Friday, May 23, 2008

2008-05-23 Breath Test Administrator Affidavit is Testimonial Under Crawford v Washington - One Step Closer to the Data

This May 1, 2008 decision in State of Florida v Bruce Belvin, No. SC06-593 (FL 2008) appears to bring the issue of Crawford v Washington's application of 6th Amendment right-of-confrontation closer a holding that the computer information itself is testimonial in nature, and equally deserving of 6th Amendment right-to-confront protections.

In Belvin, the Florida Supreme Court overturned the Florida 4th District Court of Appeals decision holding that a breath test administrator's affidavit as to the procedures and observations was *not* testimonial hearsay. In that case, and over defense objections, the affidavit of the breath test administrator was admitted without requiring the administrator herself to testify. The Florida 4th DCA certified that issue to the Florida Supreme Court after making that ruling.

The Florida Supreme Court first discusses the history of the business records exception to the hearsay rule, and analyzes earlier U.S. Supreme Court precedent from Ohio v Roberts, 448 U.S. 56, 66 (1980):

"In Roberts the Court said that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability."

Strange as it may seem, it appears that the Florida Supreme Court interprets the Crawford decision as doing away with "indicia of trustworthiness" test because...the test itself was unreliable, and more deserving of 6th Amendment right-to-confront protection. The Belvin Court then discusses that Crawford v Washington 541 US 36 (2004) discards the "indicia of reliability" test and replaces it with 6th Amendment right-of-confrontation protection:

"The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was modified by the Supreme Court in Crawford v. Washington. Before Crawford, the Confrontation Clause issue was controlled by Ohio v. Roberts, 448 U.S. 56, 66 (1980). In Roberts the Court said that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability. "

Moreover, the Court notes:

"This test focused on the reliability of the statement. As explained in Roberts, a statement had adequate indicia of reliability if it either fell within a firmly rooted hearsay exception or if it bore ―particularized guarantees of trustworthiness. Id. However, in Crawford, the Supreme Court dispensed with the Roberts reliability analysis for testimonial hearsay and held the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if ―testimonial evidence is at issue, ―the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. ―Only [testimonial statements] cause the declarant to be a ‗witness‘ within the meaning of the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 821 (2006). ―It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. Id.

Thus, we must initially determine whether the breath test affidavit at issue in the instant case contains testimonial statements. While Crawford did not establish a precise definition for the term ―testimonial, the Supreme Court provided some guidance, holding that, at a minimum, statements are testimonial if the declarant made them at a ―preliminary hearing, before a grand jury, or at a former trial; and [in] police interrogations. Crawford, 541 U.S. at 68."

The Belvin Court then acknowledges that the affidavit is a "witness" and that the technician who created the affidavit did so to provide a "critical element" in the DUI criminal prosecution.

"Applying the rationales of Davis and Crawford to the instant case, we conclude that the breath test affidavit is testimonial. First, the affidavit was ―acting as a witness‖against the accused. Davis, 547 U.S. at 828; see Crawford, 541 U.S. at 51. The technician who created the breath test affidavit did so to prove a critical element in Belvin's DUI criminal prosecution. In other words, the breath test affidavit was created ―to establish or prove past events potentially relevant to later criminal prosecution. Davis, 547 U.S. at 822; see Thomas v. United States, 914 A.2d 1, 12-13 (D.C. Cir. 2006), cert. denied, 128 S. Ct. 241 (2007). Second, the affidavit was not created during an ongoing emergency or contemporaneously with the crime. Instead, it was created ―well after the criminal events had transpired."

The issue of contemporaneity is also discussed in the above excerpt, and acknowledgment again made that the affidavit in question was not contemporaneously created.

Using the Belvin decision rationale, we are perhaps one step closer to showing that it is the Breath-a-lyzer data itself, acting in concert with the computer environment generating that data, that establishes or proves the element of a DUI. The hint that an argument to that effect might be made:

"More precisely, the sole purpose of a breath test affidavit is to authenticate the results of the test for use at trial. See § 316.1934(5), Fla. Stat. (2007). "

Perhaps, if the argument is sufficiently well crafted, the computer information itself, rather than the affidavit of a technician interpreting that computer information, will itself be held sufficiently testimonial to invoke Crawford's 6th Amendment protection.

Link to the decision:
2008-05-23 Data Maps and eDiscovery Protocol Deliberations - Discoverable?

