Earlier this month the Appeals court Answered the question of whether a 209a orders return of service violates the confrontation clause as applied under the Melendez Diaz decision in COMMONWEALTH vs. SPENCER SHANGKUAN 78 Mass. App. Ct. 827 (2011). The case revolved around a restraining order that had been served by a New Jersey Police officer and whether his being unavailable at trial here in Massachusetts violated the right to confrontation of witnesses. In rejecting that argument the court outlined several points that prosecutors will find very interesting.
The court in deciding stated “Discussion. “To establish a violation of G. L. c. 209A, § 7, the Commonwealth must [prove beyond a reasonable doubt] that (1) a valid G. L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order.” Commonwealth v. Griffen, 444 Mass. 1004 , 1005 (2005), quoting from Commonwealth v. Silva, 431 Mass. 401 , 403 (2000). We are concerned here with the third element, because the Commonwealth seeks to use the return of service as evidence the defendant knew of the order. The defendant argues that the return is inadmissible hearsay and that its introduction, absent an opportunity to cross-examine the New Jersey police officer who signed it, violates his confrontation rights.
1. Hearsay. Although there may be instances where a return of service is not being offered for its truth, that is not the case here. Here, the Commonwealth seeks to introduce the certificate to prove that the order was served on the defendant in hand on December 10, 2006. If used in this manner, the return is hearsay, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Mass. G. Evid. § 801(c) (2010). Hearsay is “generally inadmissible unless it falls within an exception to the hearsay rule.” Commonwealth v. Rice, 441 Mass. 291 , 305 (2004). See Mass. G. Evid. § 802. The Commonwealth, relying on G. L. c. 233, § 76, [Note 6] and Mass.R.Crim.P. 40, 378 Mass. 917 (1979), argues that the return of service falls within the official or public records exception to the hearsay rule because the return is maintained by the court. This argument fails because the statute and the rule both pertain to the authenticity of a copy of an otherwise admissible public record. Authenticity is a precondition to, not the equivalent of, admissibility. See Mass. G. Evid. § 901; Brodin & Avery, Massachusetts Evidence § 9.2 (8th ed. 2007). The fact that a document is authentic as an official record does not mean that the document is admissible under the official or public records exception to the hearsay rule. See Jacobs v. Hertz Corp., 358 Mass. 541 , 544 (1970) (a statement in an official court record is not admissible simply because it has been authenticated as an official record; the underlying statement must be otherwise admissible).
Instead, we must determine whether the statement contained in the return of service (to wit, that the defendant was served in hand on a particular day) falls within the official or public records exception to the hearsay rule because it is a “record of a primary fact, made by a public officer in the performance of official duty.” [Note 8] Commonwealth v. Slavski, 245 Mass. 405 , 417 (1923). See Mass. G. Evid. § 803(8)(A). “The duty may be imposed by a foreign law, and the official may be a foreign official. The duty need not be imposed directly by statute.” Brodin & Avery, Massachusetts Evidence, supra at § 8.12.1, at 544. Statements of opinion or judgment are not admissible under the exception. See Commonwealth v. Slavski, supra.
Here, the return of service was clearly prepared by an official in the performance of an official duty. The order itself directed the applicable law enforcement officer to serve the defendant in hand and to “make return of service to this Court.” Likewise, G. L. c. 209A, § 7, requires the appropriate law enforcement agency to serve the subject of a c. 209A order and to “promptly make its return of service to the court.” Whether these respective authorities are sufficient of their own force to require compliance by a foreign police officer is a question we need not answer because the full faith and credit provision of the Violence Against Women Act, 18 U.S.C. § 2265 (2006), requires that a protective order of one State be accorded full faith and credit by law enforcement officers of the other States “as if it were” an order of their own. 18 U.S.C. § 2265(a). New Jersey’s statute governing protective orders provides that police officers “shall” serve such orders when they are issued by the courts of New Jersey. Taken together, these statutory provisions demonstrate that the return of service is a “record of a primary fact, made by a public officer in the performance of official duty,” Commonwealth v. Slavski, 245 Mass. at 417, such that it falls within the official or public records exception to the hearsay rule. The certificate simply records the occurrence of an action the officer was required by law to perform.
