Playing With FirePosted by Scott Heiser, Director of ALDF's Criminal Justice Program on May 10th, 2010
Confrontation Clause Implications of Admitting Veterinary Records Under the “Business Records” Exception to the Rule Against Hearsay
At the risk of someone inviting me to “get a life,” I have to admit that I was reading a couple of appellate opinions on a Friday night while my wife was away. I should have gone sailing, but the winds were light and our two dogs and two cats all seemed glad that I was home. So, during my raucous, bachelor evening, a recent Texas case caught my eye – Holz v. State, 2010 Tex. App. LEXIS 2017.
In Holtz, the defendant appealed her animal abuse conviction (for failing to provide food, water, or shelter to an approximately eight-year-old dog), in part, by claiming that the trial court violated the Sixth Amendment’s Confrontation Clause when it admitted into the evidence two sets of reports compiled by a veterinary technician and the lead veterinarian assisting law enforcement with a criminal investigation against the defendant. Neither the vet nor the vet technician was available to testify at the trial. The state offered these reports under the “business records” exception to the rule against hearsay and the defendant objected, claiming that the records were “testimonial” and therefore barred under Crawford v. Washington, 124 S.Ct. 1354 (2004) as a violation of her right to confront the witnesses who generated the reports. I know, this is fascinating stuff, especially when one takes it all in on a Friday night… But, I digress.
The general rule is that business records do not raise a Crawford issue, because, by definition, they have been created for the administration of an entity’s affairs and not for the purposes of establishing or proving a fact at trial. Accordingly, they are generally viewed as not being testimonial in nature and as such, there is no constitutionally right to confront or cross-examine the non-testimonial declarant who generated the business records. However, if the business record at issue was “prepared specifically for use at … trial”, then we have a problem. See Melendez-Diaz, 129 S.Ct. 2527 (2009).
In Holz’s case, because the vet and vet tech were involved in the seizure of neglected animals for the purpose of triaging, diagnosing and treating the victims animals, the appellate court found that these reports were akin to medical records in assault cases (e.g., records compiled by E.R. staff for diagnostic or medical treatment purposes) and held the vet records to be non-testimonial. As such, they qualified under the business records exception and did not trigger a Sixth Amendment Confrontation Clause issue. So, the defendant lost her appeal.
What if, however, the vet and vet tech in Holz’s case where part of an “animal crimes task force” and they regularly met with police to advise and guide investigations in cases where issues of forensic veterinary medicine commonly came up and the cops needed their expert advice to work the case? That issue gets a bit murkier—a point especially well-illustrated in an Oregon case where the statements that a child abuse victim (age 3) made to a medical provider who worked at a child abuse assessment center - where that center enjoyed a close working relationship with law enforcement - were found to be testimonial and therefore subject to Crawford. State ex rel. Juvenile Department v. S.P., 346 Or 592 (2009).
While I generally agree that a well-coordinated response to criminal conduct is the preferred model (the importance of which is even more obvious when dealing with cases where the victims can’t physically testify – not to mention, in the S.P. case, was legally incompetent), one needs to be mindful of the collateral consequences of forming formal partnerships with law enforcement when it comes to Crawford issues. This is especially true with the ever-growing list of jurisdictions fielding animal cruelty taskforces that include veterinarians. Prosecutors play with fire when they fail to consider that the “testimonial” nature of hearsay statements generated by such task force veterinarians (where the declarant is not available at trial) is an open invitation to have key evidence excluded.