Such statements may come into play in a variety of circumstances. First, I wil lconsider statements in government reports and certificates. Then I will address statements made by confidential informants on tape-recorded statements.
Reports and Certificates: In Napier v. State, 2005 WL 22858 (Ind. App. Jan. 6, 2005), the principal issue was the admissibility of a certificate asserting that a machine used to test the accused's blood alcohol content was in good working order. In United States v. Rueda-Rivera, 2005 WL 39763 (5th Cir. Jan. 10, 2005), the defendant was convicted of re-entering the United States without consent after having been deported and removed. The prosecution proved the lack of consent by introducing a Certificate of Nonexistence of Record (CNR), signed by an official in the records office of the Immigration and Naturalization Service that a search of INS files revealed no evidence that Rueda-Rivera had been granted permission to re-enter. The CNR was admitted on the testimony of a Border Patrol Officer who admitted that he did not know what type of search of records had been made before the CNR was completed. In each case, the court held that the document in question was not testimonial and that its admission did not violate Crawford. Neither opinion offered an extended argument. The Napier court was at least candid in raising what it regarded as “the unreasonable alternative” to its holding, “to have a toxicologist in every court on a daily basis offering testimony about his inspection of a breathalyzer machine and the certification of the officer as a proper administrator of the breath test.” The Rueda-Rivera court did little more than cite a previous, unpublished opinion, which was equally conclusory, and liken the document to a business record.
Both these decisions are wrong, in my view. In each case, the document should be considered testimonial. In each case, the practical consequences could be mitigated substantially.
The situation in Rueda-Rivera is especially clear. Plainly, the CNR was completed solely for purposes of this prosecution, to be used as evidence at the defendant's trial. To say that this is a routinely kept record is only to say that prosecutors and courts have developed a routine of violating the confrontation right in cases of this sort. (Of course, the status of a dcoument under a hearsay exception does not affect its standing under Crawford. Most routinely kept records are not testimonial, but that does not mean that a statement is not testimonial because it is a routinely kept record.) I suppose that if in assault cases police officers took to filing Certificates of Guilt the prosecution would argue that the elements of the crime could be proven by introducing such a certificate, without need for proof.
That being said, we nevertheless must appreciate the difficulty from the prosecution side. All the prosecution wants to prove on this aspect of the case is the absence of a particular type of record; the defendant presumably makes no attempt to prove that the record exists, or that in fact consent to re-enter was granted, but presumably he is not willing to stipulate to the absence of consent. In such a case, does this mean that the case can only be proven by sending a clerk from Washington to the place of trial, by giving the defendant the opportunity to go to Washington for a deposition, or by arranging the immigration files so that they can be searched from near the place of trial? Actually, it seems to me the more sensible solution would be to place on the defendant the burden of producing evidence that he did have consent to re-enter. Most deported aliens are not given consent to re-enter, and it is far easier to prove an existential statement (in this case, that there was consent) if true than to prove the corresponding universal statement (in this case, that there never was such consent) if that statement is true. Of course, to impose the burden on the defendant might require a change of law -- whether it would require a statute or could be accomplished by decisional law I do not know -- but there is no constitutional obstacle to doing that. As long as the law places the burden of proving lack of consent on the prosecution, the prosecution ought to prove the point in a constitutional manner.
Note, by the way, that Rueda-Rivera seems not to have raised a contention that the documents proving the original deportation were testimonial, and any such contention would have been far weaker. Even though such documents are prepared in the knowledge that some deportees will attempt to re-enter and will be prosecuted, with documents proving deportation then introduced against them, such documents are not prepared in the context of the crime later charged, or of a course of conduct culminating with that crime. I think these documents probably should not be considered testimonial. (If they were, the consequences would not be devastating; the defendant could be asked to sign an acknowledgment of deportation and if he refused then offered cross-examination at the time the documents were completed.)
The certificates in Napier present what is in some sense an intermediate case: They were completed before the particular crime in question was committed, but they were completed in the clear anticipation that they would be used in the prosecution of some commission of the crime of driving with an elevated blood alcohol level. Indeed, one of the certificates specified that "[t]he original Letter of Certification, issued by the State Department of Toxicology, must be kept on file in the office of the Clerk of the Circuit Court and may be duplicated as needed for use in Court." The Napier court argued weakly that "the information contained in the certificates does not pertain to the issue of guilt." But of course it did. The only proof that Napier had an elevated blood alcohol level was the results of the test performed with the machine in question; unless the jury believed that machine to be accurate, it could not have voted to convict him. Beyond that, the only argument offered by the court was the one noted above, that it would be "obviously impractical" to require a toxicologist in court every case of this type testifying about the inspection of the machine and his own certificaiton.
That is an inadequate argument. It is always cheaper and easier to do without confrontation, and if the courts have gotten used in a given context to doing without it then the requirement that the right be respected will always seem expensive. If need be, there could be courtroom textimony about the machine, just as there is courtoom testimony about fingerprint or DNA results. In most cases, we could expect the testimony to be rather perfunctory.
