People v. Nunley

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

FILED JULY 12, 2012

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 144036

TERRY NUNLEY,

Defendant-Appellee,
and

ATTORNEY GENERAL,

Intervenor.

BEFORE THE ENTIRE COURT

ZAHRA, J.
The issue in this case is whether a Michigan Department of State (DOS)1

certificate of mailing is testimonial in nature and thus that its admission, without

1
Although the statutes at issue in this case refer to the Secretary of State, for ease of
reference we generally refer to the DOS given that the Michigan Vehicle Code defines
“Secretary of State” as including agents and employees of the Secretary of State. MCL
257.58.

1
accompanying witness testimony, violates the Confrontation Clause of the state and

federal constitutions. The DOS generated the certificate of mailing to certify that it had

mailed a notice of driver suspension to a group of suspended drivers. The prosecution

seeks to introduce this certificate to prove the notice element of the charged crime,

driving while license revoked or suspended (DWLS), second offense, MCL 257.904(1)

and (3)(b).2 We hold that a DOS certificate of mailing is not testimonial because the

circumstances under which it is generated would not lead an objective witness reasonably

to believe that the statement would be available for use at a later trial. Instead, the

circumstances reflect that the creation of a certificate of mailing, which is necessarily

generated before the commission of any crime, is a function of the legislatively

authorized administrative role of the DOS independent from any investigatory or

prosecutorial purpose. Therefore, the DOS certificate of mailing may be admitted into

evidence absent accompanying witness testimony without violating the Confrontation

Clause. Accordingly, we reverse the judgment of the Court of Appeals and remand this

case to the district court for further proceedings consistent with this opinion.

2
MCL 257.904(1) provides:

A person whose operator’s or chauffeur’s license or registration
certificate has been suspended or revoked and who has been notified as
provided in [MCL 257.212] of that suspension or revocation, whose
application for license has been denied, or who has never applied for a
license, shall not operate a motor vehicle upon a highway or other place
open to the general public or generally accessible to motor vehicles,
including an area designated for the parking of motor vehicles, within this
state.

2
 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 11, 2009, the DOS issued an “ORDER OF ACTION” pursuant to MCL

257.303(2) that revoked defendant Terry Nunley’s license from June 27, 2009, to at least

June 26, 2010, because he had “2 OR MORE SUBSTANCE ABUSE CONVICTIONS

IN 7 YEARS.” The order included a “WARNING,” telling defendant not to drive and an

explanation of the right to appeal. The DOS contends that it sent this order to defendant

by first-class United States mail on June 22, 2009. The DOS contemporaneously

generated a certificate of mailing, which indicated that the DOS had sent defendant the

order. The DOS stored the certificate without sending defendant a copy. The certificate

of mailing, which includes a list of dozens of names of individuals to whom notice was

sent on that particular date, stated:

I CERTIFY THAT I AM EIGHTEEN YEARS OF AGE OR OLDER AND
THAT ON THIS DATE NOTICE OF THE ORIGINAL ORDER OF
SUSPENSION OR RESTRICTED LICENSE WAS GIVEN TO EACH OF
THE PERSONS NAMED BELOW BY FIRST–CLASS UNITED STATES
MAIL AT LANSING, MICHIGAN AS PROVIDED IN SECTION 212 OF
MICHIGAN VEHICLE CODE (MCL 257.212).

DATE 6–22–09 OFFICER OR EMPLOYEE F. BUETER
[handwritten] [typed]

On September 9, 2009, while defendant’s license was still suspended, the police

stopped him for failing to properly secure a load on his truck and issued him a citation for

DWLS. The prosecution subsequently enhanced defendant’s charge to DWLS, second

offense, under MCL 257.904(3)(b) because of defendant’s driving record. The elements

of DWLS require the prosecution to prove (1) that the defendant’s license was revoked or

suspended, (2) that the defendant was notified of the revocation or suspension as

3
provided in MCL 257.212, and (3) that the defendant operated a motor vehicle on a

public highway while his or her license was revoked or suspended.

Before trial, the prosecution moved in limine to admit the certificate of mailing as

proof that defendant had received notice that his license had been revoked—even though

the certificate did not contain the actual signature of the employee listed on it—without

producing the employee listed on the certificate or another DOS employee as a witness.

Defendant objected that the admission of the certificate of mailing under those

circumstances would deny him his right of confrontation under the Sixth Amendment of

the United States Constitution and article 1, § 20 of the Michigan Constitution. The

district court denied the prosecution’s motion, holding that the nature of the certificate

required a signature in order to be sufficient to support notice for a DWLS charge and

that to admit the certificate without testimony would violate defendant’s right to confront

the witnesses against him because there was no other reason to use the document except

in litigation.

The prosecution sought leave to appeal in the circuit court, which, in a written

opinion, affirmed in part and reversed in part the district court’s order. The circuit court

concluded that the district court had erred by ruling that a handwritten signature was

required for the certificate to be valid and effective notice under MCL 257.212. The

circuit court, however, agreed with the district court that to admit the certificate without

testimony would violate defendant’s right of confrontation. The circuit court reasoned:

[T]he [certificate] is not a multipurpose record or one kept by an
agency for its own purposes (that are not principally litigation). The statute
that mandates the sending of the Certificate of Notice is the statute that
defines the criminal offense with which defendant is charged. There has
been no showing that the Certificate is used for anything other than proof of

4
 the notice element of DWLS. The People effectively admit this when they
describe the twofold purpose of the Certificate: “one to state that notice was
given to the defendant, and two, to show the defendant’s license was
suspended.” Unlike the “narrowly circumscribed” class of documents such
as “a clerk’s certificate authenticating an official record—or a copy
thereof—for use as evidence,” . . . this is not a certificate that the document
at issue is an accurate copy of public record . . . .

