Appeals Court (February 28, 2011)

A properly completed and returned G.L. c. 209A return of service is admissible under the official or public records exception to the hearsay rule, and its admission at trial without the presence of the officer who completed it does not violate the confrontation clause of the Sixth Amendment.

The defendant was the subject of a G.L. c. 209A restraining order issued on December 8, 2006. The defendant's address, as reflected in the order, was in Princeton, New Jersey. On the back of the order was a preprinted return of service that was completed and signed on December 10, 2006, by a New Jersey police officer. The officer certified that he had served a copy of the order on the defendant by delivering it to him in hand. The completed return of service was then transmitted to the clerk of the court as required by the order. The defendant violated the order on December 18, 2006, and a criminal complaint issued two days later.

In order to prove a violation of G.L. c. 209A, § 7, the Commonwealth must prove 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. The Commonwealth intended to use the return of service as evidence to prove that the defendant knew of the order. The defendant argued that the return is inadmissible hearsay and that its introduction, absent an opportunity to cross-examine the New Jersey police officer who signed it, violated his confrontation rights.

The judge, pursuant to Massachusetts Rule of Criminal Procedure 34, reported the following question: "Can the Commonwealth prove that the defendant was served a G.L. c. 209A [order] by the return of service filed by an out of state law enforcement officer without direct testimonial evidence that the defendant was in fact the person served?" The reported query included two separate questions:
1. Does the completed return of service form fall within an exception to the hearsay rule; and
2. If so, is it testimonial for the purposes of the confrontation clause of the Sixth Amendment?

Hearsay:
In this case, the return of service is hearsay because the Commonwealth seeks to introduce the certificate to prove that the order was served on the defendant in hand. Hearsay is generally inadmissible unless it falls within a hearsay exception. The statement contained in the return of service 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." Commonwealth v. Slavski, 245 Mass. 405 (1923). Despite the fact that a New Jersey police officer actually served the defendant with the order, 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. 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. The Court found that taken together, these statutory provisions demonstrate that the return of service is a "record of primary fact, made by a public officer in the performance of official duty."

The Confrontation Clause:
Since the return of service is admissible, the Court must then determine whether it is testimonial for the purposes of the confrontation clause of the Sixth Amendment, thus requiring live witness testimony at trial. The fact that the return of service is a public record does not establish that it is not "testimonial" for purposes of the confrontation clause. 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.

The primary purpose of the return of service is to perform the routine administrative functions of the court system, guaranteeing that the defendant receives notice of the order, 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 is not created for the purpose of establishing or proving a fact in a future criminal trial. "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."

The Court answered the reported question in the affirmative: 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. The Court remanded the defendant's case to the District Court for further proceedings.