In the Courts

In United States v. Feliz, ____ F.3d _____, 2006 WL 3021118 (2d Cir. Oct. 25, 2006), the Second Circuit held that the admission of business records and public records does not implicate the defendant's Sixth Amendment rights and the defendant need not be given the opportunity to confront the preparer of properly admitted business or public records.

The defendant was convicted of racketeering activities and related charges including conspiracy to commit murder. He appealed his conviction arguing that the admission of business records, in this case autopsy reports, containing testimonial statements violated his rights under the Confrontation Clause of the Sixth Amendment as articulated in Crawford v. Washington, 541 U.S. 36 (2004). He argued that because the medical examiners preparing the report must have had a reasonable expectation that the report may be used in a subsequent trial, the statements in the report must be considered testimonial in nature. If the statements are testimonial then, under Crawford, his confrontation right was violated because he had no opportunity to cross-examine the medical examiners who prepared the reports. The Second Circuit disagreed. The circuit court explained that the reasonable expectation of the declarant is not what distinguishes testimonial from nontestimonial statements. The court held that statements properly admitted as business records under Federal Rule of Evidence 803(6) are not testimonial within the meaning of Crawford, even if the declarant is aware that his statements may be used at trial, and that therefore business records do not implicate the defendant's right to confrontation. The court went on to note that the autopsy records are also public records and that public records, like business records, are also nontestimonial in nature.