1 FILED JULY 12, 2012
S T A T E O F M I C H I G A N
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
Z AHRA , J. The issue in this case is whether a Michigan Department of State (DOS) 1 certificate of mailing is testim onial in nature and thus th at its admission, without

1 Although the statutes at issue in this case refer to th e Secretary of State, for ease of reference we generally refer to the DOS given that the Mi chigan Vehicle Code defines “Secretary of State” as including agents and em ployees of the Secretary of State. MCL 257.58. Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra2 accompanying witness testimony, violates th e 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 gr oup of suspended driv ers. The prosecution
seeks to introduce this cert ificate to prove the notice el ement 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 ro le 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 judgme nt of the Court of A ppeals and remand this case to the district court for further proc eedings consistent with this opinion.

2 MCL 257.904(1) provides: A person whose operator’s or chau ffeur’s license or registration certificate has been suspended or re voked and who has been notified as provided in [MCL 257.212] of that suspension or revocation, whose application for license has been deni ed, or who has never applied for a license, shall not operate a motor vehi cle upon a highway or other place open to the general public or gene rally accessible to motor vehicles, including an area designated for the park ing of motor vehicles, within this state.3 I. FACTUAL BACKGROUND AN D PROCEDURAL HISTORY On June 11, 2009, the DOS issued an “ORDER OF ACTION” pursuant to MCL 257.303(2) that revoke d defendant Terry Nunley’s license from June 27, 2009 , to at least June 26, 2010, because he had “2 OR MORE SUBS TANCE ABUSE CONVICTIONS IN 7 YEARS.” The order included a “WARNI NG,” telling defendant not to drive and an explanation of the right to appe al. The DOS contends that it sent this order to defendant by first-class United States mail on June 22, 2009. The DO S contemporaneously generated a certificate of mailing, which indi cated that the DOS had sent defendant the
order. The DOS stored the certif icate without sending defend ant 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 LICE NSE 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 EM PLOYEE F. BUETER [handwritten] [typed] On September 9, 2009, while defendant’s license was s till suspended, the police stopped him for failing to properly secure a lo ad on his truck and issu ed him a citation for DWLS. The prosecution subsequently enhan ced defendant’s charge to DWLS, second offense, under MCL 257.904(3 )(b) because of defendant’s dr iving record. The elements of DWLS require the prosecution to prove (1) that the defendant’s license was revoked or suspended, (2) that the defe ndant was notified of the re vocation or suspension as4 provided in MCL 257. 212, and (3) that the defendant operated a motor vehicle on a public highway while his or her lic ense was revoked or suspended. Before trial, the prosecution moved in lim ine to admit the cer tificate of mailing as proof that defendant had received notice th at his license had been revoked—even though
the certificate did not contain the actual si gnature 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 th e 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 natu re of the certificate required a signature in order to be sufficien t to support notice for a DWLS charge and that to admit the certificate w ithout testimony would violate de fendant’s right to confront the witnesses against him becau se 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 re versed in part the district c ourt’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 an d effective notice under MCL 257.212. The circuit court, however, agreed with the district court that to admit the certificate without testimony would violate de fendant’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 Certif icate of Notice is the statute that defines the criminal offense with whic h defendant is charged. There has been no showing that the Certificate is used for anything other than proof of5 the notice element of DWLS. The People effectively admit this when they describe the twofold purpose of the Cer tificate: “one to state that notice was given to the defendant, and two, to show the defendant’s license was suspended.” Unlike the “narrowly circ umscribed” class of documents such as “a clerk’s certificate authentica ting 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 intend ed that the certificate of notice serve as documentary evidence . . . . That the legislature intended it that way does not mean it does not violate th e 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 prosecu tion’s interlocutory application for leave to appeal. 4 In a split, authored decision, the Cour t of Appeals majority affirmed the lower courts’ rulings that the testim onial 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 th at notification is an el ement 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).6 notification required by the plai n 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 ar gument 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 elemen t of the charge.” 9 The majority also rejected the prosecution’s argument that the certificate was no t created solely for litigation regardless of whethe r it could be consid ered a business r ecord because no statute required maintenance of the certificate and “the [prosecution] concede[d] that one purpose of the certificate of mailing is ‘the pr oduction of evidence for use at trial . . . .’” 10 Judge S AAD , in dissent, concluded that the cer tificate is not testimonial because it
was created before a crime was even comm itted and the employee cr eating the certificate was fulfilling an administrative duty. 11 Judge S AAD believed it was irrelevant that the certificate was used to prove an element of the crime, stating: While the majority is cer tainly correct that th e certificate of mailing is an essential piece of evidence in proving defendant’s guilt, it does not follow that this renders th e 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 (S AAD , P.J., dissenting).7 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 crim inal investigation invo lving 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 13 54; 158 L Ed 2d 177 (2004)] (citation and quotation marks eliminated). . . . It strains credulity to sugg est 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 prosecuti on 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 defenda nt 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 ba sis of the context in which it was created, the certificate of mailing is nontestimonial. [12] The prosecution filed an app lication for leave to appeal in this Court. The Attorney General moved to inte rvene and for immediate consider ation, as well as to stay the effect of the Court of Appeals’ opini on 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, whos e name, “F. Bueter,” was printed on the certificate of mailing concerning defendant. In hi s affidavit, Bueter describes his

