Ohio Supr CT: Use of Cell Phone Records by Prosecution Implicates 6th Amend. Confrontation Rights

The Ohio Supreme Court has held that cell-phone records produced by a cell-phone company constitute testimonial evidence that implicates a defendant’s right to cross-examine a witness under the Confrontation Clause of the Sixth Amendment to the United States Constitution.  The court concluded that ordinarily such records, if properly authenticated, are business records and are not testimonial.  However, in an instance where cell-phone records are not properly authenticated at trial, they are inadmissible as hearsay, and their admission violates a defendant’s rights under the Confrontation Clause.

The case is State v. Hood, Slip Opinion No. 2012-Ohio-5559.

Defendant James Hood allegedly was one of four men who burst into a Cleveland home and robbed at gunpoint nearly a dozen people who had gathered to celebrate the birthdays of friends and family.  A co-conspirator was shot dead during the course of the robbery.  Hood was arrested and charged with murder and multiple counts of aggravated burglary, aggravated robbery, and kidnapping.

The state introduced cell-phone records that it argued showed his communication with the other co-conspirators and his whereabouts during the early morning in question.  The prosecution argued that the records fell under the business-records exception to the hearsay rule and that the owner of the cell phone could verify the records based on his own knowledge.  A Detective who subpoenaed the records also testified as to how the police obtained the records from the cell phone company.

The issue in this case centers on the Sixth Amendment to the United States Constitution.  The Sixth Amendment provides that a criminal defendant has the right “to be confronted with the witnesses against him.”  The Supreme Court of the United States has explained that the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”

For the most part, business records – like cell phone records — are not covered by the Sixth Amendment because they are not “testimonial.”  Testimonial evidence, over-simplified slightly, is evidence that is intended for use at a trial.

The Ohio Supreme Court concluded: “Because cell-phone records are generally business records that are not prepared for litigation and are thus not testimonial, the Confrontation Clause does not affect their admissibility.”

While the Sixth Amendment may not have applied, the hearsay rules may bar the admission of the records unless an appropriate foundation for admission is provided.  Usually, evidence about the nature of the records is provided by a custodian of the record or by any other qualified witness.  The court held that the Detective did not qualify because the Detective did not “have enough familiarity with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business.”

The court concluded that the cell-phone records in this case were, as a result, inadmissible hearsay.  Notably, the court then concluded that a hearsay violation violates the Confrontation Clause of the Sixth Amendment: “any error in admitting this hearsay would be constitutional error.”  This means that any violation of hearsay law could lead to heightened review of the evidence in the case.

This ruling did not help the defendant in this case, however, because “the evidence of Hood’s guilt was overwhelming.”


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