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Affidavits/Business Records and Crawford


Affidavits that are testimonial in nature require the declarant to testify or opposing party to have an opportunity to cross-examine. Certificates of drug analysis that confirmed the results of the analysis as cocaine were testimonial in nature and thus required live testimony. · Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)


Testimony by custodians for purposes of business records does not implicate Crawford if the records and testimony are nontestimonial in nature. See also State v. Trapp, 420 S.C. 217 (2017) (Trial court properly admitted records from a non-testifying witness because these records were nontestimonial and the primary purpose of their maintenance and creation “was to document seized evidence and attempt to accurately account for the items as they were transferred” for analyzing.) · State v. Brockmeyer, 406 S.C. 324 (2013)


There is a distinction between affidavits used to provide evidence against a defendant and affidavits used to provide evidence of authentication. Trial court properly admitted affidavits of business record certifications. “Accordingly, business records, ‘having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial,’ are not testimonial. Indeed, Denton does not dispute that the Facebook, Google, and Time Warner Cable records themselves were not subject to confrontation. And although affidavits generally fall within the ‘core class’ of testimonial statements, the Supreme Court has differentiated between an affidavit that is created ‘for the sole purpose of providing evidence against a defendant’ and an affidavit that is created to ‘authenticate or provide a copy of an otherwise admissible record,’. Put simply, the former is testimonial and therefore subject to confrontation, while the latter is not.” (citations omitted). · United States v. Denton, 944 F.3d 170 (4th Cir. 2019)