How Does the Confrontation Clause Impact the Introduction of a Defendant’s Medical Records in a DWI Trial?

Two weeks ago, I wrote about the foundational requirements for introducing a defendant’s medical records in a DWI trial. Soon after I posted, a reader asked whether introducing those records through an affidavit from a records custodian violates a defendant’s Sixth Amendment right to confront witnesses against him or her. My answer is, generally speaking, no.

Medical records created for treatment purposes are non-testimonial. The Confrontation Clause of the Sixth Amendment prohibits certain out-of-court statements offered for their truth from being introduced against a defendant in a criminal trial. Specifically, testimonial statements of a declarant who does not testify at trial may be admitted only if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). Statements are testimonial when their primary purpose is to establish or prove some fact for purposes of a criminal prosecution. Ohio v. Clark, 576 U.S. 237, 246 (2015); Michigan v. Bryant, 562 U.S. 344, 359 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009); Crawford v. Washington, 541 U.S. 36, 51 (2004). Thus, while sworn reports from analysts at a state crime lab are testimonial, medical reports created for purposes of treating a patient are not – even though such records may subsequently prove useful to the State in a criminal trial. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2 (2009) (distinguishing medical reports created for treatment purposes “which would not be testimonial under our decision today” from forensic laboratory reports from a state laboratory, which the Court deemed testimonial); State v. Romano, 268 N.C. App. 440, 451, (2019) (noting that medical reports created for treatment-related purposes are not testimonial statements for Confrontation Clause purposes and concluding that blood test performed by hospital on blood withdrawn from impaired driving suspect and records documenting the results of the test were for medical treatment purposes).

How does a court determine whether medical records are created for treatment purposes? Determining whether the contents of medical records were created for purposes of treatment can be difficult in certain circumstances, particularly when the records at issue incorporate statements from an alleged victim who has been connected to a medical provider through the involvement of law enforcement. See, e.g., United States v. Norwood, 982 F.3d 1032, 1049–50 (7th Cir. 2020) (after noting the complexities present in various scenarios, opining that the analysis is more straightforward “when the only people in the room are the medical provider and the victim” since “[a]bsent additional evidence, physicians and nurses’ primary concern is the treatment of their patients; criminal investigation is a secondary concern.”). The Seventh Circuit considers whether there is “an objectively ascertainable medical reason for the inquiry” in determining whether a medical report has been made for treatment purposes. See Wilson v. Boughton, 41 F.4th 803, 810 (7th Cir. 2022). Notwithstanding the complexities introduced in other contexts, courts have readily determined that records documenting a hospital’s analysis of a patient’s blood in connection with emergency treatment after a vehicle crash or an arrest for impaired driving are created for treatment purposes. See Romano, 268 N.C. App. at 451; see also Commonwealth v. Dyer, 934 N.E.2d 293, 298–99 (Mass.  App. 2010) (concluding, based on testimony from the emergency room’s chief resident physician, that the defendant’s blood alcohol test was conducted and the results memorialized for the purposes of treatment); State v. Bobbitt, __ N.C. App. ___, 883 S.E.2d 661 (2023) (unpublished) (concluding that hospital tested the defendant’s  blood following his crash for treatment purposes and that results were nontestimonial); State v. Howard, 237 N.C. App. 617 (2014) (unpublished) (concluding that blood test conducted by hospital and records documenting its results were for medical treatment purposes and thus were nontestimonial); State v. Wood, 225 N.C. App. 268 (2013) (unpublished) (concluding that trial court did not err by admitting defendant’s medical records and opining that “even though hospital personnel may have been aware that Defendant was under investigation for impaired driving and although they may have observed Defendant speaking with [an officer], neither of those facts transforms records created for the purpose of providing Defendant with medical care into documents created for the purpose of establishing or proving some fact at trial.”); cf. State v. Kitchen, 283 N.C. App. 282, 290 (2023) (noting, without analyzing admissibility, that hospital medical records “indicate that medical personnel drew Defendant’s blood . . . for routine medical diagnosis and treatment”).

Courts appear to be able to make the determination about the purposes for entries in medical records based on the records themselves, without the requirement for testimony from the medical provider who ordered or completed testing or created other entries in the record. See, e.g., Howard, 237 N.C. App. 617, 2014 WL 6901108 at *3 (2014) (stating that “an examination of the records shows that the blood test indicating Defendant’s blood alcohol level was one of the laboratory tests ordered by [the treating physician] so that the results could be reviewed and considered in the medical decision making process.” (internal quotations omitted)); Wood, 225 N.C. App. 268, 2013 WL 150004 at *3 (determining that medical records were related to treatment and, thus, were nontestimonial by examining the records which “consist[ed] of the emergency room treatment notes made by doctors and nurses responsible for examining and treating Defendant after he was brought to the hospital following the accident” and documented “Defendant’s medical history, the observations made by various medical personnel concerning Defendant’s condition, the diagnosis of Defendant’s medical condition made by the team responsible for examining and treating him, and the nature and extent of the medical treatment that Defendant received.”).

Courts arguably also may rely an affidavit from a business records custodian stating that the records were created and kept in the regular course of the hospital’s business of treating patients as evidence that the contents of the records are related to a patient’s treatment. I say this for two reasons: First, the affidavit itself is not testimonial. See United States v. Yeley-Davis, 632 F.3d 673, 680–81 (10th Cir. 2011) (concluding that certificates of authenticity provided in connection with the production of business records for a criminal trial are non-testimonial; citing authority from Fifth, Seventh and Ninth Circuits reaching same conclusion); see also State v. Brooks, 56 A.3d 1245, 1255 (N.H. 2012), as modified on denial of reconsideration (Nov. 28, 2012) (concluding that admission of certification for business records did not violate the defendant’s confrontation rights; noting that the certifications in “served only as the foundation for the admission of the substantive evidence” and themselves “had minimal evidentiary value”). Second, the weight of authority is that the Confrontation Clause does not apply to the court’s consideration of foundational evidence for purposes of ruling on the admissibility of evidence at trial. See United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007) (per curiam) (“Crawford does not apply to the foundational evidence authenticating business records in preliminary determinations of the admissibility of evidence.”); see also United States v. Garcia, 324 F. App’x 705, 708 (10th Cir. 2009) (unpublished) (stating that “[t]here is no binding precedent from the Supreme Court or this court concerning whether Crawford applies to pretrial suppression hearings” and that “[t]o the extent that we can divine clues from our case law concerning the resolution of this issue, they do not benefit [the defendant]”).