] interrogation.” In those cases the statements were testimonial from any perspective. I think the same is true here, but because the Court picks a perspective so will I: The declarant’s intent is what counts. In-court testimony is more than a narrative of past events; it is a solemn declaration made in the course of a criminal trial. For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.1"
  • [CB] A declarant-focused inquiry is also the only inquiry that would work in every fact pattern implicating the Confrontation Clause. The Clause applies to volunteered testimony as well as statements solicited through police interrogation."
  • [CB]Looking to the declarant’s purpose (as we should), this is an absurdly easy case. Roughly 25 minutes after Anthony Covington had been shot, Detroit police responded to a 911 call reporting that a gunshot victim had appeared at a neighborhood gas station. They quickly arrived at the scene, and in less than 10 minutes five different Detroit police officers questioned Covington about the shooting. Each asked him a similar battery of questions: “what happened” and when, “who shot” the victim,” and “where” did the shooting take place. After Covington would answer, they would ask follow-up questions, such as “how tall is” the shooter, “[h]ow much does he weigh,” what is the exact address or physical description of the house where the shooting took place, and what chain of events led to the shooting. The battery relented when the paramedics arrived and began tending to Covington’s wounds. From Covington’s perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant. He knew the “threatening situation,” Davis, had ended six blocks away and 25 minutes earlier when he fled from Bryant’s back porch. The Court’s distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in the Court’s imagination, the emergency persisted for confrontation purposes at least until the police learned his “motive for and location after the shooting.” It may have persisted in this case until the police “secured the scene of the shooting” two-and-a-half hours later."
  • [CB] But today’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned. The Court announces that in future cases it will look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial.... We tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause...."
• [CB]Justice GINSBURG, dissenting.
  • [I agree with Justice Scalia that Covington’s statements were testimonial, and this case should invite us to consider whether there is indeed an exception to the Crawford doctrine for dying declarations.]"