12 Id . at 302-304.8 duties—including ensuring the in tegrity of motor vehicle re cords—and facts related to the creation of certificates of mailing. Buet er averred that the DO S sends out numerous types of notices in compliance with MCL 257.212, the vast majority of which are computer generated. According to Bu eter, courts across Michigan notify DOS electronically of driving-record activity related to the withdr awal of driving privileges. An internal computer program at DOS receiv es the information and updates the central driving record of the driver an d 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 cert ificate 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 driv ers—defendant’s name, for example, is included on the eleventh page of the certificate. A DOS st aff member manually fills in
the date on the certificate. Bueter hims elf does not fill in the date, and despite understanding the process of how the notices and certificates are crea ted and shipped, he

13 In the examples Bueter provides, the comb ined notices and certif icates 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 suspen sion 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 no tices and certificates of mailing a year. With regard to mandatory suspensions and re vocations, as in the present case, the DOS generates approximately 50,000 notices a year.9 lacked any personal kn owledge regarding any particular notice of license suspension or revocation or regarding any particular certificate of mailing. We granted the Attorney General’s motions for imme diate 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 wh en it held that the Department of State certificate of mailing is testimoni al in nature an d 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 27 05; 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 c onfrontation is a question of c onstitutional law that this Court
reviews de novo. 16
III. ANALYSIS
A. CONFRONTATION CLAUSE JURISPRUDENCE The Confrontation Clause of the United States Constituti on provides that “[i]n all criminal prosecutions, the accused shall enjoy th e 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).10 witnesses against him . . . .” 17 The state of Michigan has at all times “afforded a criminal defendant the right to ‘be conf ronted with the witnesses against him,’ [by] adopting this language of the federal Confrontation Clau se 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 aime d at truth-seeking an d promoting reliability
in criminal trials. 19 Functioning in this manner, “t he principal evil at which the
Confrontation Clause was directed was the ci vil-law mode of criminal procedure, and particularly its use of ex parte examinations as eviden ce against the accused.” 20 The specific protections the Confronta tion Clause provides apply “only to
statements used as substantive evidence.” 21 In particular, one of the core protections of the Confrontation Clause con cerns hearsay evidence that is “testimonial” in nature. 22 The United States Supreme Court has held that th e introduction of out-of-court testimonial
statements violates the Con frontation Clause; thus, out-o f-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 51.11 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 “‘sole mn declaration or affirmation made for the purpose of establishing or pr oving some fact.’ An accuser who makes a formal statement to government officers b ears 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 wh at 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, custodia l examinations, prior testimony that the defendant was unable to cr oss-examine, or similar pr etrial statements that declarants would reasonably expect to be used prosecutorially,” “extrajudicial statements . . . contained in formalized tes timonial materials, such as affidavits, depositions, pr ior testimony, or confessions,” “statements that were made under circumstances which would lead an objective witness reasonably to belie ve that the stat ement would be available for use at a later trial[.]” These formulations all share a common nucleus and then define the [Confronta tion] Clause’s coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under a ny 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 th e 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).12 asserted therein: that defendant was sent no tice 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, defe ndant 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 ques tion 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 personne l 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 Co nfrontation 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 properl y admitted. See MRE 802.

27 Fackleman , 489 Mich 515.

28 Davis v Washington , 547 US 813, 817; 126 S Ct 22 66; 165 L Ed 2d 224 (2006).

29 Id . at 822, quoting Crawford , 541 US at 52 (alteration in original).13 [s]tatements are nontestimonial when made in the course of police interrogation under circumstances obje ctively indicating that the primary purpose of the interrogation is to en able police assistan ce to meet an ongoing emergency. They are te stimonial when the circumstances objectively indicate that there is no su ch 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 identif ying her assailant during a 91 1 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 questioni ng at the crime scene were
testimonial. 34
In Melendez-Diaz , the United States Supreme Court considered whether “certificates of analysis” were testimonial wh en they reported the re sults of a forensic analysis showing that material seized by th e 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 statem ents 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 2530.14 facts written down and sworn to by the decl arant 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 defe ndant’s possession was, as the prosecution claimed, cocaine, then this was the testimony that the analysts woul d have been expected to provide if called as witnesses at trial. 37 The certificates were thus “functionally identical to live, in-court te stimony, doing ‘precisely wh at a witness does on direct
examination.’” 38 In addition, the Court reasoned that the certificates were “made under circumstances which would lead an objectiv e witness reasonably to believe that the
statement would be available fo r use at a later trial,” given that “under Massachusetts law
the sole purpose of the [certificates] was to pr ovide 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 provis ion—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 25 32 (citations and quotation marks omitted).