2. Confrontation. That the return of service is admissible as an official or public record does not answer the question whether its admission, absent live testimony or a prior opportunity to cross-examine the declarant, violates the confrontation clause. See Crawford v. Washington, 541 U.S. 36, 50- 51 (2004) (Crawford). The confrontation clause applies to witnesses who “bear testimony” against the accused, regardless of whether their statements are admissible under the rules of evidence. Ibid. ” ‘Testimony’ . . . is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact’ ” at trial. Id. at 51, quoting from 2 Webster, An American Dictionary of the English Language (1828). Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (Melendez-Diaz) (same).
“Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been 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.” Id. at 2539-2540. However, documents “prepared specifically for use at [the defendant’s] trial” are testimonial “[w]hether or not they qualify as business or official records.” Id. at 2540. Thus, the fact that the return of service in this case is a public record does not of itself establish that it is not “testimonial” for purposes of the confrontation clause. Rather, the document, in addition to being a public record, must not have been created for the purpose of establishing or proving some fact at the defendant’s criminal trial.
With the exception of some ex parte documents, we are unaware of any document filed with, or issued by, our courts that is not required to be served by, or on, the parties. Whether the proceeding is criminal or civil, the fair administration of justice requires that parties and the court be advised of the service of pleadings and filings. Our judicial system does not work without notice to all involved. Numerous court rules reflect the requirement of service. See, e.g., Mass.R.Civ.P. 4, as amended, 402 Mass. 1401 (1988); Mass.R.Civ.P. 5, as amended, 404 Mass. 1401 (1989); Mass.R.Crim.P. 13(a)(3), as appearing in 442 Mass. 1516 (2004). In the case of c. 209A orders such as the one involved here, the statute itself not only requires service but also specifies how it is to be made and returned. G. L. c. 209A, § 7. Even without such a statutory provision, due process would require that the subject of a c. 209A order receive notice of it and its terms. See, e.g., Commonwealth v. Delaney, 425 Mass. 587 , 592 (1997), cert. denied, 522 U.S. 1058 (1998). Although formal service of the order is not the only way due process can be satisfied, see id. at 592-593, it is certainly the most common.
The return of service completes the service of process. 62B Am. Jur. 2d Process § 278 (2d ed. 2005). It gives “assurance that service really has been made and establish[es] that proceedings implementing the constitutional requirements of due process were followed.” Ibid. See Cape Cod Bank & Trust Co. v. LeTendre, 384 Mass. 481 , 486 (1981) (the absence of a certificate of service may be considered by a judge as some evidence that service was not actually made). See also Davis v. MCI Communications Servs., 421 F. Supp. 2d 1178, 1182 n.1 (E.D. Mo. 2006) (“the purpose of a certificate of service is to inform the court that the paper has been served on other parties”).
We conclude that the primary purpose for which the return of service in this case was created is to serve the routine administrative functions of the court system, ensuring that the defendant received the fair notice to which he is statutorily and constitutionally entitled (see G. L. c. 209A, § 7, and the due process clause of the Fourteenth Amendment to the United States Constitution), 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. The return of service here was not created for the purpose of establishing or proving some fact at a potential future criminal trial. Compare Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167 , 171 n.3 (2010) (Registry of Motor Vehicles [RMV] documents); Commonwealth v. McMullin, 76 Mass. App. Ct. 904 , 904 (2010) (RMV and court documents); Commonwealth v. Weeks, 77 Mass. App. Ct. 1 , 4-7 (2010) (certified copies of docket sheets showing defendant’s prior convictions); Commonwealth v. Dyer, 77 Mass. App. Ct. 850 , 853-855 (2010) (hospital record of blood alcohol content).