4.15. Applying Crawford: The Cross-Examination Factor

Problem 4-R: "Your Witness

• Authors' Notes, with my comments.
  • The problem rests on Vaska v. State, 135 P.3d 1011 (Alaska 2006), which is cited and briefly quoted in the text in note 2 (page 410).
• Malavet (Updated Fall 2013)
  • Consider these questions first: Do the statements fit a hearsay rule exception? Which one? How? Are they "testimonial"?
  • I AM PESSIMISTIC ABOUT A MEANINGFUL STANDARD
    • I will lecture on this for the most part because I really think that the meaningful standard for cross is NOT found in the Sixth Amendment cases. Rather, it is to be found in the RULES.
  • The 6th Amendment Cases
  • Crawford and Davis are Expressly Discouraging
    • Adequate availability for cross-examination at trial
    • What constitutes a prior opportunity to cross-examine
  • California v. Green [pp. 405-6]
    • Deferred cross of “unremembering” witness is sufficient
  • Nelson v. O’Neil [pp. 406-7]
    • Minimal opportunity to cross suffices
  • Delaware v. Fensterer [p. 407]
    • “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”
  • US v. Owens [p. 407]
    • Actual medical amnesia not a bar to cross
• AUTHORS ON PROBLEM 4-O Now at page 408
• The real question is whether the defense has an opportunity for “full and effective cross-examination” under Green if the prosecutor calls the witness and does not broach with her either the prior statements that the prosecutor intends to use or the acts, events, or conditions described in them. We think the answer should be No, for three reasons.
  • First, prosecutor did not carry burdens. As a formal matter the burdens of production and persuasion rest on the prosecutor, and these burdens include not only bringing the witness to court but adducing her testimony. Calling T.E. and running through the preliminaries of age and school grade and knowing truth from falsehood is not an attempt to get her testimony, but rather an attempt to pass the buck so that the defense must play “the heavy” and broach the subject that nobody wants to touch, which is whether T.E. was abused. The prosecutor’s polite litany of questions does not even show in any convincing way that T.E. has forgotten what happened to her on the earlier occasion.
  • Second, there must be something to test or challenge. When a witness like T.E. gives no substantive evidence, the defense has nothing to test or challenge. When T.E. is excused, she has said nothing about the offense and, at least as a formal matter, she has given no evidence against the defendant. Of course her presence may well raise a sympathetic reaction – here is a ten-year-old child who may have been abused when she was only three – but defendant literally has nothing that he can test or challenge, and there is no occasion for the process of cross-examination to operate. Perhaps this objection could be obviated if the prosecutor first adduced testimony by Natalia and Dr. Booker and then called T.E., but of course Rule 801(d)(1)(A) would not be available if the prosecutor pursued this course. Presumably he would have to invoke the child victim hearsay exception or the exception for statements to physicians (in the case of her statements to Dr. Booker).
  • Third, defendants cannot afford to initiate challenges. In cases like this one in which the witness/declarant has said nothing that goes to the merits, defendants cannot afford to challenge what has yet to be offered. If defense counsel in the position that Ms Dawson faced in the problem were to question the child about events that she has not alluded to, and if the questions were fobbed off with the child being unable to say anything or unable to recall anything, it would appear as a failed challenge to the case. If T.E. were to remember the events, or even the statement, and if she again described events in a manner consistent with her statement or if she simply stood by her statement, again the defense would have failed in an apparent challenge. Defendants cannot afford to be seen to have done such things, and so it is perfectly rational for lawyers like Ms Dawson to decline what is in fact a non-opportunity. In short, it makes a real difference whether defendants are left to do all the heavy lifting, and a nonopportunity cannot be viewed as an opportunity.
• What the court actually did:
  • As noted above, the Problem rests on the Vaska decision from Alaska, where the court worked with a version of Rule 801(d)(1)(A) that differs from the federal provision in two ways. One is that the Alaska rule reaches all prior inconsistent statements, not just those given in proceedings under oath. The other, more important, is that the Alaska provision expands the crossexaminability provision in a way that suggests, if it does not quite say so expressly, that the proponent has the burden of actually calling the witness and asking her about the prior statement. Thus Alaska Rule 801(d)(1)(A) creates an exception for prior statements by a witness if:
    • The declarant testifies at the trial or hearing and the
      statement is (A) inconsistent with the declarant’s testimony.
      Unless the interests of justice otherwise require, the prior
      statement shall be excluded unless (i) the witness was so
      examined while testifying as to give the witness an
      opportunity to explain or to deny the statement or (ii) the
      witness has not been excused from giving further testimony
      in the action.
  • (In note 2, we quote the critical phrases of this provision.) In Vaska the court concluded that indeed the prior statement was inconsistent with T.E.’s trial testimony. Inconsistency does not require “textual conflict,” and other circumstances such as “lack of memory at trial” may suffice. Nevertheless, the prosecutor did not adequately invoke the Alaska Rule because he did not adequately explore the prior statement with T.E.
• Malavet
  • More generally, however, the problem is intended to raise the question of what is an adequate level of availability for cross-examination at trial, or what constitutes a prior opportunity to cross-examine.
  • The readings explore the existing caselaw, especially California v. Green, starting at page 391 (and again at p. 398 for the prior opportunity to cross); O´Neil at page 393 (minimal opportunity to cross suffices); Fensterer, p. 393 ("Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 19 (1985)"); and US v. Owens, pp. 393-394 (actual amnesia not a bar to cross).
  • For a discussion of what "meaningful" cross-examination (as opposed to any opportunity to do so) might mean refer to Prof. Mueller's work cited in your book:
    • [CB] 18. One of us has criticized Green. See Mueller, Cross-Examination Earlier or Later: When Is It Enough to Satisfy Crawford? 19 Regent U. L. Rev. 319 (2007) (Green "played up the extent" to which Porter was a friend to the defense and "played down the extent" to which cross was impeded; Green "ignored the practitioner's view of cross," requiring drama and appeal to emotions).

