If He Can Read What They Wrote

[Note: Subsequent to this post the Supreme Court granted review.  See, "Review Granted in People v. Gray," posted Feb. 23, 2012.]

A doctor may testify about treatment performed by other doctors as reflected in medical records prepared in the ordinary course of a hospital's business without violating a defendant's rights under the Confrontation Clause of the United States Constitution, according to the Third District Court of Appeal in People v. Davis (Oct. 12, 2011, C061536), __ Cal.App.4th __ [2011 DJDAR 15195].

Defendant was charged with assault with a deadly weapon and mayhem after he put out a fellow inmate's eye with a toilet brush.  At trial, the People introduced the medical records from the hospital where the victim was treated and a physician testified as to his treatment and that of other doctors as reflected in the records.  Defendant contended that the records were "testimonial" out-of-court statements and that he was denied his right to confront all of the preparers of the records.

Since the records were made in the ordinary course of the hospital's business of treating patients and were created for medically-related purposes, and not for litigation, they were not testimonial under Melendez-Diaz v. Massachusetts (2009) __ U.S. __ , 129 Sup.Ct. 2527, 174 L.Ed.2d 314, said the court.  They were not affidavits and were not generated to create an out-of-court substitute for trial testimony.  Whether or not they 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 is irrelevant, said the court, because this is not the test for determining if a statement is testimonial.  The reports lacked the solemnity or formality associated with testimonial statements and were properly admitted.