Wednesday, December 24, 2008

Thoughts on Melendez-Diaz: Certificates of Authenticity

At the Melendez-Diaz argument, Justice Breyer posed one of the most interesting issues that is suggested by the case though not directly presented by it. Suppose that it is critical for the prosecution to introduce Joe Jones’s birth certificate (to use Justice Breyer’s example), or information contained in it. The birth certificate itself is not a testimonial statement. But the copy was produced for the particular prosecution, and is accompanied by a certificate of authenticity. Does the Confrontation Clause require the prosecution to present the custodian of records to authenticate the certificate?

I think the answer is no, and this case is clearly distinguishable from Melendez-Diaz, on several grounds.

(1) The certificate of authenticity is probably not testimonial. True, the prosecution agent who procured the copy of the birth certificate and the accompanying certificate of authenticity knew, by hypothesis, that they were to be used in a prosecution. But it is the anticipation of the declarant – in this case, the one who made the certificate of authenticity – that should count in determining whether a statement is testimonial, not the intended use by the one who procures the statement. (This is an argument I have made many times before, on this blog and in other writing.) Records clerks make many assertions that documents are authentic, and most of those are not anticipated for litigation use. Presumably the prosecution agent in a given case does not say to the records clerk, “Please give me a copy of Joe Jones’s birth certificate, with a certificate of authenticity, so that I can use it in a prosecution.” But even if the agent does add those gratuitous words at the end, or if they seem implicit in the request given the source, the certificate of authenticity is the same type of statement that the clerk routinely makes in non-litigation contexts, and presumably the same type of statement the clerk would make about this certificate even if she did not know about the intended use.

The report in Melendez-Diaz stands in sharp contrast to a certificate of authenticity, of course; it was clearly prepared for prosecution use. Similarly, a certificate showing that there is no record of permission given to a particular alien to re-enter the country after deportation should be considered testimonial; such certificates are presumably prepared only for purposes of assisting in prosecutions for re-entry without permission after deportation. (But I think Congress could easily eliminate that problem. I assume that very few deported aliens are given permission to re-enter; the statute could be reframed so that the crime is re-entry after deportation, and permission to re-enter is an affirmative defense. Poof!)

(2) The certificate of authenticity resembles the old official seal; indeed, it is likely to come in the form of a seal directly affixed to the underlying birth certificate, rather than in a separate document. Certain documents under seal have long (since well before adoption of the Sixth Amendment) been admissible. I believe that understanding the historical use of the seal is a fertile area for academic research. One view might be that the seal is not so much an assertion as an official act that effectively makes the copy the equivalent of the original. It may also be that the seal can only be used when, in accordance with the reasoning in point (1) above, it should not be considered testimonial in nature. In any event, the impact of the seal is limited to demonstrating that a given document is an accurate copy of an original official document. That would do the prosecution no good at all in a case like Melendez-Diaz.

(3) Finally, so far as the Confrontation Clause or any other part of the Constitution is concerned, there is no need for the prosecution to present any authenticating evidence at all. If a piece of evidence appears on its face – without the aid of testimonial statements – to be what the proponent claims it to be, then without any additional evidence about it the jury could infer that this is what it is. If a piece of paper says it is Joe Jones’s birth certificate, then the jury does not, as a logical or constitutional matter, need more evidence to prove that it is indeed Joe Jones’s birth certificate. (Note how a certificate of a lab report is different in this respect – the only way we know what that is from the face of it is by virtue of the fact that it says it is a particular lab report, and that statement was made for prosecutorial purposes.)

There is nothing unusual about this idea. Fed. R. Evid. 902 contains a long list of categories of self-authenticating evidence – that is, evidentiary items that do not need “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility.” Some of these, including government records, require certifications of authenticity; in other words, though the proponent does not need to present admissible evidence supporting the authenticity, the document does have th be accompanied by some sort of certification that it is authentic. But others are truly self-authenticating – if the thing appears to be what its proponent claims, then nothing more is needed to satisfy an authentication requirement. These include the following:
(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
There is no reason that a jurisdiction could not add to this list papers purporting – without reliance on testimonial statements – to be within certain categories of official records.

