Appeals Court February 3, 2012
Facts: Defendant was convicted of knowingly failing to register as a sex offender. On appeal, he argues the admission of records kept by Sex Offender Registry Board (SORB), in the absence of a SORB witness, is a violation of his right under the Sixth Amendment to confront witnesses against him.
Issue: Is the admission of SORB records, in the absence of testimony from a SORB witness, permissible under the Sixth Amendment?
Yes. The U.S. Supreme Court in Melendez-Diaz v. Massachusetts held that business and public records are generally non-testimonial and admissible absent confrontation if they “have[] been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial.” 129 S. Ct. 2527, 2539-40 (2009). Here, the records are kept in the ordinary course of SORB’s affairs and pursuant to G. L. c. 6, §§ 178C-178Q(1) for administrative purposes and were not created for the “purpose of establishing an essential fact at trial.” See Commonwealth v. Parenteau, 460 Mass. 1, 6-10 (2011). Therefore, the records are non-testimonial and admissible. (LP)