The question raised is not only whether internal data maps generated for eDiscovery, but whether discussions about such data map generation, together with decisional processes on selection of eDiscovery protocols, etc., (where not agreed to in advance by both parties) are discoverable.

On the one hand, an argument may be made that these documents fall under the attorney-client privilege, or are attorney work-product, and may therefore be excluded from production. A good way to ensure the availability of these arguments is to make sure that all such deliberations and drafts pass through appropriately placed counsel. The effect, of course, is to "immunize" otherwise discoverable information from disclosure and use by the requesting party.

This approach has recently received some scrutiny and comment by US Magistrate Judge David Baker (Middle District, Florida) and does not bode well for the longevity or vitality of the approach:

A leading treatise author, Paul R. Rice, has recognized the practice of businesses who may try to “immunize internal [business] communications from discovery by placing legal counsel in strategic corporate positions and funneling documents through counsel.” 1 Paul R. Rice, Attorney-Client Privilege in The United States § 7:2. “There is general agreement that the protection of the privilege applies only if the primary or predominate purpose of the attorney-client consultations is to seek legal advice or assistance.” Id. § 7:5. “There are substantial policy reasons for holding that business documents submitted for attorney review are not by that virtue automatically exempt as privileged or work product protected communications.”
Visa USA, Inc. v. First Data Corp, 2004 WL 1878209, 8 (N.D.Cal.2004).

The structure of certain business enterprises, when their legal departments have broad powers, and the manner in which they circulate documents is broad, has consequences that those companies must live with relative to their burden of persuasion when privilege is asserted. See, e.g., In re Vioxx Products Liability Litigation, 501 F.Supp.2d 789, 805 (E.D.La.2007). When the business “simultaneously sends communications to both lawyers and non-lawyers, it usually cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.” Id. (citing United States v. Chevron Corp., 1996 WL 444597 (N.D.Cal.1996)); United States v. International Business Machines Corp., 66 F.R.D. 206, 213 (S.D.N.Y.1974) (“If the document was prepared for purposes of simultaneous review by legal and non-legal personnel, it cannot be said that the primary purpose of the document is to secure legal advice.”). Consequently, the privilege does not protect such communications. In re Vioxx, 501 F.Supp.2d at 805; Attorney-Client Privilege § 7.2.1 (“Because of the ease with which e-mail technology allows in-house counsel to be brought into discussions, counsel are contacted far more frequently, and through those contacts, are likely encouraged to participate in regular business matters far more frequently and broadly than was the case in the past.”). Judge Fallon, incorporating the report from Special Master Rice FN4, explained the reasoning:
FN4. Judge Fallon selected as Special Master for privilege document discovery Professor Paul R. Rice, author of the treatise, Attorney-Client Privilege in the United States.

When these simultaneous conveyances for mixed purposes are through an e-mail message that lists the lawyers' names in the header of the e-mail message, [the defendant] Merck is revealing the contents of the single message that may have been conveyed to its lawyer primarily for legal assistance. In that circumstance, the single message could have been withheld as a privileged communication had Merck sent blind copies to the lawyers, instead of electing this format. Through a blind copy, the content of what was communicated to its attorney would have remained confidential after future discovery of the document from the other recipient's files, its purpose would have been primarily legal, and the privilege would have been applicable. Similarly, if Merck had sent a wholly separate e-mail communication with the same materials to the lawyer, the same claim could be successfully made for that single communication even though it otherwise served mixed purposes. In modern vernacular, Merck, in a variety of instances, “could have had a V-8,” but it chose another format and manner of document circulation and cannot now be heard to complain about the consequences of those choices. Otherwise, Merck would be able to limit the scope of what adversaries can discover by the way in which it chooses to communicate.

*5 Similarly, after a communication with its attachment has been sent to both lawyers and non-lawyers in the same e-mail communication, and its primary purpose is determined not to have been for obtaining legal advice, the lawyer's independent response can only be protected if the derivative nature of the privilege is ignored. Theoretically, the lawyer's response should be protected only if it reveals the content of prior confidential communications from the client. Since those communications are no longer confidential, nothing the lawyer discloses in her edits reveals protected communications of the client. 501 F.Supp.2d at 805-06." In re Seroquel Products Liability Litigation 2008 WL 1995058, 4 -5 (M.D.Fla.,2008)