The legislature apparently intended that the certificate of notice
serve as documentary evidence . . . . That the legislature intended it that
way does not mean it does not violate the confrontation clause—in fact, as
in Melendez-Diaz [v Massachusetts],[3] that circumstance simply establishes
that the declaration is, indeed, testimonial.

The Court of Appeals granted the prosecution’s interlocutory application for leave

to appeal.4 In a split, authored decision, the Court of Appeals majority affirmed the lower

courts’ rulings that the testimonial nature of the certificate meant that its admission would

violate the Confrontation Clause if it were admitted without witness testimony.5 The

majority reasoned that “in light of the fact that notification is an element of the offense,

certainly the certificate of mailing was made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for use at a

later trial.”6 Analogizing the certificate of mailing to the lab analyst’s report offered to

prove an element of the crime in Melendez-Diaz, the majority stated, “Indeed, the

certificate of mailing here is being offered to prove an element of the offense: the

3
Melendez-Diaz v Massachusetts, 557 US 305; 129 S Ct 2527; 174 L Ed 2d 314 (2009).
4
People v Nunley, unpublished order of the Court of Appeals, entered March 1, 2011
(Docket No. 302181).
5
People v Nunley, 294 Mich App 274; ___ NW2d ___(2011).
6
Id. at 285 (citations and quotation marks omitted).

5
notification required by the plain language of MCL 257.904(1).”7 Thus, the certificate

was “functionally identical to live, in-court testimony, doing precisely what a witness

does on direct examination.”8

The majority rejected the prosecution’s argument that the certificate was merely a

clerk’s certification of a record, stating that “[t]he critical distinction is that the author of

the certificate of mailing, here F. Bueter, is providing more than mere authentication of

documents; he is actually attesting to a required element of the charge.”9 The majority

also rejected the prosecution’s argument that the certificate was not created solely for

litigation regardless of whether it could be considered a business record because no

statute required maintenance of the certificate and “the [prosecution] concede[d] that one

purpose of the certificate of mailing is ‘the production of evidence for use at trial . . . .’”10

Judge SAAD, in dissent, concluded that the certificate is not testimonial because it

was created before a crime was even committed and the employee creating the certificate

was fulfilling an administrative duty.11 Judge SAAD believed it was irrelevant that the

certificate was used to prove an element of the crime, stating:

While the majority is certainly correct that the certificate of mailing
is an essential piece of evidence in proving defendant’s guilt, it does not
follow that this renders the certificate testimonial. As noted, the majority’s

7
Id.
8
Id. at 294 (citation and quotation marks omitted).
9
Id. at 286-287.
10
Id. at 291 (citation omitted).
11
Id. at 298-299 (SAAD, P.J., dissenting).

6
 analysis also ignores the context in which the evidence is made. At the
time the certificate of mailing was created, no crime had taken place, nor
was there an ongoing criminal investigation involving the defendant.
Therefore, it was impossible for F. Bueter, or an “objective witness,”
“reasonably to believe” that the certificate of mailing, at the time of its
creation, “would be available for use at a later trial.” Crawford [v
Washington, 541 US 36, 52; 124 S Ct 1354; 158 L Ed 2d 177 (2004)]
(citation and quotation marks eliminated).

. . . It strains credulity to suggest that the certificate was “made
under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial,”
because Nunley had not committed a crime, and F. Bueter, when he
certified the mailing, had no reason to expect that Nunley would commit a
crime. Crawford, 541 US at 52. Bueter, or any other state employees who
create certificates of mailing, “cannot be considered witnesses” against
Nunley “when no prosecution existed at the time of data entry.” [State v]
Shipley, 757 NW2d [228, 237 (Iowa, 2008)]. Bueter would likely have
suspected that the certificate of mailing was just that: a certificate of notice,
certifying a warning to encourage defendant to comply with the law, not a
piece of evidence for use in a hypothetical trial. As such, the certificate of
mailing was “created under conditions far removed from the inquisitorial
investigative function—the primary evil that Crawford was designed to
avoid.” Id. at 238. Therefore, on the basis of the context in which it was
created, the certificate of mailing is nontestimonial.[12]

The prosecution filed an application for leave to appeal in this Court. The

Attorney General moved to intervene and for immediate consideration, as well as to stay

the effect of the Court of Appeals’ opinion and enlarge the record on appeal.

With respect to the motion to enlarge the record, which we ultimately granted, the

Attorney General sought to introduce the affidavit of the DOS Driver and Vehicle

Records Division Director, Fred Bueter, whose name, “F. Bueter,” was printed on the

certificate of mailing concerning defendant. In his affidavit, Bueter describes his

12
Id. at 302-304.

7
duties—including ensuring the integrity of motor vehicle records—and facts related to

the creation of certificates of mailing. Bueter averred that the DOS sends out numerous

types of notices in compliance with MCL 257.212, the vast majority of which are

computer generated. According to Bueter, courts across Michigan notify DOS

electronically of driving-record activity related to the withdrawal of driving privileges.

