Foreign Business Records, 18 USC 3505, Certification

Will the new US Supreme Court case USA v Melendez-Diaz June 25, 2009, require a different result? Melendez-Diaz, 5-4 concludes that forensic lab reports cannot be admitted at trial without live testimony.

"The admission of the certificates violated petitioner’s SixthAmendment right to confront the witnesses against him. Pp. 3–23. (a) Under Crawford, a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness isunavailable, the defendant had a prior opportunity for crossexamination. 541 U. S., at 54. The certificates here are affidavits, which fall within the "core class of testimonial statements" covered by the Confrontation Clause, id., at 51. "

Although the issue is relatively different, are not the certifications as to authenticity of foreign business records testimonial, in those cases in which a document or record is not otherwise self-authenticating?

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Previously posted:
A federal court judge in USA v Kos, W.D. NC, ruled November. 25, 2008, that the certification of foreign business records pursuant to 18 USC 3505 does not violate a defendant's right to confrontation or Crawford.

Ruling in favor of the government's motion in limine to admit foreign business records, (to admit the records), the Court referenced one decision, post- Crawford, addressing a Confrontation Clause challenge to the certification of foreign business records. "In United States v. Qualls, 553 F.Supp.2d 241, 245-46 (E.D.N.Y.2008), the district court concluded “that the authentication of foreign business records pursuant to § 3505 does not violate the Confrontation Clause.”

" Moreover, in complex cases such as this one, that involve the admission of business records from numerous sources, including foreign entities, a holding as Defendant suggests would dramatically decrease judicial efficiency at minimal or no gain to the truth-seeking process. This is particularly true in light of today's global economy and the facilitation of international financial transactions by the advent of modern technology such as the internet. The government would be required to call a live witness or to accompany the defendant on a deposition abroad to lay the foundation for the business records of each foreign entity it sought to introduce. Such procedures for admission of foundational evidence would swallow up the efficiency gained by the exception.

Certifications of foreign business records are not the sort of testimonial evidence the Confrontation Clause bars. To be sure, the custodians would reasonably expect that their certifications would be used prosecutorially. However, a “business record certification ... does not serve independently as evidence in th[e] case; rather, it serves merely to lay a foundation for the admission of business records.

If the business records themselves are non-testimonial, see Crawford, 541 U.S. at 56; United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir.2008), it seems illogical to conclude that the document which authenticates them is testimonial. Thus, the court holds that the Confrontation Clause does not bar admission of the foreign business records certifications at issue here and the foreign business records.

Because the court concludes that the Confrontation Clause does not apply to the certifications here, the court is not required to determine that the certifications (or the underlying records themselves) bear sufficient indicia of reliability. Even if reliability was required, the court would not find it lacking based on the certifications alone.