4.16. Public Records and Government Declarants:

Meléndez-Diaz v. Massachusetts

[Click here to download pdf]

• [I. The court first establishes admissibility under applicable Mass. Law, specifically,]
  • [Mass. Gen. Laws, Ch. 111, § 13: Certificates of Results of Analyses; Evidence; Judicial Notice of Signature.
  • [CB] The analyst or an assistant analyst of the department or of the University of Massachusetts medical school shall upon request furnish a signed certificate, on oath, of the result of the analysis provided for in the preceding section to any police officer or any agent of such incorporated charitable organization, and the presentation of such certificate to the court by any police officer or agent of any such organization shall be prima facie evidence that all the requirements and provisions of the preceding section have been complied with. This certificate shall be sworn to before a justice of the peace or notary public, and the jurat shall contain a statement that the subscriber is the analyst or an assistant analyst of the department. When properly executed, it shall be prima facie evidence of the composition, quality, and the net weight of the narcotic or other drug, poison, medicine, or chemical analyzed or the net weight of any mixture containing the narcotic or other drug, poison, medicine, or chemical analyzed, and the court shall take judicial notice of the signature of the analyst or assistant analyst, and of the fact that he is such. A signed certificate of drug analysis furnished by an analyst, assistant analyst or other designated employee of the Drug Enforcement Administration of the United States Department of Justice, which conforms with the requirements of this section, shall be prima facie evidence of the composition, quality, and when appropriate, the net weight of the narcotic or other drug, poison, medication or chemical analyzed or the net weight of any mixture containing the narcotic or other drug, poison, medicine or chemical analyzed and the court shall take judicial notice of the signature of the analyst, assistant analyst or other designated employee and the fact that he is such.]
• II [Affidavits are "Testimonial"]
  • [CB] The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford, after reviewing the Clause’s historical underpinnings, we held that it guarantees a defendant’s right to confront those “who ‘bear testimony’” against him. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.
  • [Court quotes Crawford’s description of testimonial statements.] [Crawford Rule]
  • There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” thus described. ***
  • [CB] In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’” the analysts at trial.[Note 1]
• [CB, Footnote 1]
  • 1 Contrary to the dissent’s suggestion, we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. While the dissent is correct that “[i]t is the obligation of the prosecution to establish the chain of custody,” this does not mean that everyone who laid hands on the evidence must be called. As stated in the dissent’s own quotation from United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988), “gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.” It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.
• Malavet
  • This is Justice Scalia's response to the dissent language that I showed. I would be weary, as I mentioned in class, of these "gaps". Moreover, some state laws and court decisions DO require the entire chain of custody.
  • More fundamentally, it does seem difficult to reconcile this proviso with the production-of-witness requirement that is the focus of the decision. Working with the language of the majority, I would try to use the Certification by the Clerk discussion to create a historical basis for a dichotomy between authentication and chain of custody on the one hand, and the actual analysis and report thereof on the other.
• A [Accusatory v. Inculpatory Witnesses?]
  • [CB] Respondent first argues that the analysts are not subject to confrontation because they are not “accusatory” witnesses, in that they do not directly accuse petitioner of wrongdoing; rather, their testimony is inculpatory only when taken together with other evidence linking petitioner to the contraband. This finds no support in the text of the Sixth Amendment or in our case law.
  • [CB] *** The text of the Amendment contemplates two classes of witnesses – those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.
• B [Conventional Ex-Parte Witnesses? Three bases]
  • [CB] Respondent and the dissent argue that the analysts should not be subject to confrontation because they are not “conventional” (or “typical” or “ordinary”) witnesses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh. It is true, as the Court recognized in Crawford, that ex parte examinations of the sort used at Raleigh’s trial have “long been thought a paradigmatic confrontation violation.” But the paradigmatic case identifies the core of the right to confrontation, not its limits. The right to confrontation was not invented in response to the use of the ex parte examinations in Raleigh’s Case, 2 How. St. Tr. 1 (1603). That use provoked such an outcry precisely because it flouted the deeply rooted common-law
    tradition “of live testimony in court subject to adversarial testing.” Crawford
• [CB: (1) Contemporaneousness]
  • *** the affidavits were completed almost a week after the tests were performed (the tests were performed on November 28, 2001, and the affidavits sworn on December 4, 2001). But regardless, the dissent misunderstands the role that “near-contemporaneity” has played in our case law. The dissent notes that that factor was given “substantial weight” in Davis, but in fact that decision disproves the dissent’s position. There the Court considered the admissibility of statements made to police officers responding to a report of a domestic disturbance. By the time officers arrived the assault had ended, but the victim’s statements – written and oral – were sufficiently close in time to the alleged assault that the trial court admitted her affidavit as a “present sense impression.” Though the witness’s statements in Davis were “near-contemporaneous” to the events she reported, we nevertheless held that they could not be admitted absent an opportunity to confront the witness.
  • [CB] A second reason the dissent contends that the analysts are not “conventional witnesses” (and thus not subject to confrontation) is that they “observe[d] neither the crime nor any human action related to it.” The dissent provides no authority for this particular limitation of the type of witnesses subject to confrontation. Nor is it conceivable that all witnesses who fit this description would be outside the scope of the Confrontation Clause. For example, is a police officer’s investigative report describing the crime scene admissible absent an opportunity to examine the officer? The dissent’s novel exception from coverage of the Confrontation Clause would exempt all expert witnesses – a hardly “unconventional” class of witnesses.
  • [CB] A third respect in which the dissent asserts that the analysts are not “conventional” witnesses and thus not subject to confrontation is that their statements were not provided in response to interrogation. As we have explained, “[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.” Davis [Note that the Court clarifies that it is the interrogation as a whole, rather than the form of any one question that is decisive.]. Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his testimony is any less a “‘witness against’ the defendant,” than one who is responding to interrogation. In any event, the analysts’ affidavits in this case were presented in response to a police request. If an affidavit submitted in response to a police officer’s request to “write down what happened” suffices to trigger the Sixth Amendment’s protection (as it apparently does, see Davis (THOMAS, J., concurring in judgment in part and dissenting in part)), then the analysts’ testimony should be subject to confrontation as well.
• C [Historical v. Scientific Testimony]
  • [CB] This argument is little more than an invitation to return to our overruled decision in Roberts, which held that evidence with “particularized guarantees of trustworthiness” was admissible notwithstanding the Confrontation Clause. What we said in Crawford in response to that argument remains true:
    