An internal computer program at DOS receives the information and updates the central

driving record of the driver and then generates a notice to the driver. In some instances,

the notice is generated and the certificate of mailing is included on the notice itself.13 A

copy is then maintained at the DOS and another copy is mailed to the driver. When

mandatory suspension or revocation is involved, as in this case, the process is mostly the

same. The difference, however, is that a certificate of mailing is created separately from

the notice of suspension or revocation and only the notice (the so-called “Order of

Action”), and not the certificate, is sent to the driver. The certificate of mailing is printed

once each week and lists hundreds of drivers—defendant’s name, for example, is

included on the eleventh page of the certificate. A DOS staff member manually fills in

the date on the certificate. Bueter himself does not fill in the date, and despite

understanding the process of how the notices and certificates are created and shipped, he

13
In the examples Bueter provides, the combined notices and certificates of mailing are
sent to drivers who have failed to pay a traffic fine or the assessment of statutory driver
responsibility fees, resulting in the suspension of driving privileges. See MCL
257.321a(2) and MCL 257.732a. These types of violations alone cause the DOS to
generate approximately 800,000 combined notices and certificates of mailing a year.
With regard to mandatory suspensions and revocations, as in the present case, the DOS
generates approximately 50,000 notices a year.

8
lacked any personal knowledge regarding any particular notice of license suspension or

revocation or regarding any particular certificate of mailing.

We granted the Attorney General’s motions for immediate consideration, to

intervene, and to stay the precedential effect of the Court of Appeals’ opinion.14

Subsequently, we granted the application for leave to appeal, directing the parties to

address

whether the Court of Appeals erred when it held that the Department of
State certificate of mailing is testimonial in nature and thus that its
admission, without accompanying witness testimony, would violate the
Confrontation Clause. See Crawford v Washington, 541 US 36; 124 S Ct
1354; 158 L Ed 2d 177 (2004); Melendez-Diaz v Massachusetts, 557 US
305; 129 S Ct 2527; 174 L Ed 2d 314 (2009); and Bullcoming v New
Mexico, 564 US ___; 131 S Ct 2705; 180 L Ed 2d 610 (2011).[15]

II. STANDARD OF REVIEW

Whether the admission of certificates of mailing would violate a defendant’s Sixth

Amendment right of confrontation is a question of constitutional law that this Court

reviews de novo.16

III. ANALYSIS

A. CONFRONTATION CLAUSE JURISPRUDENCE

The Confrontation Clause of the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

14
People v Nunley, 490 Mich 922 (2011).
15
People v Nunley, 490 Mich 965 (2011).
16
People v Jackson, 483 Mich 271, 277; 769 NW2d 630 (2009).

9
witnesses against him . . . .”17 The state of Michigan has at all times “afforded a criminal

defendant the right to ‘be confronted with the witnesses against him,’ [by] adopting this

language of the federal Confrontation Clause verbatim in every one of our state

constitutions.”18

The Confrontation Clause is “primarily a functional right” in which the right to

confront and cross-examine witnesses is aimed at truth-seeking and promoting reliability

in criminal trials.19 Functioning in this manner, “the principal evil at which the

Confrontation Clause was directed was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence against the accused.”20

The specific protections the Confrontation Clause provides apply “only to

statements used as substantive evidence.”21 In particular, one of the core protections of

the Confrontation Clause concerns hearsay evidence that is “testimonial” in nature.22 The

United States Supreme Court has held that the introduction of out-of-court testimonial

statements violates the Confrontation Clause; thus, out-of-court testimonial statements

17
US Const, Am VI.
18
People v Fackelman, 489 Mich 515, 525; 802 NW2d 552 (2011), citing Const 1839, art
1, § 10, Const 1850, art 6, § 28, Const 1908, art 2, § 19, and Const 1963, art 1, § 20.
19
Fackelman, 489 Mich at 528-529.
20
Crawford, 541 US at 50.
21
Fackelman, 489 Mich at 528.
22
Crawford, 541 US at 51.

10
are inadmissible unless the declarant appears at trial or the defendant has had a previous

opportunity to cross-examine the declarant.23

Addressing what constitutes a testimonial statement, the United States Supreme

Court explained in Crawford that “testimony” is a “‘solemn declaration or affirmation

made for the purpose of establishing or proving some fact.’ An accuser who makes a

formal statement to government officers bears testimony in a sense that a person who

makes a casual remark to an acquaintance does not.”24 The Court refrained from giving

one particular definition of what evidence will constitute a “testimonial statement,” but

did provide the following guidance:

Various formulations of this core class of “testimonial” statements
exist: “ex parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially,”
“extrajudicial statements . . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or confessions,”
“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[.]” These formulations all share a common
nucleus and then define the [Confrontation] Clause’s coverage at various
levels of abstraction around it. Regardless of the precise articulation, some
statements qualify under any definition—for example, ex parte testimony at
a preliminary hearing.[25]

In the case at hand, the prosecution moved for the admission of the certificate of

mailing without accompanying witness testimony in order to prove the truth of the matter

23
Id. at 53-54.
24
Id. at 51 (citations omitted).
25
Id. at 51-52 (citations omitted; first alteration in original).

11
asserted therein: that defendant was sent notice regarding the revocation of his driver’s

license by first-class United States mail as provided in MCL 257.212. Thus, admitting

the certificate of mailing would constitute substantive hearsay intended to prove the

notice element of DWLS.26 Because the certificate of mailing is properly characterized

as substantive hearsay, defendant is entitled to the protections of the Confrontation

