EDNY Judge Rejects Crawford Challenge to Certification of Foreign Business Records

The Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004) - holding that testimonial hearsay is inadmissible unless the declarant is unavailable and there has been a prior opportunity to cross-examine - has spawned extensive litigation on the meaning of "testimonial."  In United States v. Qualls, 2008 WL 2091138 (E.D.N.Y., May 19, 2008), a court addressed an issue of first impression in the Second Circuit: whether a certification of foreign business records under §3505 - and by extension, certification of any business record that dispenses with live witnesses - constitutes "testimonial" hearsay. 

Relying on decisions from other circuits addressing written authentication of domestic business records, the court found it does not.  Noting that the Supreme Court itself held in Crawford that "business records 'by their nature [are] not testimonial,'" the Qualls court said it "cannot envision that the Supreme Court expressed continued support for the admission of a category of records yet prohibited the admission of records necessary to authenticate them."  To require the government to authenticate foreign business records with live testimony, particularly in complex fraud cases, "would dramatically decrease judicial efficiency at minimal or no gain to the truth-seeking process."