1708

There has been no foundation laid that this was a routine event, or that the record was filled out at or near the time of the event, or that the record-keeping was done for business (as opposed to litigation) purposes. It does not qualify as a business record.

Note that even if the foundation were laid, most courts would not permit the state to circumvent the perfectly clear rule excluding police reports in criminal cases by using the business record exception.

There is another problem -- the 6th Amendment gives to a criminal defendant the right to be confronted by the witnesses against him. If the forensic scientist were able to mail in his crucial evidence and not appear in person, the right of confrontation is denied. For that reason, the Supreme Court has recently held that the confrontation clause would prevent the use of a hearsay report even if it met all the foundation requirements unless the declarant also appeared in person. This rule applies to 'testimonial" statements only, but the Supreme Court has not clearly defined what testimonial means. This matter will be covered in topic 21.

Questions? Email tanford@indiana.edu and refer to 1708.

In part 3, the forensic report is offered by the co-defendant. Is it admissible? When you think you know the answer, click here.