Confrontation Clause Case

In a unanimous opinion authored by Judge Ryan, the CAAF held that a forgery affidavit was not testimonial such as to invoke the Constitution's Confrontation Clause. United States v. Foerster, No. 07-0093/AR (C.A.A.F. Jun. 20, 2007).

While deployed to Iraq, Sgt Porter reported to his chain of command and law enforcement authorities that someone had forged his signature to some of his checks and cashed them. When he returned to the U.S., Sgt Porter's bank required him to file a forgery affidavit before they would reimburse him for the money that was taken from his account. Sgt Porter completed the form, which required him to swear to the fact that neither he nor an authorized signatory was responsible for the checks being signed or cashed and listed each check and the payee. The forgery affidavit did notify Sgt Porter that it would be stored at the bank and might be turned over the law enforcement. The accused was the payee on the checks.

By the time of trial, Sgt Porter was redeployed to Kuwait for training before heading into Iraq. Citing Sgt Porter's leadership role, his commander declined to return him to the U.S. for the trial.

The accused objected to the admission of the forgery document on hearsay and Confrontation Clause grounds. Trial was conducted before the recent Confrontation Clause cases of Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 126 S. Ct. 2266 (2006). The judge concluded that the forgery affidavit was a business record, that the business record exception to the hearsay rule is firmly rooted, so no further Confrontation Clause analysis was necessary. The ACCA affirmed.

The CAAF held that the Confrontation Clause applied only to testimonial evidence and this forgery affidavit was not testimonial. Using a variation of the analysis adopted by the Court in United States v. Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007), for determining whether evidence was testimonial, the CAAF found that: (1) although later turned over to law enforcement the forgery affidavit was not elicited or made in response to a prosecution inquiry; (2) the document listed or catalogued objective facts and was not an accusatory statement; and (3) the primary purpose of the bank in eliciting the forgery affidavit was to protect itself from fraud by the account holder, and the primary purpose of Sgt Porter was to be reimbursed for the missing funds.

Concluding the Confrontation Clause did not bar admission of the document, the CAAF examined whether it was otherwise admissible. The Court held that the military judge was correct in determining it was admissible under the business records exception to the hearsay rule. Mil. R. Evid. 803(6).

Some commentators have speculated that evidence that passes Confrontation Clause analysis need not be analyzed under the hearsay rules. The Court didn't need to, and didn't, express an opinion on this issue.