    To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes. [Emphasis added].
  • [Possible Expert Bias and other defects in this kind of testimony --which should be explored in cross-examination-- are discussed at some length in pages 5-7.]
• D [Business/Public Records]
  • [CB] Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See FRE 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U.S. 109 (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad’s operations, it was “calculated for use essentially in the court, not in the business.”7 The analysts’ certificates – like police reports generated by law enforcement officials – do not qualify as business or public records for precisely the same reason. See FRE 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”).
  • [CB] Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause. As we stated in Crawford: “Most of the hearsay exceptions covered statements that by their nature were not testimonial – for example, business records or statements in furtherance of a conspiracy.” Business 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. Whether or not they qualify as business or official records, the analysts’ statements here – prepared specifically for use at petitioner’s trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.
• E [Power to Subpoena]
  • [CB]Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power – whether pursuant to state law or the Compulsory Process Clause – is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses. [Emphasis added].
• F [Policy or Convenience? The court notes that most cases are pleaded out]
  • [CB] Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already. Many States have already adopted the constitutional rule we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report, id. (cataloging such state laws). Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial. Indeed, in Massachusetts itself, a defendant may subpoena the analyst to appear at trial, and yet there is no indication that obstructionist defendants are abusing the privilege.
• [Notice-and-Demand Statutes: Timing and sequence of objecting, NOT burden-shifting]
  • [CB] The dissent finds this evidence “far less reassuring than promised.” But its doubts rest on two flawed premises. First, the dissent believes that those state statutes “requiring the defendant to give early notice of his intent to confront the analyst,” are “burden-shifting statutes [that] may be invalidated by the Court’s reasoning.” That is not so. In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial. See, e.g, Ga. Code Ann. §35-3-154.1 (2006); Tex. Code Crim. Proc. Ann., Art. 38.41, §4 (Vernon 2005); Ohio Rev. Code Ann. §2925.51(C) (West 2006). Contrary to the dissent’s perception, these statutes shift no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. See FRCrimP 12.1(a), (e), 16(b)(1)(C); Comment: Alibi Notice Rules: The Preclusion Sanction as Procedural Default, 51 U. Chi. L.Rev. 254, 254-255, 281-285 (1984) (discussing and cataloguing State notice-of-alibi rules). There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial.
  • [CB] 14. We of course express no view as to whether the error was harmless. The Massachusetts Court of Appeals did not reach that question and we decline to address it in the first instance. In connection with that determination, however, we disagree with the dissent’s contention that “only an analyst’s testimony suffices to prove [the] fact” that “the substance is cocaine.” Today’s opinion, [11] while insisting upon retention of the confrontation requirement, in no way alters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction.
• [CB; Dissent]
  • [CB] Consider how many people play a role in a routine test for the presence of illegal drugs. One person prepares a sample of the drug, places it in a testing machine, and retrieves the machine’s printout – often, a graph showing the frequencies of radiation absorbed by the sample or the masses of the sample’s molecular fragments. A second person interprets the graph the machine prints out – perhaps by comparing that printout with published, standardized graphs of known drugs. Meanwhile, a third person – perhaps an independent contractor – has calibrated the machine and, having done so, has certified that the machine is in good working order. Finally, a fourth person-perhaps the laboratory’s director-certifies that his subordinates followed established procedures.
• Malavet
  • As I discuss above, I am not sure that Justice Scalia's response to this is entirely supportable.

