Whether DataMaster logs were nontestimonial & admissible as business records under MRE 803(6); Solomon v Shuell; The Confrontation Clause

In an order in lieu of granting leave to appeal, the court vacated Part II(C) of the Court of Appeals opinion (see e-Journal # 73794 in the 9/14/20 edition for the published opinion), and remanded to the trial court for further proceedings. It concluded the “Court of Appeals’ suggestion that a trial court may not consider whether there are reasons to doubt the trustworthiness of a particular purported business record” lacked support. In fact, “MRE 803(6) gives the trial court discretion to consider whether any particular circumstances undercut the indicia of trustworthiness that is generally presumed to apply to business records.” The court agreed with the dissenting Court of Appeals “judge that ‘nowhere in MRE 803(6) is there any limitation on the meaning of “trustworthiness” or specification of how or why a record might lack trustworthiness[.]’” The court additionally disagreed with the Court of Appeals “majority’s assertion that the trustworthiness of the log is merely ‘a question of the weight that the fact-finder should give this evidence’ and not a question of ‘whether they are admissible as business records.’” The court noted it “already considered and rejected that argument in Shuell: ‘We disagree, however, that, under MRE 803(6), trustworthiness is not also a question of admissibility. As the rule and its theoretical underpinnings indicate, trustworthiness is, under MRE 803(6) . . . an express condition of admissibility.’” However, it concluded the trial court erred in finding “that the MRE 803(6) exception did not apply because the DataMaster technician was employed by a contractor rather than directly by the state of Michigan. The lack of a direct employer–employee relationship, without more, does not indicate a lack of trustworthiness.” The court noted the “powerful motivation” to be accurate it recognized in Shuell “applies to direct and contract employees alike—unless there is evidence that it is lacking in a particular case.” It took no position on whether the contractor or contract employee here was “sufficiently trustworthy to support the admission of the records under MRE 803(6). On remand, the trial court may consider further arguments on the issue of trustworthiness.” The court denied the application for leave to appeal in all other respects because it was not persuaded it should review the remaining question presented.

Chief Justice McCormack, joined by Justice Bernstein, concurred in “vacating the Court of Appeals’ analysis of the application of MRE 803(6).” She agreed defendant should have another opportunity to argue this hearsay exception applies “in light of unique concerns about the trustworthiness of this particular declarant.” She also concurred in the denial of leave on the separate issue “of whether a technician’s inspection logs of a DataMaster breath-testing machine are testimonial statements that trigger constitutional protections under the Confrontation Clauses” absent further guidance from the U.S. Supreme Court, but wrote “separately to express some reservations about the consensus that has seemingly emerged that these statements are nontestimonial.”