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Confrontation – Certified Bank (“Business”) Records – Nontestimonial

State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak

Issue: Whether the authenticating affidavit of a bank record was “testimonial” within the Confrontation Clause.

Holding:

¶45      The parties do not dispute that the circuit court correctly described Crawford and Manuel as identifying business records as nontestimonial, and correctly concluded that the specific bank records in this case are nontestimonial business records and not a threat to Doss’s Confrontation Clause rights. The issue in this case is whether the affidavits authenticating the bank records are similarly benign nontestimonial evidence.¶46      We conclude that affidavits verifying nontestimonial bank records in compliance with Wis. Stat. § 891.24 are also nontestimonial. Such affidavits are generally of a different nature than inculpatory testimony against an accused criminal defendant.

¶47      The critical defining element of the affidavits accompanying the bank records in this case is that they fulfill a statutory procedure for verifying nontestimonial bank records and do not supply substantive evidence of guilt. The affidavits in this case are not the type of affidavits described in Crawford, i.e., the functional equivalent of ex parte in-court testimony that declarants “would reasonably expect to be used prosecutorially.” Crawford, 541 U.S. at 51. In certifying the authenticity of bank records in the manner set forth by Wis. Stat. § 891.24, the affidavits themselves neither provide inculpatory evidence incriminating Doss nor threaten her Confrontation Clause rights, in contrast with the type of evidence described in Crawford. As long as Wis. Stat. § 891.24 is complied with, the affidavits are not testimonial and their admission did not violate Doss’s Confrontation Clause rights. [7]

This is, to put a label on it, an “authenticating business records” case (¶50). Without getting into any possible distinction drawn between private and public (say, crime lab report) records, take note of evolving caselaw in the area of record-certification, such as Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) (violation of confrontation “to introduce a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification”).

 

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