Appeals Court (December 23, 2005)

Medical records which include opinion and discretionary statements, kept for the purpose of diagnosis and treatment and made shortly after admission do not implicate the confrontation clause.

The defendant was convicted with operating under the influence of alcohol. During the trial the prosecutor introduced the defendant's medical records under the hearsay exception G.L. 233, §79 which provides in part, "records kept by hospitals [as required by statute] … may be admitted … as evidence in the court of the commonwealth so far as such records relate to the treatment and medical history of such cases…." The defendant appealed his conviction claiming the medical records were erroneously admitted in light of Crawford v. Washington, 541 U.S. 35 (2004) because they contain statements that are testimonial thus rendering G.L. 233, §79 unconstitutional. The Appeals Court disagreed.

In making a determination as to the admissibility of the medical records the court followed the test set forth in Commonwealth v. Gonsalves, 445 Mass. 1, 13 (2005) to determine whether or not a statement is testimonial. The court concluded that the statements the defendant challenges ["positive for ETOH," " intoxicated," and "odor of ETOH"] were not testimonial per se or testimonial in fact since they were made shortly after his admission in order to determine appropriate treatment and that nothing in the medical records suggests the statements were made in anticipation of their use in the investigation and prosecution of a crime.