holding return of service non-testimonial because it primarily serves administrative purpose of “ensuring that the defendant received the fair notice to which he is statutorily and constitutionally entitled, establishing a time and manner of notice for purposes of determining when the order expires or is subject to renewal, and assuring the plaintiff that the target of the order knows of its existence”
How later courts described this case
- holding return of service non-testimonial because it primarily serves administrative purpose of “ensuring that the defendant received the fair notice to which he is statutorily and constitutionally entitled, establishing a time and manner of notice for purposes of determining when the order expires or is subject to renewal, and assuring the plaintiff that the target of the order knows of its existence”
- holding that a "return of service is not created solely for use in a pending eriminal prosecution" and it was not testimonial in the context of the Confrontation Clause
- accepting the possibility the return of service could be used in later prosecution and noting the document would substitute as the “functional equivalent of the serving officer’s live testimony,” but holding the return remains non-testimonial because it was “not created solely for use in a pending criminal prosecution”
- "It is true that a return of service might be used in a later criminal prosecution to furnish proof that the defendant was on notice of the abuse prevention order entered against him. … [H]owever, a return of service is not created solely for use in a pending criminal prosecution. For this reason, it is not testimonial for purposes of the confrontation clause." (footnotes and internal citation omitted)
Written by the judges who cited it.
The opinion
Rubin, J.
(concurring). I agree that the return of service at issue here is a public record. As the court notes, ante at 832, the Supreme Court, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539-2540 (2009) (Melendez-Diaz), its most recent discussion of which records are “testimonial” for purposes of analysis under the confrontation clause of the Sixth Amendment to the United States Constitution and which are not, said,
“Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been *838 created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial.”
In essence, that language decides the case before us: The return of service at issue in this case was created for the administration of the courts, not for the purpose of establishing or proving at trial the fact of service. In the quoted language, the Supreme Court squarely addresses this circumstance, and, under that language, the return of service here is nontestimonial. That suffices to resolve this case.
I write separately, however, to note that the quoted language from the Supreme Court’s Melendez-Diaz decision is something of a non sequitur that may be viewed to create a carve-out from the general rule we apply in determining whether a statement is testimonial. Crawford v. Washington, 541 U.S. 36 (2004) (Crawford), and its follow-on Supreme Court cases, including Melendez-Diaz itself, indicate that, at least in general, statements made for a purpose other than “establishing or proving some fact at trial,” see Melendez-Diaz, supra, will not always be nontestimonial for purposes of confrontation clause analysis. Crawford itself included in the “core class of ‘testimonial’ statements” “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 51-52 . See Melendez-Diaz, 129 S. Ct. at 2531 (quoting this language). 1 It is this type of hearsay that is described by the test articulated by our Supreme Judicial Court for determining when hearsay that is not “per se” testimonial is, nonetheless, “testimonial in fact.” See Commonwealth v. Gonsalves, 445 Mass. 1, 12 (2005), cert, denied, 548 U.S. 926 (2006) (Gonsalves) 2 The Supreme Judicial Court has explained that “[t]he proper inquiry is whether a reasonable person in the declarant’s position would anticipate the statement’s being used against the accused in investigating and prosecuting a crime.” Id. at 12-13.
*839 That a document was “created for the administration of an entity’s affairs,” Melendez-Diaz, 129 S. Ct. at 2539 , does not logically exclude the possibility that it was also “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Gonsalves, 445 Mass. at 6 , quoting from Crawford, 541 U.S. at 52 . Indeed, any objective law enforcement officer who completed a return of service would reasonably believe that the factual statement contained in the return — that the order had been served upon the person upon whom it was imposed — would be available for use at a later trial should that person violate the order. The return is, after all, a statement demonstrating one element of the offense of violating a protective order. See Crawford, supra at 51 (quoting the definition of “testimony” in 2 Webster, An American Dictionary of the English Language [1828], “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact”). One might well conclude that the return is therefore “testimonial in fact” under Gonsalves.
Nonetheless, and despite the continued vitality in general of the Gonsalves test after Melendez-Diaz , see Commonwealth v. Linton, 456 Mass. 534, 550 (2010), the specific language of Melendez-Diaz, 129 S. Ct. at 2539-2540 , concerning which records are testimonial and which are not, answers the reported question before us in the affirmative. While the Melendez-Diaz language may in these circumstances represent an exception to the general rule articulated by the Supreme Court and reflected in Gonsalves, it is nonetheless controlling here. Consequently I concur in both the opinion and the judgment of the court.
Indeed, in Davis v. Washington, 547 U.S. 813, 828-829 (2006), the Court suggested that “an account of past events,” regardless of the purpose for which it was given, was “testimonial.”
An example of hearsay that is testimonial “per se” is sworn testimony given at a prior proceeding. Gonsalves, 445 Mass. at 7 .