On December 3, 2012, the Supreme Court handed down a merit decision in State v. Hood, Slip Opinion No. 2012-Ohio-5559. This case, argued November 8, 2011, was the oldest on my list of submitted cases. In a 6-1 decision written by Justice Pfeifer, the Court held that if cell phone records are properly authenticated at trial, they are business records and are non-testimonial. If they are not properly authenticated then they are inadmissible hearsay and their admission violates the defendant’s rights under the confrontation clause. In this case, the Court held the records were not properly authenticated, and should not have been admitted, but the admission was harmless error. Justice O’Donnell dissented, and would have dismissed the appeal as improvidently accepted.
The defendant was one of four men involved in an armed robbery of participants at a birthday party. The robbers made the victims strip, then stole their money and cell phones. Later, one of the four robbers, Samuel Peet was found dead. This home invasion is described in painstaking detail in Justice Pfeifer’s decision. If you are interested in this kind of thing, please read ¶s 3-13 of the opinion.
Critical to the decision in the case is that one of the pieces of evidence used against Hood was cell phone records, which were admitted through the testimony of a police detective, not through any records custodian. While the detective had no formal training relating to cell phone records, he testified that he learned how to interpret cell phone records on the job from other detectives.
Hood objected to the introduction of the cell phone records, on the grounds they had not been verified as business records, had not been identified by any phone company, and contained the detective’s personal notes. The trial court overruled the objections. The jury returned guilty verdicts against Hood for murder, kidnapping, aggravated robbery, and aggravated burglary.
The Eighth District affirmed the jury verdicts and found that even if the admission of the records was in violation of the confrontation clause, such admission was harmless error. The appeals court found that the phone records did not contribute to Hood’s conviction because there was an abundance of other evidence establishing Hood’s guilt.
Useful Rules and Precedent in Understanding this Decision
In 2004, the U.S. Supreme Court held drew a distinction between testimonial and non-testimonial evidence, and held that any testimonial statement from a witness who is unavailable to testify at trial can only be admitted if the accused has had the prior opportunity to cross-examine that witness.
The Ohio Supreme Court held that business records are not testimonial in nature because they are prepared in the ordinary course of regularly conducted business, not for litigation purposes.
To qualify for admission under Evid.R. 803(6), a business record must manifest four essential elements: (i) the record must be one regularly recorded in a regularly conducted activity; (ii) it must have been entered by a person with knowledge of the act, event orcondition; (iii) it must have been recorded at or near the time of the transaction; and (iv) a foundation must be laid by the ‘custodian’ of the record or by some ‘other qualified witness.’
In order to find constitutional error harmless, a court must find beyond a reasonable doubt that the error did not contribute to the verdict.
Where constitutional error in the admission of evidence is extant, such error is harmless beyond a reasonable doubt if the remaining evidence, standing alone, constitutes overwhelming proof of the defendant’s guilt. (paragraph six of the syllabus.)
At the Ohio Supreme Court
Hood argued that cell phone records are not admissible as business records without proper authentication, and that the admission of unauthenticated cell phone records under the business records exception violates the Confrontation Clause of the Sixth Amendment. The prosecution conceded in this case that the cell phone records were not properly authenticated, and relied on a harmless error argument.
After the decision by the U.S. Supreme Court in the Crawford case, the distinction between testimonial and non-testimonial evidence became crucial. Business records are not testimonial generally because they are prepared in the ordinary course of business, not for litigation, thus they do not usually implicate confrontation clause issues.
Just because records are used at trials does not mean the information contained in them was produced for that purpose. The regularly conducted business of cell phone companies is not producing evidence for use at trials. Thus the cell phone records in this case were non-testimonial, but that did not end the problem in this case. Even though the confrontation clause did not bar their admissibility, the hearsay rule might, and in this case, did.
The Hearsay Problem with the Phone Records in this Case
The Court held that the cell phone records in this case did not meet the requirements for admissibility under Evid. R. 803(6) because there was no foundation laid by a custodian of the records or other qualified witness. The police detective who testified about the cellphone records was not a custodian of the records, nor an “other qualified witness.” The justices were all over the prosecutor on this point at oral argument. At one point during argument Justice Pfeifer commented that “proper authentication of records is “law school evidence 101.”
In the opinion for the Court, Pfeifer wrote that “the records in this case lacked a certification or affidavit authenticating them, and no “custodian or other qualified witness” testified that the phone records were business records.” In his analysis on this point Justice Pfeifer suggested that the trial judge should have followed his instincts when the judge remarked, “my gut reaction is to subpoena Verizon.”
Because of the lack of proper authentication in this case, the cell phone records were hearsay, improperly offered in evidence to prove the truth of what was contained in them. Thus, wrote Pfeifer, this was a separate, independent basis to find a Confrontation Clause violation than the testimonial/non-testimonial distinction.
Recap Thus Far
Properly authenticated cell phone records are non-testimonial records. But if they are not properly authenticated, they are inadmissible hearsay, and their admission is a confrontation clause violation. (this would have made a nice syllabus!)
Final Step: Heightened Harmlessness Review
If the admission of evidence is constitutional error, a court must fid beyond a reasonable doubt that the error did not contribute to the verdict. The Supreme Court agreed with the Court of Appeals that in this case it was, finding the evidence of Hood’s guilt to be overwhelming. The testimony against him by one of his co-defendants was especially damaging. And the key evidence in the case that placed Hood inside the house during the birthday party invasion was in no way dependent on any cell phone records. Chief Justice O’Connor had hinted at this during argument, asking whether the cell phone records were irrelevant in light of all of the other evidence of Hood’s guilt that was introduced.
Oral argument in this case was quite lively. There was a lot of questioning about whether the admission of the cell phone records was a confrontation or an authentication issue. I thought the Court might go in more than one direction here, and it ended up analyzing both issues. I also thought that ultimately the Court could revert to a harmless error analysis. It did. The issues raised in this case are quite interesting, but it is a shame no syllabus law came out of it.