Further proof that the death of Crawford has been greatly exaggerated comes in the form of a recent decision of the United States Court of Appeals for the District of Columbia Circuit, United States v. Smith (D.C. Cir. Apr. 15, 2011), passed on to me by blog reader Stu Dedopoulos. Smith contended that the trial court had committed error by allowing the prosecution to prove a prior felony conviction – a predicate for a charge of felon-in possession-of-a-firearm – by introducing letters from a state court clerk, rather than a certified record or in-court testimony. A unanimous (and notably conservative) panel – Judges Sentelle writing, joined by Judges Ginsburg and Kavanaugh – agreed.

The decision breaks no new ground; the clerk’s letter was plainly testimonial under Melendez-Diaz. But it is notable nonetheless for adhering to a distinction drawn by that case. As the Smith decision points out, under Melendez-Diaz

[a] clerk is “permitted to certify to the correctness of a copy of a record kept in his office, but [has] no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.”

In other words, the prosecution should have produced a certified copy of the conviction record rather than a clerk’s letter – even though the letter bore the seal of the clerk’s court – describing what was in the records. That should be easy enough for prosecutors to do; I do not anticipate that this decision, if followed nationally, will create any significant administrative burden.

Though it’s not a relevant inquiry under the Confrontation Clause, one might still wonder whether this requirement achieves any significant gain in accuracy. Sure – to prove whether there was a conviction, or what it was for or what the punishment was, or when it was entered, the better evidence is the certified copy of the record itself rather than a second-hand account of it.

The tougher question is whether this distinction reflects any robust principle of confrontation law. The certificate of the conviction record itself appears to be a testimonial statement. It’s an assertion that the record is a genuine copy. And presumably it was made in anticipation of, and for purposes of, litigation. (I suppose that last point might be somewhat debatable, because perhaps court clerks get asked to do certified copies of conviction records for all sorts of purposes. But I’m guessing that when a federal prosecutor wants a copy of such a record for use in prosecuting a felon-in-possession charge the court clerk understands what’s happening.)

But clearly, as discussed in both the majority and dissenting opinions in Melendez-Diaz, there is a long history, going back before the framing of the Confrontation Clause, of certain copies of official records being admitted against criminal defendants. Certainly this rule had, and has, practical advantages: It meant, for example, that a clerk would not have to travel from Westminster to the provinces to prove the contents of an official record. But if all that is to be said for the rule is that it saves time, trouble, and inconvenience, that might leave us very uneasy; does that open the door to general balancing? The Melendez-Diaz cordoned off this rule on historical grounds, and I think that's fair enough. Beyond that, I suspect it reflects the long-standing stature of the royal seal; a rule of law effectively gave documents under seal the status of originals. A certified copy, I think, is a descendant of the less-accessible seal.

Of course, in older times a copy under seal was not an electronic reproduction of an image but rather a product of hand copying of communicative characters. If in Smith the clerk's letter had been a verbatim copy of the document, it would have been closer to the case of the old-fashioned seal.

I believe the role of the seal and its importance with respect to proof of the contends of official documents is an important subject for future research.