Yesterday the Circuit engaged in a bit of harmless error in describing the relationship between the Confrontation Clause and the business records exception to the hearsay rule, Fed. R. Evid. 803(6). The mistake in United States v. Grecco, No. 16-3112 (2d Cir. 2008) (Jacobs, Wesley, Korman (EDNY)), available here, is worth flagging because it has the potential to create problems in future cases.
The appeal in Grecco raised the question of whether the admission of an autopsy report violated the Confrontation Clause because the report was “testimonial” in nature. The panel held that any error in admitting the report was harmless, and thus declined to address this question. The panel repeatedly framed the question, however, as “whether the autopsy report was testimonial in nature, or a business record that is therefore not subject to Confrontation Clause requirements.” Sum. op. at 3.
This framing misstates the law. At one time, the Second Circuit indeed held that business records fell outside Crawford‘s definition of testimonial. See United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006). In Melendez-Diaz v. Massachusetts, 557 U.S 305 (2009), however, the Supreme Court expressly rejected any hard-and-fast distinction between business records and testimonial hearsay. See id. at 324 (“Whether or not they qualify as business or official records, the analysts’ statements here—prepared specifically for use at petitioner’s trial—were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.”) The Second Circuit has recognized that Melendez-Diaz abrogated its prior rule, and held that the four-judge plurality opinion in Williams v. New York, 567 U.S. 50 (2012), does not change this conclusion. See United States v. James, 712 F.3d 79, 94-96 (2d Cir. 2013).
Hopefully the panel will revise its summary opinion to correct this error. In the event that it does not, practitioners should note the error and take care to avoid replicating it.