Buried treasure
I wasn't terribly enthused about the 8th District's decision in State v. Hood, deeming it worthy of only half a paragraph in my weekly summary of the 8th's decisions when it was handed down. The key issue in the case was testimony by a detective linking Hood to a murder, based on the detective's determination from Hood's cell phone records as to his location at the time of the crime. The appellate panel found it problematic that no one had bothered to bring in anyone from the cellphone company to authenticate the records, but found the error harmless. Ho-hum. I was mystified when the Supreme Court accepted it. The issue raised by Hood there was that admission of unauthenticated cell phone records violated the Confrontation Clause, which really seemed more an issue of evidence than of constitutional law. The State apparently took my jaundiced view of the case's significance, not even deigning to file a response to Hood's memorandum in support of jurisdiction. My ennui deepened when I watched the oral argument a year ago and heard Hood's attorney say that any confrontation clause problem would have been satisfied by the cellphone company merely providing a certificate saying that the records were authentic, an approach specifically rejected by the Supreme Court in Melendez-Diaz v. Massachusetts; if a live witness weren't required, there's really no confrontation issue, so what's the point? And there was the additional problem, noted in my brief summary of the oral argument: "To provide any relief to Hood, the Supreme Court would both have to rule in his favor and conclude that the appellate court was wrong in its application of the harmless error standard." That's a tall order, and besides, the court rarely gets into the game of determining whether the lower court came to the right conclusion about whether an error was harmless.
Justice Terrence O'Donnell apparently agrees with me. When the Supreme Court released its decision last week, he was the lone dissenter, on the basis that the appeal should have been dismissed as improvidently allowed. But it turns out there's a nugget in the decision which could prove immensely helpful to the defense.
Hood was convicted of conducting a home invasion robbery back in January of 2009, and of killing one of his co-conspirators in a subsequent dispute over the distribution of the loot. Another of the robbers, Kareem Hill, rolled over on Hood and gave the most damning evidence, but his testimony was buttressed by that of Detective Veverka, who told the jury he'd subpoenaed the records from various cell phone records, and his examination of those records indicated Hood, Hill, and the other robbers were all in the vicinity of the targeted house when the crime occurred. Hood's counsel objected to the admission of the records, claiming that someone from the cellphone company should have been present to testify as to their authenticity.
Hood made the same argument in the 8th District, with the addition that the failure to properly authenticate the records violated his rights under the Confrontation Clause. The 8th's treatment of this was less than stellar: it began by holding that the appropriate standard of review was abuse of discretion, and wound up by applying the Chapman standard for constitutional error: harmless beyond a reasonable doubt. It found the error harmless, noting that defense counsel "rigorously cross-examined Detective Veverka," but that his had little effect in light of "Hill's devastating testimony." And so up the ladder the case went.
Pfeifer's opinion for the majority first tackles the confrontation issue, noting that the Supreme Court in Crawford v. Washington had barred the admission of "testimonial" statements, and moves on to the next question, whether "business records" qualify as testimonial statements. The US Supreme Court's tackled that issue on numerous occasions, but the key work there is still Melendez-Diaz (discussed here). In that case, the prosecution contended that a certificate from a lab analyst as to the type and quantity of the drugs found on the defendant was sufficient proof of that fact, arguing that such a certificate was a "business record" which didn't implicate the Confrontation Clause. The Court rejected that argument, placing primary emphasis on the fact that the record was prepared specifically for the litigation.
That should tell you what you need to know about the resolution of Hood. As the court notes, just because a document is presented as evidence doesn't mean it was prepared for the litigation. The telephone companies keep records of calls for a multitude of purposes. "Even when cell-phone companies, in response to a subpoena, prepare types of records that are not normally prepared for their customers, those records still contain information cell-phone companies keep in the ordinary course of their business." That means they weren't prepared for litigation, and there's no Crawford problem.
That out of the way, the court proceeds to the same point the 8th District did, and the defense essentially conceded: the real problem wasn't confrontation, but that the foundational requirements for introduction of a business record weren't met. It doesn't take much: just put some rummy on the stand who'll testify that the records are in his care, were made in the ordinary course and scope of the business, contemporaneously with the events they depict. That didn't happen; Veverka wasn't the custodian of the records, and couldn't testify as to how they were compiled, but he was the only one who testified on that. And that wasn't enough.
But here's where it gets interesting. The opinion notes that "a hearsay violation itself violates the Confrontation Clause, and thus requires a heightened harmless-error analysis," namely, the Chapman harmless-beyond-a-reasonable-doubt standard, and cites several cases to that effect. Not surprisingly, it comes to the same conclusion as the 8th: the error is indeed harmless.
Why is the application of the Chapman standard interesting? Because it's wrong. Hearsay and the Confrontation Clause are intertwined: both exclude out-of-court declarations on the theory that statements untested by cross-examination are unreliable. The Court's made various attempts to harmonize the two, and supposedly resolved it in 1980 in Ohio v. Roberts, holding that the right of confrontation was satisifed if an out-of-court statement fell within a "well-recognized" hearsay exception or met "particularized guarantees of reliability." Whatever the problems with that approach, and there were several, it was rejected by Crawford.
Scalia's rejection of Roberts was not complete, however. He limited Crawford's protection to "testimonial statements" -- affidavits, police interrogations, prior testimony before a grand jury, and the like -- and held that confrontation was required there, regardless of whether how reliable those statements were or whether they fit within a hearsay exception. What about non-testimonial statements? This from the penultimate paragraph in Crawford:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. (My emphasis.)
In other words, if it's not testimonial, it's not a 6th Amendment issue, and is resolved by the hearsay rules.
Hood doesn't pick up on this; all of the cases cited by the court on the standard for harmless error are post-Roberts and pre-Crawford. Hood adopts Roberts' formulation -- there's no constitutional problem with out-of-court statements as long as they fit within a "well-recognized" hearsay exception -- but flips it: if admission of the evidence violates the hearsay rule, it's a constitutional problem. In other words, if you've got a hearsay argument -- that something wasn't authenticated as a business record, that a statement wasn't an excited utterance -- you're now in Chapman land.
But it gets better. There are numerous cases, and you can start with this one or this one or this one, which hold that the question of whether a defendant's confrontation rights have been violated is reviewed de novo.
Normally, a hearsay ruling would be reviewed for abuse of discretion, and would be held harmless unless it affected the defendant's "substantial rights." Hood gives a defendant an argument that any hearsay violation is a Confrontation Clause problem, reviewed under the much more demanding de novo standard, and if error is found, it has to be shown to be harmless beyond a reasonable doubt. Not bad for a case that I thought the court had no business taking in the first place.
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