On the "Business Record Exception to Daubert"

On Friday, the Nebraska Supreme Court held, in a criminal case, that cell phone call records and location data are admissible without regard to Daubert, under the business record exception to the hearsay rule. See State v. Robinson, 272 Neb. 582, 608-20 (2006).

There will be no quarrel here with the outcome in Robinson. Most would probably agree that phone company records of calls made and received should be admissible. Cell phone location data may be more controversial, but we recognize the possibility that a showing of their trustworthiness and reliability could perhaps be made. Indeed, foundation testimony offered by the prosecution in Robinson arguably made it.

Our issue is solely with the Robinson court's reasoning and analysis. Don't get us wrong. We're as admissibility-friendly as the next person. But the law should be coherent, and we're not sure the Robinson opinion promotes that goal.

The Robinson court's ruling starts from the premise that "defendant’s Daubert objection was made, not to expert opinion testimony, but to business records evidencing historical facts." Because the records did not constitute "opinion testimony," the court said, they were "not subject to inquiry pursuant to Daubert." Their trustworthiness might permissibly have been questioned under Neb. Evid. R. 803(5) (the Nebraska equivalent of the hearsay exception for business records in Fed. R. Evid. 803(6)). But the defendant failed to make the requisite showing of untrustworthiness at trial.

It may be doubted, first of all, that the location data, in particular, recited no "opinion" reliant on specialized knowledge. The data reflected a conclusion about a cell phone's location (or at least about the location of towers receiving the cell phone's signal) that was not drawn from anyone's personal knowledge or observation. Rather, that conclusion was supportable, if at all, only through inferences from principles involving the behavior of radiomagnetic signals and phone company equipment. The fact that a conclusion is generated through computers and machines, or recorded in the form of a business record, does not render it any the less an "opinion." The computers and machines merely cloak the specialized assumptions they implement (or are supposed to implement), and relegate the human beings who chose to adopt those assumptions, and who designed the machines and programmed the computers, to anonymity.

Nor do opinions become non-opinions because the opinions "evidence historical facts." Most expert opinion "evidences historical facts." An opinion that cigarettes caused a litigant's cancer, for example, is an opinion that the cigarettes' causal role is an "historical fact."

It is not the general rule, secondly, that only "opinion" testimony is subject to reliability scrutiny under Daubert. In the federal courts (to which Nebraska's courts look for guidance), the defining feature of expert testimony is rather that it places reliance on specialized knowledge beyond the ken of the normal layperson. Does cell phone location data meet that description? The Robinson opinion summarizes some of the foundation testimony on this point as follows:

Each sector puts out a constantly generated pilot signal. When a call is generated, the cellular telephone finds the strongest pilot signal and sets up the call on the corresponding sector. The sector serving the geographic area where the telephone is located is most likely the one that will be utilized to set up the call. After the call is established, the telephone can utilize several towers at the same time, but during the call setup phase, it uses only the sector with the strongest signal. Once a traffic channel has been established, the signals go from the cellular site to the switch and are then routed back out either to another telephone, if the call is to another Cricket customer, or to another telephone company’s switch, if the call is to a customer of another service provider.

We're not technophiles. But that sounds like specialized knowledge to us.

There is room to argue, we'll agree, that in the case of business records, Daubert's reliability inquiry can or should be absorbed into the traditional "trustworthiness" analysis associated with the hearsay rule. There is even room to argue that for some categories of business record, or perhaps even for all, the traditional "trustworthiness" analysis should displace the reliability calculus that Daubert would otherwise prescribe.

But such results, if reached at all, should be reached explicitly and transparently, after due consideration of the policy implications. Decisions should not instead be predicated on the spurious premise that Daubert applies only to "opinion" testimony, or the fallacious theory that an opinion becomes a non-opinion because it states a conclusion about a "fact," or because a business record of the opinion is maintained.