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 [...]