A note on Bullcoming v. New Mexico

• Bullcoming v. New Mexico, 131 S.Ct. 2705 (Decided June 23, 2011) 5-4 opinion issued after Mich. v. Bryant.
  • Justices Sotomayor and Kagan joined Justice Ginsburg's majority opinion in Bullcoming applying Melendez to a laboratory report of blood alcohol level in a drunk driving prosecution.
  • Justice Sotomayor also issued a concurring opinion explaining her view that the FRE are relevant to determining the primary purpose behind the production/preservation of the hearsay statement. This is a better "fit" with Justice Scalia's opinions when he writes that the "circumstances" or "purpose" of the production or the "nature" of the statement is non-testimonial. So, the tail may not be wagging the dog, at least outside the emergency exception.
• SOTOMAYOR WROTE:
  • "Contrary to the dissent's characterization, Bryant deemed reliability, as reflected in the hearsay rules, to be "relevant," ..., not "essential," post, at 5 (opinion of KENNEDY, J.). The rules of evidence, not the Confrontation Clause, are designed primarily to police reliability; the purpose of the Confrontation Clause is to determine whether statements are testimonial and therefore re-quire confrontation."
  • Justice Sotomayor also issued a concurring opinion explaining her view that the FRE are relevant to determining the primary purpose behind the production/preservation of the hearsay statement. This is a better "fit" with Justice Scalia's opinions when he writes that the "circumstances" or "purpose" of the production or the "nature" of the statement is non-testimonial. So, the tail may not be wagging the dog, at least outside the emergency exception.

Melendez, Bullcoming and Williams

Melendez involved chemical analysis of drugs.

Bullcoming involved blood-alcohol lab reports in a drunk driving prosecution. The majority, 5-4, applied Crawford to label them "testimonial" and thus to require a result similar to Melendez-Diaz.