Clause if the certificate of mailing is indeed testimonial. Although the United States

Supreme Court has not specifically addressed whether a certificate of mailing like the one

at issue here is testimonial, we will review some of its more recent post-Crawford

decisions addressing this question in other contexts, as well as our own recent decision in

People v Fackelman.27

In Davis v Washington, the United States Supreme Court considered whether

statements made to law enforcement personnel during a 911 call or at a crime scene are

testimonial.28 The Court recognized that Crawford had identified “‘[s]tatements taken by

police officers in the course of interrogations’” as among the possible formulations of

what constitutes a testimonial statement.29 The Court then addressed in what instances

police interrogations are testimonial, holding that

26
See MRE 801(c). As a result, even if admitting the certificate of mailing absent
accompanying testimony does not violate the Confrontation Clause, the trial court would
still need to conclude that it qualifies under a hearsay exception within our rules of
evidence for it to be properly admitted. See MRE 802.
27
Fackleman, 489 Mich 515.
28
Davis v Washington, 547 US 813, 817; 126 S Ct 2266; 165 L Ed 2d 224 (2006).
29
Id. at 822, quoting Crawford, 541 US at 52 (alteration in original).

12
 [s]tatements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.[30]

One of the circumstances the Court examined when making this objective determination

in Davis was the formality of the statement.31 Ultimately, the Court ruled that the

declarant’s statements identifying her assailant during a 911 call were not testimonial.32

However, in the companion case of Hammon v Indiana,33 the Court ruled that the

Hammon declarant’s statements in response to police questioning at the crime scene were

testimonial.34

In Melendez-Diaz, the United States Supreme Court considered whether

“certificates of analysis” were testimonial when they reported the results of a forensic

analysis showing that material seized by the police and connected to the defendant was

cocaine.35 The Court characterized the certificates as “quite plainly affidavits,” which

fall within the core class of testimonial statements and are defined as “‘declaration[s] of

30
Davis, 547 US at 822.
31
See id. at 827, 830.
32
Id. at 829.
33
Hammon was resolved together with Davis at 547 US 813; 126 S Ct 2266; 165 L Ed 2d
224 (2006).
34
Id. at 830.
35
Melendez-Diaz, 557 US at ___; 129 S Ct at 2530.

13
facts written down and sworn to by the declarant before an officer authorized to

administer oaths” and “are incontrovertibly a solemn declaration or affirmation made for

the purpose of establishing or proving some fact.”36 Given that the fact at issue was

whether the substance found in the defendant’s possession was, as the prosecution

claimed, cocaine, then this was the testimony that the analysts would have been expected

to provide if called as witnesses at trial.37 The certificates were thus “functionally

identical to live, in-court testimony, doing ‘precisely what a witness does on direct

examination.’”38

In addition, the Court reasoned that the certificates 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,” given that “under Massachusetts law

the sole purpose of the [certificates] was to provide prima facie evidence of the

composition, quality, and the net weight of the analyzed substance.”39 Further, “the

analysts were aware of the [certificates’] evidentiary purpose, since that purpose—as

stated in the relevant state-law provision—was reprinted on the [certificates]

themselves.”40

36
Id. at ___; 129 S Ct at 2532 (citations and quotation marks omitted; alteration in
original).
37
Id. at ___; 129 S Ct at 2532.
38
Id. at ___; 129 S Ct at 2532, quoting Davis, 547 US at 830.
39
Melendez-Diaz, 557 US at ___; 129 S Ct at 2532 (citations and quotation marks
omitted).
40
Id. at ___; 129 S Ct at 2532.

14
 In Bullcoming v New Mexico, the United States Supreme Court considered

whether “the Confrontation Clause permits the prosecution to introduce a forensic

laboratory report containing a testimonial certification—made for the purpose of proving

a particular fact—through the in-court testimony of a scientist who did not sign the

certification or perform or observe the test reported in the certification.”41 The Court

rejected the argument that the testimony of a “surrogate” expert was a constitutionally

permissible substitute for the testimony of the analyst who had actually conducted the

test.42 The Court also rejected the argument that the report was not testimonial,

analogizing it to the certificates of analysis in Melendez-Diaz and pointing out that

“formalities attending the ‘report of blood alcohol analysis’ are more than adequate to

qualify [the analyst’s] assertions as testimonial” and that “[t]he absence of notarization

does not remove his certification from Confrontation Clause governance.”43 Further,

Justice Ginsburg, joined by Justice Scalia, rejected the argument that this “unbending

application of the Confrontation Clause . . . would impose an undue burden on the

prosecution,” reiterating that the Confrontation Clause “‘may not [be] disregard[ed] at . . .

our convenience.’”44

41
Bullcoming, 564 US at ___; 131 S Ct at 2710.
42
Id. at ___; 131 S Ct at 2710, 2713.
43
Id. at ___; 131 S Ct at 2717.
44
Id. at ___; 131 S Ct at 2717-2718 (citation omitted; alteration in original). Only Justice
Scalia joined part IV of Justice Ginsburg’s opinion, which otherwise constituted the
opinion of the Court.