If a jurisdiction does adopt this approach, and the prosecution does not present supporting evidence to demonstrate that the document is the birth certificate it purports to be, it is, of course, open to the defense to challenge the authenticity of the document. And if the state does choose to present supporting evidence, that would have to be in admissible form.

In sum, holding for Melendez-Diaz would not commit the Supreme Court to holding that a certificate of authenticity can never be admitted unless the author of the certificate testifies subject to confrontation. The Court need not reach that issue at all in Melendez-Diaz.


B.Ross said...

Your first point concerns me. Do you propose that confrontation rights ought to be entirely dependent on the declarant's very subjective intent absent a degree of reasonableness? You don't have a non-testimonial purpose (ala Davis) in your example; the clerk should be aware that his certification could be used in a prosecution. There is no other more-pressing purpose. Do you propose that a statement only becomes testimonial once the declarant is certain (or mostly certain even) that it will be used in prosecution? Or do you believe routine records deserve the same "firmly rooted exception" status that the utterances in Davis got?

Defer to your expertise on this, and I agree with your point overall. I just think there's a missing link in there.

Richard D. Friedman said...

Good question. I think that the question of whether the statement is testimonial should depend on whether a reasonable person in the position of the declarant would anticipate likely prosecutorial use. So no, I don't believe that the question is a subjective one -- but determining "the position of the declarant" requires the court to posit that the reasonable person have the information about the particular situation that the declarant did. Thus, if the prosecution agent says, "I want this for use in a prosecution," that alters the position of the declarant.

So, assuming the prosecution agent doesn't say anything like that, what would the reasonable anticipation of someone in the position of the clerk be? It seems to me that requests for certified copies of birth certificates are so frequent, and use of them in prosecution (or other litigation, for that matter) so infrequent, that the reasonable clerk would not anticipate that a given certificate would be so used.

This discussion raises two more interesting issues: How probable, in the view of the reasonable declarant, does prosecutorial use have to be for the statement to be deemed testimonial? I think the standard is far less than "mostly certain" -- I've never tried to numerify it in terms of a probability or percentage, but I think something like "reasonably probable" is about right. The bottom line question, I believe, is whether the reasonable declarant, in making the statement, would likely recognize that she is creating evidence for prosecutorial use. In the case of a certification of a birth certificate, I think prosecutorial use is quite improbable.

Second, just what anticipated uses count towards making the statement testimonial? I have used the term "prosecutorial" use, but that is a shorthand. Anticipated use in an investigation should count. And I believe so too should anticipated use in other litigation related to an incident of potentially criminal significance. (Right near the beginning of the Crawford argument, Justice Kennedy posed a hypothetical raising just this question -- it involved a statement to a private insurance adjuster after a bad accident. I commented on this in my article, Grappling with the Meaning of "Testimonial", in 75 Brooklyn L. Rev.) Even using this expanded scope, I don't think the certification of authenticity of the birth certificate is likely to be testimonial, assuming at least that the clerk is not notified of the intended use. There is, I suppose, an argument that whatever the intended use of the birth certificate -- to sow eligibility for school, a passport, sports teams, etc., etc. -- the clerk is essentially providing formalized evidence. That's not entirely implausible, but I think it would be carrying matters well too far to say on this basis that the clerk is therefore acting as a witness within the meaning of an accused's right to be confronted with the witnesses against him.

B.Ross said...

I would contend that the act of certification is always testimonial. The clerk is being asked to validate authenticity to a standard that would satisfy a court. The clerk's assurance isn't being offered for the peace-of-mind it'll provide others who might request it; these other parties are making the request, most likely, with an eye towards potential litigation and a desire to have assurances that will fly in court.

