U.S. v. Foerster, 65 M.J. 120

First Principles: Constitutional Matters: Confrontation

1. the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him; in the context of out-of-court statements, this right applies to testimonial statements; only statements of this sort cause the declarant to be a witness within the meaning of the Confrontation Clause; although the Supreme Court has expressly declined to set forth an all encompassing definition of testimonial, the Court in Crawford v. Washington, 541 US 36 (2004), did state that whatever else the term testimonial covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations; also, a possible definition of testimonial provided by the Court in Crawford focused on this circumstance: statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial
2. the Confrontation Clause of the Sixth Amendment should not be read as a wholesale nullification of the hearsay exceptions outlined in the Military Rules of Evidence
3. for the purposes of the Confrontation Clause of the Sixth Amendment, relevant factors in distinguishing between testimonial and nontestimonial hearsay made under circumstances that would cause an objective witness to reasonably believe that the statement would be available for use at a later trial include: (1) whether the statement was elicited by or made in response to law enforcement or prosecutorial inquiry; (2) whether the statement involved more than a routine and objective cataloging of unambiguous factual matters; and, (3) whether the primary purpose for making, or eliciting, the statements was the production of evidence with an eye toward trial; the final factor, whether the primary purpose was prosecutorial in nature, necessitates a contextual analysis
4. an affidavit filled out by a victim of check fraud pursuant to internal bank procedures and without law enforcement involvement in the creation of the document was admissible as a non-testimonial business record that did not implicate the Sixth Amendment’s right of confrontation in light of Crawford v. Washington, 541 US 36 (2004) and Davis v. Washington, 126 SCt 2266 (2006), where the affidavit was made at the behest of bank and not law enforcement officials, the affidavit cataloged objective facts, and the primary purpose of the bank in eliciting the affidavit was to ensure that it would not be defrauded by an account holder; although the affidavit did contain language allowing the document to be turned over to law enforcement, that did not change the primary purpose for either eliciting or making the statement; nor is there authority to suggest that that fact, without more, transforms a nontestimonial business record into a testimonial statement; this affidavit was akin to other formal documents that courts have concluded are nontestimonial, such as military personnel records, urinalysis lab reports, and deportation warrants; the absence of evidence that a document was generated for the purpose of producing evidence at trial is important in determining whether it is nontestimonial
5. every document labeled “affidavit” is not, for that reason alone, a testimonial statement that implicates the Confrontation Clause of the Sixth Amendment; rather, affidavits that would be presumptively testimonial refer to ex parte affidavits developed: (1) by law enforcement or government officials, and (2) by private individuals acting in concert with or at the behest of law enforcement or government officials; other affidavits remain subject to a contextual analysis to determine whether they are, or are not, testimonial

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. the Confrontation Clause of the Sixth Amendment should not be read as a wholesale nullification of the hearsay exceptions outlined in the Military Rules of Evidence
2. for the purposes of the Confrontation Clause of the Sixth Amendment, relevant factors in distinguishing between testimonial and nontestimonial hearsay made under circumstances that would cause an objective witness to reasonably believe that the statement would be available for use at a later trial include: (1) whether the statement was elicited by or made in response to law enforcement or prosecutorial inquiry; (2) whether the statement involved more than a routine and objective cataloging of unambiguous factual matters; and, (3) whether the primary purpose for making, or eliciting, the statements was the production of evidence with an eye toward trial; the final factor, whether the primary purpose was prosecutorial in nature, necessitates a contextual analysis
3. an affidavit filled out by a victim of check fraud pursuant to internal bank procedures and without law enforcement involvement in the creation of the document was admissible as a non-testimonial business record that did not implicate the Sixth Amendment’s right of confrontation in light of Crawford v. Washington, 541 US 36 (2004) and Davis v. Washington, 126 SCt 2266 (2006), where the affidavit was made at the behest of bank and not law enforcement officials, the affidavit cataloged objective facts, and the primary purpose of the bank in eliciting the affidavit was to ensure that it would not be defrauded by an account holder; although the affidavit did contain language allowing the document to be turned over to law enforcement, that did not change the primary purpose for either eliciting or making the statement; nor is there authority to suggest that that fact, without more, transforms a nontestimonial business record into a testimonial statement; this affidavit was akin to other formal documents that courts have concluded are nontestimonial, such as military personnel records, urinalysis lab reports, and deportation warrants; the absence of evidence that a document was generated for the purpose of producing evidence at trial is important in determining whether it is nontestimonial
4. every document labeled “affidavit” is not, for that reason alone, a testimonial statement that implicates the Confrontation Clause of the Sixth Amendment; rather, affidavits that would be presumptively testimonial refer to ex parte affidavits developed: (1) by law enforcement or government officials, and (2) by private individuals acting in concert with or at the behest of law enforcement or government officials; other affidavits remain subject to a contextual analysis to determine whether they are, or are not, testimonial

Core Criminal Law Subjects: Evidence: Hearsay › Business entries

1. MRE 803(6) allows for the admission of business records that would otherwise be inadmissible hearsay as long as the holder of the record is a business and the record is made at or near the time by, or from information transmitted by, a person with knowledge, is kept in the course of a regularly conducted business, and it was the regular practice of that business to make such records; there is no unavailability requirement under this rule; the business records exception should be construed generously in favor of admissibility
2. a document prepared by a third party is properly admitted as part of a second business entity’s records if the second business integrated the document into its records and relied upon it in the ordinary course of its business; there are three requirements when a business adopts a record prepared by another: (1) the record must be procured by the second entity in the normal course of business; (2) the second entity must show that it relied on the record; and (3) there must be other circumstances indicating the trustworthiness of the document
3. the military judge did not abuse her discretion in admitting a forgery affidavit filled out by a victim of check fraud as a business record under MRE 803(6), where the affidavit was procured in the ordinary course of business pursuant to the bank’s standard operating procedures, the bank relied on the affidavit and adopted it as its own in deciding whether to reimburse the victim, and the affidavit bore sufficient indicia of trustworthiness

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether a document constitutes testimonial hearsay is a legal question that an appellate court reviews de novo
2. an appellate court accepts a military judge’s findings of fact unless they are clearly erroneous or unsupported by the record
3. a military judge’s evidentiary ruling that a forgery affidavit was admissible as a business record under MRE 803(6) is reviewed by an appellate court for an abuse of discretion