15
 Most recently, the United States Supreme Court issued a plurality opinion in

Williams v Illinois that addressed whether portions of the expert testimony from a

forensic specialist violated the defendant’s right of confrontation.45 Specifically, the

expert witness testified that a DNA profile produced by an outside laboratory using

semen from vaginal swabs from the victim matched a DNA profile produced by the state

police lab using a sample of the defendant’s blood.46 The defendant argued that any

testimony from the expert implicating what had taken place at the outside laboratory

violated the Confrontation Clause.47

The lead opinion concluded that the expert’s testimony concerning the outside

laboratory did not run afoul of the Confrontation Clause for two reasons.48 First, the out-

of-court statements were related by the expert only for the purpose of explaining the

assumptions on which the expert’s opinion relied. They were not offered for the truth of

the matter asserted.49 Second, even if the report that the outside laboratory produced had

been admitted into evidence, it was not a testimonial document.50

With respect to the second reason, the lead opinion emphasized that the report

“was not prepared for the primary purpose of accusing a targeted individual,” which

45
Williams v Illinois, 567 US ___; 132 S Ct 2221; ___ L Ed 2d ___ (2012).
46
Id. at ___; 132 S Ct at 2227 (opinion by Alito, J.).
47
Id. at ___; 132 S Ct at 2227.
48
Id. at ___; 132 S Ct at 2228.
49
Id. at ___; 132 S Ct at 2228.
50
Id. at ___; 132 S Ct at 2228.

16
distinguished the report from the evidence at issue in Crawford and its progeny.51

Rather, the lead opinion reasoned that, viewed objectively, the primary purpose of the

report was to catch the perpetrator who was still at large and that no one at the outside

laboratory could have known that the DNA profile would implicate the defendant.52

Thus, the lead opinion viewed the report as “very different from the sort of extrajudicial

statements, such as affidavits, depositions, prior testimony, and confessions, that the

Confrontation Clause was originally understood to reach.”53

In a concurring opinion, Justice Thomas disagreed with the lead opinion’s two

rationales.54 He nonetheless agreed that the challenged testimony did not violate the

Confrontation Clause because the report “lacked the requisite ‘formality and solemnity’

to be considered ‘testimonial’. . . .”55 The dissenting opinion expressed agreement with

Justice Thomas that the statements were offered for the truth of the matter asserted.56

The dissent, however, concluded that the out-of-court statements were indeed testimonial

under Melendez-Diaz and Bullcoming, noting that although it is relevant to inquire

whether the primary purpose of the statement was to establish “past events potentially

51
Id. at ___; 132 S Ct at 2242-2243.
52
Id. at ___; 132 S Ct at 2243-2244.
53
Id. at ___; 132 S Ct at 2228.
54
Id. at ___; 132 S Ct at 2255 (Thomas, J., concurring).
55
Id. at ___; 132 S Ct at 2255 (citation and quotation marks omitted).
56
Id. at ___; 132 S Ct at 2265, 2269-2270 (Kagan, J., dissenting); id. at ___; 132 S Ct at
2256 (Thomas, J., concurring).

17
relevant to later criminal prosecution,” Crawford and its progeny do not suggest that “the

statement must be meant to accuse a previously identified individual[.]”57

Lastly, in Fackelman, we considered whether evidence from a psychiatrist’s report

violated the defendant’s right of confrontation.58 This Court concluded that the evidence

from the report fell within the core class of testimonial statements that are subject to the

Confrontation Clause.59 This Court reasoned that the report memorialized the

“defendant’s medical history and the events that led to his admittance to the hospital,

provided the all-important diagnosis, and outlined a plan for treatment.”60 Thus, this

report constituted the psychiatrist’s testimony regarding the defendant’s mental illness.61

Further, this Court opined that the statements in the report 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,” given that

(1) defendant’s admittance to the hospital was arranged by lawyers, (2)
defendant was arrested en route to the hospital, (3) the report noted that the
Monroe County Sheriff requested notification before defendant’s discharge,
(4) defendant referred to a trial and to a gun in his responses related in the
report, and, perhaps most significantly, (5) at its very beginning and ending,
in which its overall context is most clearly identified, the report expressly

57
Id. at ___; 132 S Ct at 2265-2267, 2273-2274 (Kagan, J., dissenting).
58
Fackelman, 489 Mich at 518-519.
59
Id. at 532.
60
Id.
61
Id.

18
 focused on defendant’s alleged crime and the charges pending against
him.[62]

Accordingly, this Court concluded that the admission into evidence of the psychiatrist’s

diagnosis—an out-of-court, testimonial statement offered for its truth—violated the

defendant’s constitutional right to be confronted with the witnesses against him.63

B. APPLICATION

The Court of Appeals majority relied largely on Melendez-Diaz to conclude that

the certificate of mailing was testimonial in nature. In so doing, the majority stated that

the “sole purpose of the preparation of the certificate of mailing was to provide proof of

notice as required by MCL 257.212 . . . .” 64 And the majority reasoned that “in light of

the fact that notification is an element of the offense, certainly the certificate of mailing

was “‘“made under circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial.”’”65 We disagree.