A clerk's sole purpose in certification is thus, to me, testimonial. The individual clerk's awareness of the procedural issues doesn't change that; there shouldn't be a requirement that the declarant anticipated CRIMINAL prosecution, only that he intended the statements to be a testimonial statement in a court. This should always be a clerk's expectation.

In Davis, the 911 call was motivated by a far more compelling purpose than testimony (emergency assistance). The statements were thus not testimonial. There is no more compelling purpose than testimony in this hypothetical clerk scenario.

Richard D. Friedman said...

Not an implausible point of view, but I believe too few certifications of authenticity of birth certificates wind up in court of any type for them to be considered generally testimonial. In any event, my principal aim in writing this post was to show that holding for the petitioner in Melendez-Diaz would not compel the Court to conclude that the clerk who certifies authenticity of a birth certificate would have to testify in court, and I believe that, however strong reader Ross's arguments might be, the argument that the certificates in Melendez-Diaz were testimonial is much stronger.

Reader Ross puts the question in Davis in terms of the speaker's purpose. But I believe anticipation rather than purpose should be the determining factor. I also think that the 911 call in Davis was made in anticipation (and in part the purpose) of providing evidence for some type of legal response to the situation, such as enforcing the restraining order. But that battle is over.

Anonymous said...

Dear Confrontation Blog,
I have a Habeas Corpus filed in Orange County California, Im using a claim of Crawford to quash a proof of service return filed by a ex girl friend and made by a private party friend of hers who is not a public official or a registered process server.
My claim is my VI amend right to confront the process server was denied in a preliminary hearing. We objected at the prelim and stated I was never served with a restraining order OSC. Since the protective order was granted ex parte based upon jurisdiction of the return of service, do you belive that the return of service is Testimonial and / or should the trial court had demanded a apperance of the process server to cross by the defence??

Carl Folsom said...

It just seems to me that a clerk's authentication of a birth certificate will almost always be testimonial if requested for a criminal prosecution. Presumably, the clerk will know the party requesting the certified copy of the record. When it is a prosecutor's office requesting the certified copy of the birth certificate, how can a clerk not reasonably believe that the certificate of authenticity will be used in a criminal prosecution?

Anonymous said...

I certainly intend no offense to anyone. but you guys are talking seriously about the need of a criminal defendant to cross examine his birth certificate.

do you think you might want to take a step back?

Mark Dwyer

Carl Folsom said...

Mr. Dwyer,

In Kansas (where I practice), the defendant's age can trigger a life sentence for certain sex offenses (Jessica's Law). And, maybe it's not the defendant's age that is important; maybe it's the victim's age (an element of the offense for many sex crimes). Either way, the birth certicate example was based on the idea that it was a critical piece of evidence in a criminal prosecution. So, sorry- no "stepping back" when it's a critical piece of evidence that the State wants to use to secure a conviction.

Also, the issue goes beyond birth certificates. The issue could apply to any document that a records clerk certifies as being accurate. In a driving while suspended prosecution, a records clerk might certify that the driving record is accurate. In a case where a prior conviction is an element of the crime, a clerk might certify that the journal entry of the prior is accurate. In a case where a business record is at issue, a records clerk might certify that that the record was kept in the normal course of business (establishing admissibility). In any of these examples, a record clerk's written statement that a record is accurate takes the place of live testimony. Why shouldn't the defendant have the right to cross-examine the clerk on how the records are kept?

Richard D. Friedman said...

In response to Mark’s comment – I don’t think anybody is talking about a constitutional right to exclude the birth certificate unless the author of the certificate testifies. The question is whether the author of the certificate of authenticity must testify.

I suppose that if a prosecutor’s agent announces to the clerk who she is, that makes it likely that the clerk will understand the probable use of the evidence. I think there still is a plausible argument that the statement is not testimonial because it is precisely the same statement that the clerk would make if the birth certificate were sought for non-litigation purposes.

S said...