Testimony at trial would not ordinarily be necessary, though. The prosecution could offer the defendant an early opportunity to take the deposition of the testing officer. In many cases, I suspect, the defendant would not bother. If the trial were held at a substantially later time, I think it would be appropriate to be rather generous to the prosecution in determining that the officer, having already been cross-examined, was not available to be a trial witness; in many cases, after all, the office would no longer have any recollection of the particular testing. Moreover, I am not sure that in this context the prosecution really should have to present affirmative evidence that the machine is working; in the absence of evidence to the contrary, I think the jury could conclude that the machine was in working order, and I believe procedural rules could properly provide that if the defendant wants to argue or present evidence to the contrary he must raise the contention early, well before trial.
At least two courts in New York have done better with this type of issue than did Napier and Rueda-Rivera. People v. Hernandez, a decision at the trial level, involves a latent fingerprint report prepared by a police officer who was retired and living in Ireland by the time of trial. The court held that the report was testimonial and so could not be introduced absent cross-examination. It relied on a decision of the Third Department, People v. Rogers, 8 AD3d 888 (3rd Dept. 2004), made to similar effect with respect to a report of blood alcohol content (of the alleged vicitm of rape, the question being whether she was capapble of consent). These decisions seem clearly correct to me. Rogers says: "Because the test was initiated by the prosecution and generated by the desire to discover evidence against defendant, the results were testimonial." I do not believe that initiation by the prosecution is essetnial, though of course it is indicative of the evidentiary anticipation. In Hernandez, the state tried to distinguish Rogers on the ground that the report was not initiated by the prosecution, but hte court properly rejected the attempt, as well as the assertion that because the police did not know who they were going after when they began the fingerprint test the statement could not be testimonial: "The fingerprints in question were not taken simply for administrative use. They were taken with the ultimate goal of apprehending and successfully prosecuting a defendant." At the same time, Hernandez presents the question of what to do when the government agent who makes a report is not likely to be available at trial. In most cases, the simple answer is to provide an opportunity for pre-trial confrontation. That is relatively simple when the defendant is in custody. If the defendant is identified but not in custody, I think it would suffice to give the defendant proper notice of the intention to use the report and of his opportunity to cross-examine; of course, there may be litigation over what constitutes proper notice. If the defendant is not yet identified, then there is a larger problem; I doubt that it would suffice to give notice by publicaiton to the person whose fingerprint matches a given description.
Tape-Recorded Statements by Confidential Informants: At least two cases of which I am aware (United States v. Hendricks, and United States v. Joval, recently argued in the Nionth Circuit) pose this situation: A confidential informant (CI) engages in a tape-recorded conversation with participants in an alleged conspiracy. By the time of trial, the CI is dead. The accused has not had an opportunity to cross-examine the CI, and there is no showing that the CI is dead as a result of wrongful conduct by the accused. The prosecution offers the tape.
Hendricks, I think, got the matter basically right. First, it acknowledged "appeal" to the ruling of the district court that the statements by the CI were testimonial: "Insofar as they contain the statements of CI Rivera, the conversations reasonably could be categorized as involving statements that Rivera expected to be used prosecutorially; obtaining evidence for the prosecution is, after all, the raison d'être of being a confidential informant." But then it contrasted the case with United States v. Bourjaily, 483 U.S. 171 (1987), which allowed a conversation between a co-defendant and a CI; Crawfordpreserves Bourjaily, regarding the statements there as non-testimonial. The Hendricks court acknowledged a key difference: "[A]lthough the Bourjaily Court addressed the Confrontation Clause implications of the admission of conversations with a government informant, it focused on the non-informant half of the conversation." Hendricks correctly concluded that Crawfordposes no barrier to the admission of statements made to the CI by the accused or by his conspirators. These statements, after all, are not made in contemplation of creating evidence. As for the statements by the CI, the Government disclaimed an intent ot introduce them for their truth. Rather, they were offered to "put the statements of the other parties to the conversations into perspective and make them intelligible to the jury and recognizable as admissions." (Internal quotaiton marks omitted.) For that purpose, the court held the statements admissible. The court did not reveal enough of the facts to allow a judgment of whether the standard was properly applied, but its articulation of a governing standard seems appropriate:
We thus hold that if a Defendant or his or her coconspirator makes statements as part of a reciprocal and integrated conversation with a government informant who later becomes unavailable for trial, the Confrontation Clause does not bar the introduction of the informant's portions of the conversation as are reasonably required to place the defendant or coconspirator's nontestimonial statements into context.
In short, many statements by government agents seem clearly testimonial, and some of them pose interesting procedural challenges. It may be that in some cases careful adherence to the confrontation right in this context will create substantial expense and inconvenience. But this is not inevitably so. And courts should not take the disingenuous path of least resistance by declaring that statements by governement officials are not testimonial even though such statements were clearly issued for prosecutorial use.