To begin, we do not believe that the certificate of mailing here is necessarily akin

to the types of extrajudicial statements—such as affidavits, depositions, prior testimony,

and confessions—that Crawford included in the core class of testimonial statements.66

The certificate of mailing memorializes that the DOS on a particular date sent the “Order

62
Id. at 532-533.
63
Id. at 534.
64
Nunley, 294 Mich App at 289.
65
Nunley, 294 Mich App at 285, quoting Melendez-Diaz, 557 US at ___; 129 S Ct at
2532, quoting Crawford, 541 US at 52.
66
See Crawford, 541 US at 51-52.

19
of Action” to defendant by first-class United States mail, notifying him that his driver’s

license had been revoked. Thus, like an affidavit, it certifies a fact in question.67

However, this fact alone does not render the certificate a formal affidavit that is

necessarily testimonial for purposes of the Confrontation Clause.

Instead, we believe that the circumstances under which the certificate was

generated show that it is a nontestimonial business record created primarily for an

administrative reason rather than a testimonial affidavit or other record created for a

prosecutorial or investigative reason. As set forth earlier in this opinion, under Crawford

and its progeny, courts must consider the circumstances under which the evidence in

question came about to determine whether it is testimonial.68 The certificate here is a

routine, objective cataloging of an unambiguous factual matter, documenting that the

DOS has undertaken its statutorily authorized bureaucratic responsibilities. Thus, the

certificate is created for an administrative business reason and kept in the regular course

of the DOS’s operations in a way that is properly within the bureaucratic purview of a

67
See Melendez-Diaz, 557 US at ___; 129 S Ct at 2532.
68
Id. at ___; 129 S Ct at 2539-2540. We note that how one characterizes the certificate is
not dispositive. Even if we characterized the certificate of mailing as an affidavit, it
would not render it de facto testimonial. Instead, just as all statements made in response
to police interrogations are not de facto testimonial, see Davis, 547 US at 822, not all
documents akin to affidavits are de facto testimonial, see, e.g., Williams, 567 US at ___;
132 S Ct at 2242-2244 (opinion by Alito, J.); id. at ___; 132 S Ct at 2255 (Thomas, J.,
concurring) (a majority of the Court concluding that a lab technician’s report producing a
person’s DNA profile was not testimonial given the circumstances in which the report
was created and its lack of formality). Further, even if the certificate constitutes a
business record, when such a document is “prepared specifically for use at . . . trial,” it is
generally testimonial and subject to confrontation. Melendez-Diaz, 557 US at ___; 129 S
Ct at 2540.

20
governmental agency. Our analysis of the nature and purpose of the certificate, as

informed by the circumstances under which it was created, leads us to the conclusion that

it is nontestimonial for the purposes of the Confrontation Clause.

Perhaps most significant to this analysis is the fact that the DOS certificates of

mailing are necessarily created before the commission of any crime that they may later be

used to help prove. This is because receipt of notice is an element of the crime of DWLS,

and the certificate of mailing is created contemporaneously with the notice itself.

Accordingly, a person, even one whose license has been suspended, cannot legally

commit the crime of DWLS before he or she receives notice. Given this significant

distinguishing fact and the relevant statutes, we conclude that the certificates of mailing

are a result of the legislatively authorized administrative function of the DOS, which is

independent of any investigatory or prosecutorial purpose.

Specifically, MCL 257.212 states:

If the secretary of state is authorized or required to give notice under
this act or other law regulating the operation of a vehicle, unless a different
method of giving notice is otherwise expressly prescribed, notice shall be
given either by personal delivery to the person to be notified or by first-
class United States mail . . . .

MCL 257.904(1), in turn, generally recognizes that the DOS will provide service of

notice to persons who have had their driver’s licenses suspended or revoked. Further, it

is without question that the DOS has the authority to notify drivers when their licenses

are suspended or revoked as inherent within its duties to administer and regulate this

21
state’s driver’s licenses. Because of defendant’s two alcohol related convictions,69 the

DOS was therefore “authorized,” meaning “empower[ed]” and “give[n] a right or

authority”70 to send defendant notice that his driver’s license had been revoked.

Once the DOS sent defendant the required notice regarding the revocation of his

license, MCL 257.212 mandated that the notice be given in the manner previously

described, i.e., through personal delivery or by first-class United States mail. MCL

257.212 further provides that the giving of notice by mail is “complete upon the

expiration of 5 days after mailing the notice.” The statute further provides that “[p]roof

of the giving of notice in either manner may be made by the certificate of a person 18

years of age or older, naming the person to whom notice was given and specifying the

time, place, and manner of the giving of notice.”71 Thus, the primary purpose of a

certificate of mailing, at the time that it is created, is to establish “proof of the giving of

notice” in accordance with the DOS’s statutorily authorized bureaucratic responsibilities.

Accordingly, because the certificate of mailing was necessarily generated before

the charged crime could be committed, it was not made under circumstances that would

lead an objective witness reasonably to believe that it would be available for use at a later

trial. At the time the certificate was created, there was no expectation that defendant

would violate the law by driving with a revoked driver’s license and therefore no

69
MCL 257.303(2)(c) provides that the Secretary of State “shall revoke” the license of a
driver who has two alcohol-related driving convictions within seven years and shall not
issue a new license for at least one year under MCL 257.303(4).
70
Black’s Law Dictionary (6th ed).
71
MCL 257.212.

