Trial. Robert Michels met Allison Formal through an online dating Web site in 2002. Michels represented himself as the retired chief executive officer of a large company that he had sold for millions of dollars. In January 2003, Michels proposed that he

Question

and Formal create a limited liability company (a special form of business organization discussed )—Formal Properties Trust, LLC—to "channel their investments in real estate." Formal agreed to contribute $100,000 to the company and wrote two $50,000 checks to "Michels and Associates, LLC." Six months later, Michels told Formal that their LLC had been formed in Delaware. Later, Formal asked Michels about her investments. He responded evasively, and she demanded that an independent accountant review the firm's records. Michels refused. Formal contacted the police. Michels was charged in a Virginia state court with obtaining money by false pretenses. The Delaware secretary of state verified, in two certified documents, that "Formal Properties Trust, L.L.C." and "Michels and Associates, L.L.C." did not exist in Delaware. Did the admission of the Delaware secretary of state's certified documents at Michels's trial violate his rights under the Sixth Amendment? Why or why not?

Answer 1

Trial
After a jury trial, Michels was convicted. He appealed to a Virginia state intermediate appellate court, arguing that the certified documents were "testimonial in nature and, therefore, their admission in his criminal trial violated his Sixth Amendment rights." The state intermediate appellate court affirmed Michels's conviction, concluding that the documents certified by the Delaware state official were not testimonial. The court provided two reasons for its conclusion. First, the documents were not accusatory and did not describe any criminal wrongdoing. They did not describe past events or facts that implicated Michels in any criminal scheme, but only verified that the Delaware official had searched the state's public records, with certain results. Second, the documents were not prepared in a manner resembling an ex parte examination. The court recognized that the "principal evil at which the [Sixth Amendment's] Confrontation Clause was directed was the * * * use of ex parte examinations as evidence against the accused." The court also acknowledged that a police officer had requested the documents, but emphasized that the secretary of state was asked only to prepare a document certifying the results of "a routine search of business records." The court explained that the documents were prepared in a "non-adversarial setting in which the factors likely to cloud the perception of an official engaged in the more traditional law enforcement functions of observation and investigation of crime are simply not present."