Certification does not violate Confrontation Clause

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Business records can be introduced via affidavit without running afoul of the Confrontation Clause.

In so holding on July 15, a unanimous Wisconsin Supreme Court reinstated the conviction of a woman who drained the account of her father’s estate, leading to a conviction for theft by bailee.

The Supreme Court concluded that the records themselves are nontestimonial, pursuant to U.S. Supreme Court precedent. And the affidavit attesting to their accuracy is also nontestimonial, because the affidavit supplies no substantive evidence of guilt.

The decision reverses a published decision of the Wisconsin Court of Appeals, State v. Doss, 2007 WI App 208, 305 Wis.2d 414, 740 N.W.2d 410.

Carmen L. Doss was charged with theft by a trustee or bailee as a result of her handling of her father’s estate.

Despite a dispute with the Department of Revenue over whether taxes were owed to the state, Doss closed the estate’s account with M&I Bank and spent the money.

At trial, over Doss’ objection, certified records of the M&I Bank and the SunTrust Bank were admitted into evidence, to prove the transfer of funds from one bank to the other and the subsequent total withdrawal. The jury found her guilty, and she appealed.

The Court of Appeals reversed, but the Supreme Court reversed in turn, in a decision by Justice Louis B. Butler, Jr.

Notice Via Affidavit

The court first held that the State did not deprive Doss of the opportunity to inspect the documents by notifying her of its intent to introduce them via affidavit, rather than through live testimony, only three days prior to trial.

The court noted that sec. 891.24, which permits introduction of bank records via affidavit, contains no notice requirement. In addition the records themselves had been provided to Doss seven months earlier.

Thus, Doss had meaningful opportunity to inspect the records, which was not impaired by the late notice regarding the method of proof to be used at trial.

Confrontation Clause

Second, the court held that the admission of the records did not violate the Confrontation Clause, rejecting Doss’ argument that, “I can’t cross-examine a verification statement.”

Most significantly, in the landmark Confrontation Clause case, Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court specifically held that business records are nontestimonial; therefore, they do not implicate the right of confrontation.

That holding has since been adopted by the Wisconsin Supreme Court, in State v. Manuel, 2005 WI 75, par. 38, n.9, 281 Wis.2d 554, 697 N.W.2d 811.

Turning to the next step, the court concluded that the admission of the records via affidavit did not implicate the right to confrontation either, finding that such affidavits do not constitute inculpatory testimony.

The court reasoned, “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 court further noted that numerous federal cases addressing the issue unanimously agree, except for one published federal district court opinion, U.S. v. Wittig, 2005 WL 122790 (D.Kan.2005).

Nonestimonial Nature

The majority rule was first set forth by the Seventh Circuit in U.S. v. Ellis, 460 F.3d 920 (7th Cir. 2006). Ellis holds that because the certification of records does not contain information about the defendant, but merely establish foundation for the records, they are nontestimonial.

Finding the majority rule persuasive, the Wisconsin Supreme Court adopted it, and reversed the Court of Appeals’ reversal of Doss’ conviction.

Attorney Robert N. Henak, who represented Doss, stated that he was disappointed, but not surprised, given the authority from other jurisdictions.

Henak stated, “The court’s analysis is less than persuasive, and is not consistent with the U.S. Supreme Court’s analysis in Crawford.”

Because the affidavits were made for use at trial, Henak argued, they indisputably fit into the definition of testimonial evidence under Crawford.

However, Henak suggested that the opinion may be distinguishable in other cases involving “double hearsay.”

The linchpin of the court’s analysis, he opined, is that the records themselves were nontestimonial.

In other cases, however, Henak suggested that, if the court were to find the underlying records testimonial, a strong argument could be made that the second level of testimony -– the affidavit -– might not satisfy the Confrontation Clause.