22
indication that a later trial would even occur. Thus, the Court of Appeals majority

wrongly assumed that “the certificate of mailing is testimonial because it will be used for

the purpose of proving or establishing some fact at trial.”72 Instead, as Judge SAAD noted

in his dissent, it does not follow that simply because a statement relates to an element of

the crime it must be testimonial.73

Unlike Crawford or its progeny, the evidence at issue in this case was not prepared

as a result of a criminal investigation or created after the commission of the crime.

Rather, the DOS generates certificates of mailing contemporaneously with the notices

that are mailed to drivers whose licenses have been suspended or revoked. Again, under

no circumstances could the drivers whose licenses have been suspended or revoked be

charged with DWLS before having received the notice of the suspension or revocation.

In our view, the distinction makes “all the difference in the world”74 because the

certificate was not and could not have been created in anticipation of a prosecution

because no crime had yet occurred. Because “[c]riminal activity, by its deviant nature, is

normally unforeseeable,”75 and persons “may reasonably proceed upon the assumption

that others will obey the criminal law,”76 we cannot assume that the certificate of mailing

72
Nunley, 294 Mich App at 291 (emphasis added).
73
Id. at 298 (SAAD, P.J., dissenting).
74
Melendez-Diaz, 557 US at ___; 129 S Ct at 2539.
75
Papadimas v Mykonos Lounge, 176 Mich App 40, 46-47; 439 NW2d 280 (1989),
citing Prosser & Keaton, Torts (5th ed), § 33, p 201.
76
Prosser & Keaton, Torts (5th ed), § 33, p 201.

23
in regard to defendant or any other person would be used at a later trial. In other words,

the certificates of mailing may be comfortably classified as business records “created for

the administration of an entity’s affairs and not for the purpose of establishing or proving

some fact at trial[.]”77 Accordingly, we conclude that the context and circumstances of

the creation of the certificate of mailing reflect that it is nontestimonial.

C. ADDITIONAL SUPPORTING AUTHORITY

Caselaw from the other two states that have reviewed this precise question

provides additional support for our conclusion that the certification of mailing at issue is

not testimonial. In State v Murphy, the Maine Supreme Judicial Court considered a

certificate-notice system, seemingly identical to the one our DOS uses, in which notice

was also a necessary element of the charge of operating while the person’s license was

suspended or revoked under the laws of Maine.78 Examining Crawford and Melendez-

77
Melendez-Diaz, 557 US at ___; 129 S Ct at 2539-2540. We note that our analysis is
consistent with the reasoning of both the lead opinion and the dissenting opinion from the
United States Supreme Court’s recent plurality decision in Williams. Consistently with
the reasoning of the lead opinion, Williams, 567 US at ___; 132 S Ct at 2242-2244, the
primary purpose of the certificate of mailing was not to accuse a targeted individual of
engaging in criminal conduct. Instead, because the certificate is necessarily generated
before the commission of any crime, there is no one to accuse of criminal conduct.
Further, consistently with the reasoning of the dissenting opinion, id. at ___; 132 S Ct at
2273-2274 (Kagan, J., dissenting), the primary purpose of the certificate of mailing was
not to produce evidence for a later criminal prosecution. Although the dissenting opinion
differed with the lead opinion in its view that “it makes not a whit of difference whether,
at the time of the [creation of the evidence], the police already have a suspect,” id. at ___;
132 S Ct at 2274, the circumstances here would not lead an objective witness to
reasonably believe that the certificate of mailing would be available for use at a later trial
because no crime had been committed at the time the certificate was generated and no
investigatory procedure had begun.
78
State v Murphy, 2010 ME 28, ¶¶ 1-5; 991 A2d 35, 35-37 (Me, 2010).

24
Diaz, the court stated that “[r]ead expansively, Melendez-Diaz might be construed as

requiring us to conclude that [the certificate] is testimonial . . . , [but] we are not

persuaded to embrace that construction.” 79 The court set forth several reasons for its

holding. First, the court stated that the facts in Melendez-Diaz did not involve the type of

certificate at issue in Murphy and, thus, Melendez-Diaz did not control the outcome.80

Second, the court reasoned that unlike the certificates of analysis in Melendez-Diaz,

which “substituted for live, in-court expert testimony prepared in an effort to secure the

defendant’s criminal conviction,” the certificates at issue in Murphy did “not involve

expert analysis or opinion.”81 Instead, the certificates merely reported neutral

information from the Maine Secretary of State, who was charged with the custody of that

information.82 Moreover, the certificates did not “contain ‘testimony’ of the Secretary of

State’s personal knowledge that the required notice of suspension was mailed; rather, the

certificate attests to his or her knowledge of what routinely-maintained public records

indicate.”83 Third, the court stated that “neither the certificate nor the records to which it

refers are primarily maintained and employed for purposes of criminal prosecution.