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. When so used, returns are the functional equivalent of the serving officer’s live testimony. In this sense they bear some resemblance to the drug analysis certificates in Melendez-Diaz. Unlike the drug certificates at issue in Melendez-Diaz, however, a return of service is not created solely for use in a pending criminal prosecution. See Melendez-Diaz, 129 S. Ct. at 2539-2540. For this reason, it is not testimonial for purposes of the confrontation clause. Contrast id. at 2540.
Unlike the United States Supreme Court, which has not articulated any particular analytical process for determining whether a statement is “testimonial,” the Supreme Judicial Court has “adopted a two-step test for determining whether an out-of-court statement is testimonial.” Commonwealth v. Simon, 456 Mass. 280 , 297, cert. denied, 131 S. Ct. 181 (2010). This two-step framework requires that we first determine whether the statement is testimonial per se and, second, even if it is not testimonial per se, whether the statement is “testimonial in fact.” Commonwealth v. Gonsalves, 445 Mass. 1 , 12 (2005), cert. denied, 548 U.S. 926 (2006) (Gonsalves). Under the two-step Gonsalves test,
“A statement is testimonial per se if it was made in a formal or solemnized form (such as a deposition, affidavit, confession, or prior testimony) or in response to law enforcement interrogation. . . . Second, if a statement is not testimonial per se, we consider whether the statement is nonetheless testimonial in fact. A statement is testimonial in fact if ‘a reasonable person in the declarant’s position would anticipate the statement’s being used against the accused in investigating and prosecuting the crime.’ ”
Commonwealth v. Simon, 456 Mass. at 297, quoting from Gonsalves, supra at 12- 13. This two-step analytical framework is not intended to produce results at odds with Supreme Court cases, whether analyzing confrontation rights under the Sixth Amendment or art. 12 of the Massachusetts Declaration of Rights. Indeed, the Supreme Judicial Court has “always held that the protection provided by art. 12 is coextensive with the guarantees of the Sixth Amendment to the United States Constitution.” Commonwealth v. Lao, 450 Mass. 215 , 223 (2007). And the Supreme Judicial Court has also made clear that the two-step Gonsalves framework must be read in harmony with the Supreme Court’s confrontation clause decisions. See Commonwealth v. Simon, 456 Mass. at 297-298 (Gonsalves’s definition of when statements to officers are not testimonial per se must be modified to comport with Davis v. Washington, 547 U.S. 813 ).
Accordingly, although the return of service in this case is a formal or solemnized statement, see Commonwealth v. Simon, 456 Mass. at 297, it is not per se testimonial. To hold otherwise would be inconsistent with Melendez-Diaz, in which, as we have seen above, the Supreme Court held that business and official records are not testimonial provided they were not created to prove some fact at a criminal trial. See Melendez-Diaz, 129 S. Ct. at 2539- 2540.
Nor is the return of service testimonial in fact. Although we acknowledge that certain circumstances weigh in favor of finding that “a reasonable person in the declarant’s position would anticipate the statement’s being used against the accused in investigating and prosecuting the crime,” Commonwealth v. Simon, 456 Mass. at 297, quoting from Gonsalves, 445 Mass. at 12-13, others lead to the opposite conclusion. In balancing these various considerations, we deem the contemporaneous purpose for which the statement was made to be the truest touchstone of whether a particular statement is testimonial in fact. It is on this basis that the Supreme Court has held that business and public records do not raise confrontation concerns, Melendez-Diaz, 129 S. Ct. at 2539-2540, and it is on this basis that we hold that the return of service here is not testimonial in fact.
Conclusion. For the reasons set out above, we answer the reported question, “Yes.” A properly completed and returned c. 209A return of service is admissible under the official or public records exception to the hearsay rule, and its admission at trial absent the presence of the officer who completed it does not violate the confrontation clause of the Sixth Amendment to the United States Constitution. We remand the case to the District Court for further proceedings.
Attorney Ronald A. Sellon