What’s On Their Minds: 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 heard oral argument in the case of State v. Hood, 2010-2260. The defendant was one of four men involved in an armed robbery of participants at a card game. During the aftermath of the robberies, one of the four, Samuel Peet, was found dead from a gunshot wound. The defendant was later convicted of a number of offenses, including Peet’s murder. One of the pieces of evidence used against the defendant was cell phone records, which were admitted through the testimony of a police detective, not through any records custodian.  Read the oral argument preview of this case here.

Hood’s lawyer argued that the admission of the cellphone records in this case violated Hood’s rights under the confrontation clause of the U.S. Constitution. The prosecution failed to produce any evidence that these records were kept in the ordinary course of business.  The records were testimonial evidence because they were prepared at the request of law enforcement to help with the subsequent prosecution—one of the tests for testimonial evidence developed in the line of cases beginning with Crawford v. Washington. (To learn more about the Crawford line of cases, please read this post). Hood’s lawyer also argued that the court of appeals’ harmless error analysis was inadequate.

The prosecutor conceded that the cellphone records were not properly authenticated, but argued there could be no confrontation clause error in light of the determination by the court of appeals that the admission of these records was harmless beyond a reasonable doubt.  And that determination was correct, because there was more than sufficient additional evidence without these records to establish the defendant’s guilt beyond a reasonable doubt.  The prosecutor renewed an argument the court had overruled in an earlier motionthat the case should be dismissed as improvidently allowed in light of the appellate court’s holding that the admission of the records was harmless error.

What’s on their minds?

Questioning was lively in this case, with the justices expressing considerable exasperation at times because of the clearly sloppy way in which the records were  handled, but seemed skeptical about the Crawford  violation.

What would have been necessary to establish that these were business records?

Justice Stratton immediately jumped in and took the lead on this line of questioning.  Was testimony from the custodian of the records from some cellphone company really necessary to establish the authenticity of these records?  Wouldn’t an affidavit be good enough? Or why not have a stipulation as to the authenticity of the records?

Justices O’Donnell, Cupp, and Pfiefer showed their displeasure at the handling of the admission of evidence at the trial court level. Justice O’Donnell asked the prosecutor how difficult it would have been to do this right (answer: not very). Justice Pfeifer commented that proper authentication of records is “law school evidence 101”

Justice O’Donnell asked whether there was any record evidence from which the Court could decide whether the cellphone records were kept in the ordinary course of business, or were prepared at the detectives’ request for trial.

What was the relevance of these records?

Justice McGee Brown asked if the relevance of the records was to establish Hood’s whereabouts. Was there any physical evidence linking Hood to the crimes?

Chief Justice O’Connor asked whether the records were irrelevant in light of all of the other evidence of Hood’s guilt that was introduced.

Harmless Error?

Chief Justice O’Connor asked how the Court should handle the determination by the court of appeals that the admission of the records was harmless beyond a reasonable doubt.

Justices O’Donnell, Pfeifer, and Lanzinge wanted to know if the issue of the harmlessness of the error was even before the Court, and if so, had the court of appeals done the proper harmless error analysis?

Chief Justice O’Connor asked if the case needed to go back to the appeals court for a more thorough harmless error analysis?

But Justice McGee Brown asked whether the evidence was indisputably harmless—the detective testifying about the cellphone records was unable to explain why Hood’s cellphone was calling another of the men involved in the crime (and the one who testified against him) when the two of them were together at the time.  Justice Stratton, though, wondered whether the records custodian, had one been there, could answer that.

Chief Justice O’Connor noted that a challenge to the harmless error analysis was not the proposition of law the defendant asked the court to adopt.

Testimonial or Non-Testimonial Evidence?

Justice Lanzinger (and later Justice McGee Brown repeated this) asked if any court had determined that business records were testimonial and thus fell within the right to confrontation. She suggested that the holding in Crawford itself suggested that business records might not be testimonial evidence. She later asked whether it was defense counsel’s position that because there was the possibility (without evidence to the contrary) that the records were prepared for law enforcement purposes, they became testimonial. If there was no authentication, the records automatically became testimonial? Later, she asked the prosecutor if she was arguing that lack of authentication did not make the records testimonial (she was indeed)

Justice Pfeifer asked whether to resolve this case the Court needed to write a general rule classifying business records as testimonial. Was there a difference between records that needed some kind of interpretation or opinion, or those that are simply mechanical.

Justice Cupp asked how the Court could know whether the cellphone records were or were not collected in anticipation of criminal prosecution.  What was in the record on that point?

Chief Justice O’Connor asked whether the rigorous cross examination of the detective could provide the assurance that it wasn’t law enforcement that created the records?

Authentication problem or Confrontation problem?

Justice O’Donnell asked whether the lack of proper authentication was an evidentiary error rather than a constitutional one. If the records had been properly authenticated, he asked defense counsel if she would still be before the Court, commenting that he found her argument confused. He persisted—if the phone records had been properly  authenticated by one of the cellphone companies, and then introduced in evidence at trial there would be no confrontation clause violation, but there would be a violation if the same documents were introduced? Justice McGee Brown pressed on this as well, noting that the Court’s entire analysis could turn on this.

(Defense counsel gamely kept insisting that the documents were not the same documents with the proper certification attached, and that as introduced there was no evidence they were records kept in the ordinary course of business).

Justice Cupp finally really cut to the chase near the end of defense counsel’s argument—he asked if the Court were to find the records to be non-testimonial, would a challenge to proper authentication still require reversal?

How it Looks from the Bleachers

This one is both fascinating and messy.  All the justices were exasperated by the fact that such a complex issue arose from such a simple mistake—not getting a telephone company custodian in, or getting a stipulation that the records were kept in the ordinary course of business.   Yet a majority did not seem ready to make the leap that just because the records were not properly authenticated, they automatically became testimonial evidence.

The Court could take more than one direction here. It could find that these records were nontestimonial business record because unlike laboratory analyst findings they were, as Justice Pfeifer put it, mechanical, and did not require opinion or interpretation.  But without someone to attest to that, that may be too big a step.  Or the Court could find that this is just an evidentiary authentication problem, not a constitutional confrontation clause issue, and revert to a harmless error determination.  If it chooses that path, it could either uphold the court of appeals analysis on that point, send it back for reanalysis, or agree with the state that that issue wasn’t raised by the defendant, and reconsider its decision about dismissing the appeal as improvident.



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