Identical certificates are routinely prepared for nonprosecutorial purposes, such as

79
Id. at ¶ 19; 991 A2d at 41-42.
80
Id. at ¶ 20; 991 A2d at 42.
81
Id. at ¶ 21; 991 A2d at 42.
82
Id.
83
Id.

25
administrative motor vehicle proceedings and insurance-related inquiries.”84 Lastly,

unlike the certificates of analysis in Melendez-Diaz, “[b]ecause neutral, bureaucratic

information from routinely maintained public records is not obtained by use of

specialized methodology, there is little, if any, practical benefit to applying the crucible

of cross-examination against those who maintain the information.”85

The Massachusetts Supreme Judicial Court also ruled on this issue in

Commonwealth v Parenteau.86 In Parenteau, the request by the police or the prosecution

for the certificates attesting to the mailing of the notice at issue occurred after defendant

had committed the crime.87 On those facts, the court held that “the certificate was created

exclusively for trial so the Commonwealth could prove a fact necessary to convict him”

and thus it was testimonial.88 The court, however, stated that like the notice itself, if the

certificate had been created at the time that the notice was sent, it would have been a

business record and thus nontestimonial, reasoning:

[T]here is no evidence of the existence of a contemporaneous
business record showing that the notice was mailed on that date. If such a
record had been created at the time the notice was mailed and preserved by
the registry as part of the administration of its regular business affairs, then
it would have been admissible at trial. That would have been the correct
procedure for the admission of a business record from the registry. . . .
[However, the actual certificate used here] was not created as part of the

84
Id. at ¶ 22; 991 A2d at 42.
85
Id. at ¶ 24; 991 A2d at 43.
86
Commonwealth v Parenteau, 460 Mass 1; 948 NE2d 883 (2011).
87
Id. at 8.
88
Id. at 5.

26
 administration of the registry’s regular business affairs, but for the purpose
of establishing an essential fact at trial. Accordingly, the registry certificate
did not constitute a nontestimonial business record.[89]

Both Murphy and Parenteau provide support for our conclusion that the certificate

of mailing here is not testimonial. Significant in both cases were the circumstances under

which the certificates were created. The timing of the certificates’ creation, who

requested that creation or how they were generated, and the information therein all

informed the decisions in those cases. In Murphy, the circumstances showed that the

creation of the certificate was for purposes other than prosecution, while in Parenteau,

the creation of the certificate was made at the request of law enforcement after the crime

had been committed. In the instant case, the certificate of mailing was necessarily

created before the crime was committed as part of the legislatively permitted

administrative function of the DOS and was akin to the neutral records largely

maintained as a part of a bureaucratic purpose in Murphy. Thus, the certificate of mailing

here is like the hypothetical business record contemplated in Parenteau, but the opposite

of the actual certificate at issue in Parenteau, which “was not created as part of the

administration of the registry’s regular business affairs, but for the purpose of

establishing an essential fact at trial.”90

Moreover, analogous federal cases addressing illegal reentry into the United States

provide additional support for our conclusion that the certificate of mailing is not

testimonial. Federal law prohibits the reentry of an alien after the alien has been

89
Id. at 10.
90
Id.

27
previously deported.91 To prove an essential element of this crime, the prosecution will

introduce into evidence a warrant of deportation. In this document, an immigration

official attests that he or she witnessed the defendant’s previous deportation.

Subsequently, if the defendant is found within the United States and is prosecuted for

illegal reentry, federal courts have consistently ruled that the warrant is admissible

without accompanying testimony to prove that the defendant had been deported.92

Concluding that a warrant of deportation is not testimonial, the United States Court of

Appeals for the Eleventh Circuit stated:

We are persuaded that a warrant of deportation does not implicate
adversarial concerns in the same way or to the same degree as testimonial
evidence. A warrant of deportation is recorded routinely and not in
preparation for a criminal trial. It records facts about where, when, and
how a deportee left the country. Because a warrant of deportation does not
raise the concerns regarding testimonial evidence stated in Crawford, we
conclude that a warrant of deportation is non-testimonial and therefore is
not subject to confrontation.[93]

This conclusion is representative of the manner in which the United States Courts of

Appeals for other circuits have reasoned.

We find this analogous line of federal decisions persuasive. Like the certificate of

mailing certifies that defendant had been sent notice of the suspension of his license, the

91
See 8 USC 1326.
92
See United States v Cantellano, 430 F3d 1142 (CA 11, 2005); United States v Torres-
Villalobos, 487 F3d 607 (CA 8, 2007); United States v Bahena-Cardenas, 411 F3d 1067,
1074-1075 (CA 9, 2005); United States v Valdez-Maltos, 443 F3d 910, 911 (CA 5, 2006);
United States v Garcia, 452 F3d 36 (CA 1, 2006).
93
Cantellano, 430 F3d at 1145.

28
warrant of deportation is a warrant certifying that the defendant had been deported. In

both instances, these documents were recorded routinely before any criminal activity took

place. And neither implicates “adversarial concerns in the same way or to the same

degree as testimonial evidence,” because they are “recorded routinely and not in

preparation for a criminal trial.”94 Moreover, just as the warrants of deportation are

created under “circumstances objectively indicating that their primary purpose is to

maintain records concerning the movements of aliens and to ensure compliance with

orders of deportation, not to prove facts for use in future criminal prosecutions,”95 the

certificates of mailing are created under circumstances objectively indicating a purpose to

ensure the maintenance of records indicating that the DOS has carried out its authorized

function of notifying persons convicted of certain driving offenses that their driver’s

licenses have been suspended.

IV. CONCLUSION

Because we conclude that the certificate of mailing at issue is not testimonial, its

admission into evidence without accompanying testimony will not violate the

94
Id.
95
Torres-Villalobos, 487 F3d at 613.

29
Confrontation Clause. Accordingly, we reverse the judgment of the Court of Appeals

and remand this case to the district court for further proceedings consistent with this

opinion.

Brian K. Zahra
Robert P. Young, Jr.
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Mary Beth Kelly

HATHAWAY, J. I concur in the result only.

Diane M. Hathaway

30