Oral Argument Preview: Are Cellphone Records Admissible at Trial as Business Records? State v. Hood.

Update: On December 3, 2012, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On November 2, the Supreme Court of Ohio will hear oral argument in the case of State v. Hood, 2010-2260. The issue in this case is whether cell phone records may be admissible at trial as business records. This is one of a series of cases the Supreme Court of Ohio is grappling with arising out of confrontation clause issues raised by the United States Supreme Court in Crawford v. Washington.  For a detailed explanation of these issues, see the post on confrontation clause issues here.

Defendant was one of four men involved in an armed robbery of participants at a card game. The assailants took clothing, money and cell phones from the participants. During the aftermath of the robberies, one of the four, Samuel Peet, was found dead from a gunshot wound.

Later in the day the police stopped a jeep at a neighborhood McDonald’s.  The three men in the jeep, including Hood, were arrested.  The police recovered cellphones, cash, and some clothing stolen from the victims. Hood and his co-defendants were indicted for various felonies  stemming from the robbery, and later re-indicted for the murder of Peet. One of the three men apprehended at McDonald’s, Kareem Hill, admitted his involvement and acted as a State’s witness. He implicated Hood in the crimes.

To provide support for Hill’s testimony, the State called Detective Henry Veverka as a witness, and introduced through him cell phone records and documents regarding the cell phone activity and movement of Hood and his alleged co-conspirators. These records showed that Hill and Hood were in constant communication with each other and the other alleged co-conspirators on the night of the robbery. While Veverka had no formal training relating to cell phone records, he stated he learned how to interpret cell phone records on the job from other detectives. Hood objected to the introduction of the cell phone records, which the trial court overruled. The jury returned guilty verdicts against Hood for murder, kidnapping, aggravated robbery, and aggravated burglary.

Hood appealed to the Eighth District Court of Appeals arguing, in part, that the trial court’s admission of the cell phone records was done “without being properly authenticated in violation of the Confrontation Clause.”  The Eighth District affirmed the jury verdicts and found that the admission of the records did not contribute to Hood’s convictions because there was an abundance of other evidence showing Hood’s guilt.

The proposition of law Hood proposes is this:

  “Cell phone records are not admissible as business records without proper authentication. The admission of unauthenticated cell phone records under the business records exception violates the Confrontation Clause of the Sixth Amendment to the United States Constitution.”

Hood’s main argument is that the state subpoenaed and produced the records specifically to show his involvement in the robbery, making the cell phone records testimonial evidence.  Relying on the Supreme Court case of Melendez-Diaz v. Massachusetts, Hood states that he has the right to confront the person who prepared the records and cross-examine that person as to the accuracy of the records, the detail of the records, how the records were compiled, and the interpretation/analysis of the records. Detective Veverka did not have this knowledge and could not adequately answer questions posed by Hood’s counsel during cross-examination. The state, by failing to produce a witness who could testify with actual knowledge that the documents were what the state said they were, did not follow the rules of evidence and the cell phone records should not have been admitted.

The state’s chief argument is that cell phone records are business records which are non-testimonial and therefore are not subject to the confrontation clause. They were compiled in the course of a business’s affairs for record-keeping, not for use in criminal trials.  They are not like laboratory analyst reports (which the U.S. Supreme Court has found to be testimonial evidence) because they don’t call for any particular forensic expertise or testing. Since cell phone records do not require professional judgment or questionable scientific methods to interpret them, the state was justified in having the resident “cell phone expert” testify as to their significance.

The state also argues the cell phone records were properly authenticated as required by the Ohio Rules of Evidence.  The trial court did not abuse its discretion by not requiring the testimony from a representative of the cellular telephone company.  The records were properly authenticated by the two homicide detectives and co-defendant Hill.

Finally, the state claims the admission of the records, if improper, was harmless because the conviction was premised on an overwhelming amount of evidence unrelated to the cell phone records. Hood disputes this point.

Ohio Attorney General Michael DeWine has filed an amicus brief in support of the state, arguing that business records are non-testimonial and therefore do not trigger the Confrontation Clause if admitted into evidence.

Student Contributor: Jason Persinger

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