Williams involved the use of forensic reports of DNA analysis prepared at an outside laboratory (independent relative to law-enforcement) by a state technician who testified at trial and conducted separate testing of her own. This was a bench trial, and the court emphasized that the judge, unlike a jury, would not be confused about the proper use of the evidence. The plurality opinion by Justice Alito announced the result, but only garnered four full votes (his own and that of Chief Justice Roberts and Justices Kennedy and Breyer), Justice Breyer issued a separate opinion concurring in the ruling (but indicating he would have wanted additional briefing and reargument during the next term); Justice Thomas issued a separate opinion concurring in the judgment but concluding that the private laboratory report was too "informal" to be considered "testimonial"; Justice Kagan issued a lengthy dissent joined by Justices Scalia, Ginsburg and Sotomayor.

Although the passage of time and the use of the cases by the lower courts has given us some clarity, the court has made a bit of a mess of the area of laboratory reports with Williams. But the concerns are matters of trial tactics and the use of government expert witnesses in criminal trials.

However, as I noted above, Michigan v. Bryant shows you the primary effect and current status of the Crawford doctrine: All justices in the current court agree with the new interpretation the Sixth Amendment to bar the use of “Testimonial” hearsay absent a showing of unavailability and a prior opportunity to cross-examine, and they all buy into the Emergency Doctrine. They disagree on what CLASSIFIES as “Testimonial” or as an “Ongoing Emergency”. Normal judicial discretion differences. But they agree on the categories that represent a total abandonment of Ohio v. Roberts as a constitutional standard for applying the Confrontation Clause. Quite remarkable.

NEW Problem 4-N: "You Can't Use the Police Report"

• AUTHORS ON THE PROBLEM
  • Heart of the Matter.  This Problem takes students through the three clauses of FRE 803(8)(A), and suggests that clauses (ii) and (iii) are the applicable provisions.  Clause (i) doesn’t apply because the purpose is not to prove what the police did, but rather to prove that the defendants were or were not at home.  There are respectable arguments for admitting the police report both for the defense and for the prosecutor despite the use restrictions and despite the confrontation concerns that arise when the prosecutor offers such reports.
    • (A) Defense Proffer.  When the police report states that Chuck and Cheryl answered the knock and said they’d not heard unusual or loud noises, pretty clearly we have a record reflecting a “matter observed.”  But police are “law-enforcement” personnel, and records prepared by such people are, according to FRE 803(8)(A)(ii), not admissible “in a criminal case.”  The purpose of this use restriction, however, is to protect defendants against the use of police reports, as the Smith and Burtul cases recognize (note 1 after the Problem).  If one pays more attention to the purpose of the use restriction than to the language, the police report should be admitted for the defense.  Regardless, the police report also fits clause (iii) because it reflects “factual findings from a legally authorized investigation.”  The use restriction in this clause allows use of the exception “against the government in a criminal case.”  Importantly, then, the coverage of clauses (ii) and (iii) overlap, and a report can fit both categories comfortably.  If so, the use restriction in clause (ii) does not prevent resort to clause (iii). 
    • (B) Prosecutor’s Proffer.  When the police report states that nobody was home at the unit rented by the defendants, pretty clearly we have again both a “matter observed” under clause (ii) and “factual findings from a legally authorized investigation” under clause (iii).  The use restrictions in both clauses seem to apply (clause (ii) bars reports by “law-enforcement personnel” and in criminal cases clause (iii) allows only use “againstthe government”).  But once again it seems possible to get around these restrictions:  The cases support the view that “routine and nonadversarial” records are admissible despite the restrictions, as the decisions in Puente, Orozco and Brown indicate (note 2 after the Problem).  Routine and nonadversarial are descriptors of ordinary observations made outside the context of any particular criminal investigation (like recording the license number of every car that crosses the border between California and Mexico or reporting the serial numbers of dollar bills appearing in Detroit).  Objections based on the Confrontation Clause may be dealt with in similar fashion:  The decisions in Lopez and Copeland (note 3 after the Problem) recognize that similarly routine observations, not done in anticipation of prosecution or trial, are nontestimonial in nature and their use against defendants in criminal cases does not violate confrontation rights. 

This is the End!