Confrontation Clause Can’t Stop (Certain) Affidavits of Records Custodians

Background. Ubaldo Cruz was on trial for allegedly committing multiple sexual assaults on his neighbor’s daughter. At trial, Cruz objected to the admission of cell phone records over a three-month period. The circuit court denied the request, but ruled that a failure to call the custodian of records to testify at trial was a violation of Cruz’s constitutional right to confront witnesses. The next day, the prosecution sought to introduce the records with a certified copy of a declaration from the custodian of records on the grounds that they met the business records exception to the hearsay rule. The prosecutor argued that business records “are specifically excluded under Crawford.” The circuit court admitted the records, Cruz was found guilty. Cruz appealed.

The Confrontation Clause and Documents. The Confrontation Clause prohibits the use of “testimonial” statements at trial when the declarant is not present and there was no meaningful opportunity to testify. Crawford v. Washington, 541 U.S. 36, 51-52 (2004). A statement is “testimonial” when it was made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]” Id. The rule in Crawford applies to documents too.

The business-record exception to the hearsay rule does not trump the Confrontation Clause. Even when there is a regularly-produced document that would be made in the normal course of business, the Confrontation Clause would prohibit its use at trial if the business was producing evidence at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321-22 (2009). For example, certificates of analysis by scientists who determine whether a substance seized as evidence by the police is in fact a narcotic would be testimonial. Id.

But that doesn’t mean all records are prohibited. “Business and public records are generally admissible . . . 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.” Id. at 324.

The Confrontation Clause will not Prohibit Certain Affidavits from a Custodian of Records. The ICA held that the affidavit from the custodian of records at phone company was not barred by the Confrontation Clause. Here’s the affidavit:

            I, Dominick Kaserkie, hereby declare and affirm based on information and belief that the following is true and accurate to the best of my knowledge:

1.       I am employed at T-Mobile USA, Inc., in the Law Enforcement Relations Group.

2.      My duties include acting as a “custodian of records” on behalf of T-Mobile USA, Inc.

3.      I am authorized to represent T-Mobile USA, Inc., for purposes of this proceeding.

4.      T-Mobile USA, Inc. maintains records relating to T-Mobile USA, Inc. subscribers.

5.      These records include identifying information such as the name of the subscriber assigned to a specific telephone number and call logs for a subscriber’s telephone number documenting both incoming and outgoing calls made by a T-Mobile USA, Inc. subscriber.

6.      These records are made and kept in the regular course of business at T-Mobile USA, Inc.

7.      These records are generated at or near the time that a T-Mobile subscriber uses his cellular phone to make or receive telephone calls.

8.      These records are generated and maintained by employees of T-Mobile USA, Inc.

9.      As part of my job, I have access to, and custody of, these records.

10.   Pursuant to a subpoena, I retrieved true and accurate copies of T-Mobile subscriber information associated with MSISDN [Cruz’s cell number].

11.    T-Mobile USA, Inc. subsequently turned over a copy of these records to the Honolulu Prosecutor’s Office on January 14, 2010.

12.   The records provided to the Honolulu Prosecutor’s Office consist of a true and accurate copy of the records . . . .

13.   These records are kept in the course of regularly conducted activity at T-Mobile USA, Inc.; they are made at or near the time of the acts or events described therein; and they are made as part of the regular practice of T-Mobile USA, Inc.

The Difference Between T-Mobile and a Crime Lab. According to the ICA, this affidavit is not testimonial and the Confrontation Clause does not prohibit its admission. But if the test for a testimonial statement is looking to the circumstances and determining if it is reasonable to think that the statement would be used at trial, wouldn’t this be it? After all, this is a custom-made declaration from the custodian of records at the “Law Enforcement Relations Group” who turned over documents to the Honolulu Prosecutor’s Office. Perhaps the actual records—the call logs or the raw materials usually attached to these kinds of declarations—are not testimonial. But this statement suggests it was not part of the regular course of business.