Crawford v. Washington (out of court testimonials/business records exception)—cross-examination/crawford-and-beyond.pdf?sfvrsn=4


The Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004),

dramatically changed the legal framework for analysis of out-of-court statements. If a

statement is “testimonial,” it cannot be admitted against a defendant at trial unless the

government establishes both that the declarant is unavailable and the defendant had an

adequate opportunity to cross-examine the declarant. If the statement is not testimonial,

its admissibility is governed by the rules of evidence and the reliability requirements of

due process.

In attempting to exclude the government’s proffered statements, counsel must be

sure to object on at least three separate grounds: 1) the evidence is testimonial and

admission violates the Sixth Amendment right to confrontation, 2) the evidence is

unreliable and therefore admission violates the Due Process Clause of the Fifth

Amendment, and 3) the government has failed to establish that the evidence is

admissible under the rules of evidence (hearsay, etc.). This paper addresses the Sixth

Amendment implications of Crawford, as well as its applicability to rules of evidence

governing prior statements.

D. “Business Records” Exception

A record of “regularly conducted activity” is admissible, pursuant to Fed. R. Evid.

803(6), of (1) acts, events, conditions, opinions or diagnoses, (2) made at or near the

time, United States v. Williams, 661 F.2d 528 (5th Cir. 1981) (3 years too long); (3) by or

from information transmitted by a person with knowledge, United States v. Davis, 571

F.2d 1354, 1360 (5th Cir. 1978) (response to ATF questionaire not admissible; (4) if kept

in the course of regularly conducted business activity, and (5) it was the regular practice

of that business activity to make the record, United States v. Robinson, 700 F.2d 205,

210 (5th Cir. 1983) (excluded); Williams, supra; (6) unless the source of information or

the method or circumstance of preparation “indicate a lack of trustworthiness.” United

States v. Wells, 262 F.3d 455, 459 (5th Cir. 2001)(destroyed drug ledgers insufficiently

reliable). The document cannot have been prepared primarily for litigation, Broadcast

Music, Inc. v. Xanthas, 855 F.2d 233, 238 (5th Cir. 1988); Williams, 661 F.2d at 530; Pan-

Islamic Trade Corp. V. Exxon Corp., 632 F.2d 539 (5th Cir. 1980).

Statements in business records are non-testimonial. United States v. Munoz-

Franco, 487 F.3d 25 (1


Cir. 2007) (Bank board minutes); United States v. Gilbertson,

435 F.3d 790, 796 (7th Cir. 2006) (odometer records); United States v. Jamieson, 427


F.3d 394, 411 (6th Cir. 2005) (summary based on business records), cert. denied, 126


S.Ct. 2909 (2006); Johnson v. Renico, 314 F.Supp.2d 700, 705-08 (E.D.Mich. 2004)


(regarding statements by defendants in booking records). Because business records are


not-testimonial, an affidavit of authenticity is likewise not subject to Sixth Amendment




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