That's a terribly unsatisfying response, Professor. A crime victim may well go home from the police station and tell her sister exactly what she just told the police. Surely that could not magically transform her statement to the police into a non-testimonial statement.

I'm also not comfortable with the assumption that the exact same content would have been generated for any request. That's really a question for the defense to ask that records clerk, isn't it?

Richard D. Friedman said...

Sorry to be slow in responding – I was on vacation with very intermittent internet access.

I’ve suggested that ordinarily a certification of authenticity of a birth certificate is not testimonial because it is usually sought for any of a myriad of reasons having nothing to do with litigation. I believe that is correct. But what if the clerk is told or has reason to understand that the certificate of authenticity (together with the underlying birth certificate) is to be used for prosecutorial purposes? I’ve suggested that even then it might not be testimonial because the certification of authenticity is the same statement that the clerk would make in other circumstances in which she had no reason to believe that such use was likely. This commentator calls me to task, and says that this would be similar to saying that a statement made by a complainant to the police is not testimonial because she might have made the same statement to her sister around the same time (assuming that such a statement would not be deemed testimonial).

Perhaps the commentator is right, and perhaps the path I have suggested is too dangerous. But I do believe that there is a significant difference between the two situations. In the certification context, the point is that the clerk routinely makes this statement in a non-testimonial setting and presumably would routinely make the same statement about the same birth certificate if asked to do so for clearly non-litigation contexts. That is not remotely true about the crime complainant posited by the commentator. I must emphasize that I am not suggesting that the certification might be non-testimonial because it is reliable. Nor I am suggesting that it might be non-testimonial because it is routine – the report in Melendez-Diaz was routine. What I am suggesting is that it plausibly might be considered non-testimonial because it is part of a non-testimonial routine.

Again, I am not wedded to this idea. Perhaps in the end it would be a bad route to go. All I am trying to do in this posting and subsequent comments is to contend that holding in favor of Melendez-Diaz would not compel the Court to reach the conclusion that in any case in which a prosecutor needs to introduce a birth certificate the clerk would have to come to testify. It would be very unfortunate, and a big gouge out of the Confrontation Clause, if Melendez-Diaz lost; the Court should not be dissuaded from holding in his favor by fear that it would be requiring clerks to come to testify to authenticity of birth certificates. That issue could be dealt with later – and I’ve suggested, one possibility, even if the certificate of authenticity is deemed to be testimonial, would be for jurisdictions to change their evidentiary rules so that such certificates are not needed for non-testimonial government documents that appear on their face to be what the proponent claims them to be.

Anonymous said...

(1) I agree with you that it's not necessary to answer Justice Breyer's hypothetical to resolve the case. But the SC isn't ignorant of the consequences of its decision and it has a good idea of the push-me pull-me nature of the law. So I think the question deserves a better answer than what you have given it.

(2) In this regard, I am not convinced that any of the standards proposed are very persuasive. Part of the problem is the way you are trying to cabin there issues. To my mind, what distinguishes Diaz is the fact that it is an offical report. The purpose of that report is neither here no there. Nor is what the offical actor anticipating the use of the document to be relevant. It is enough that it is an offical government document.

Obviously, my answer to Justice Breyer's hypo is "yes." I think any other answer creates many more problems than it solves.

Richard D. Friedman said...

Yes, of course the Court is aware of the consequences of its decision. My point is that it can decide the case before it in Melendez-Diaz's favor without tying its hands as to what it would do in response to Justice Breyer's situation. Now, of course, however it would resolve that case would leave some people unpersuaded that it made teh right decision.

I don't think that there is a plausible possibility that the Court would (or should) adopt a principle that any official document is testimonial; that would cover all sorts of stuff not prepared with any anticipation of litigation. andi f anticipation of litigation isn't the governing standard, I wonder what is.

laigler said...

What does it mean when you use this after your name? "I am the Ralph W. Aigler Professor of Law at the University of Michigan Law School."