40 Id . at ___; 129 S Ct at 2532.15 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 te stimony of a scientist who did not sign the certification or perform or observe th e 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 argumen t that the report was not testimonial, analogizing it to the certif icates of analysis in Melendez-Diaz and pointing out that “formalities attending the ‘report of blood alcoho l analysis’ are more than adequate to qualify [the analyst’s] assertions as testimoni al” and that “[t]he ab sence of notarization does not remove his certification from Confrontation Clause governance.” 43 Further, Justice Ginsburg, joined by Justice Scalia, rejected the argument th at this “unbending application of the Confrontation Clause . . . would impose an undue burden on the prosecution,” reiterating that th e 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 2717-2 718 (citation omitted; alteration in original). Only Justice Scalia joined part IV of Justice Ginsbu rg’s opinion, wh ich otherwise constituted the opinion of the Court.16 Most recently, the United States Suprem e Court issued a pl urality opinion in Williams v Illinois that addressed whether portions of the expert testimony from a forensic specialist violated the de fendant’s right of confrontation. 45 Specifically, the expert witness testified that a DNA profile produced by an outs ide laboratory using semen from vaginal swabs from the victim ma tched 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 th e outside laboratory
violated the Confrontation Clause. 47 The lead opinion concluded that the e xpert’s testimony concerning the outside laboratory did not run afoul of the Confrontation Clause for two reasons. 48 First, the outof-court statements were related by the expe rt only for the purpos e 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 ev idence, 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 pr imary purpose of accusing a targeted individual,” which

45 Williams v Illinois , 567 US ___; 132 S Ct 22 21; ___ L Ed 2d ___ (2012).

46 Id . at ___; 132 S Ct at 2 227 (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 2228.17 distinguished the report from the evidence at issue in Crawford and its progeny. 51 Rather, the lead opinion reas oned that, viewed objectively, the primary purpose of the report was to catch the perpetrator who was st ill 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 origin ally 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 “lac ked the requisite ‘form ality and solemnity’
to be considered ‘testimonial’. . . .” 55 The dissenting opinion expressed agreement with Justice Thomas that the statements were o ffered for the truth of the matter asserted. 56 The dissent, however, concluded that the out-of-c ourt 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 estab lish “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 (c itation and quotati on 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).18 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 eviden ce 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 te stimonial statements that are subject to the Confrontation Clause. 59 This Court reasoned that the report memo rialized the “defendant’s medical history and the events that led to his admitta nce to the hospital, provided the all-important diagnosis, and outlined a plan for treatment.” 60 Thus, this report constituted the psychiatrist’s testim ony regarding the defendant’s mental illness. 61 Further, this Court opined that the stat ements in the report were “made under circumstances which would lead an objectiv e witness reasonably to believe that the statement would be available for us e at a later trial,” given that (1) defendant’s admittance to the hos pital was arranged by lawyers, (2) defendant was arrested en route to the hospital, (3) the report noted that the Monroe County Sheriff requested notific ation 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 cl early 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

.19 focused on defendant’s alleged crime and the charges pending against him. [62] Accordingly, this Court concluded that the ad mission into evidence of the psychiatrist’s diagnosis—an out-of-court, testimonial stat ement offered for its truth—violated the defendant’s constitutional right to be con fronted with the w itnesses against him. 63
B. APPLICATION The Court of Appeals majo rity relied largely on Melendez-Diaz to conclude that the certificate of mailing was testim onial in nature. In so doing, the majo rity 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 th e offense, certainly the certificate of mailing
was “‘“made under circumstan ces which would lead an objective witness reasonably to believe that the statement would be av ailable 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—suc h as affidavits, deposi tions, prior testimony,
and confessions—that Crawford included in the core class of testimonial statements. 66 The certificate of mailing memoria lizes 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 51-52.20 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 purpos es of the Confrontation Clause. Instead, we believe that the circum stances under which the certificate was generated show that it is a nontestimonial business record created primarily for an
administrative reason rather than a testimoni al 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 th e 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 unambig uous factual matter, documenting that the DOS has undertaken its statutorily authorized bureaucratic responsibilities. Thus, the
certificate is created for an administrative bu siness reason and kept in the regular course of the DOS’s operations in a way that is pr operly within the bureaucratic purview of a

67 See Melendez-Diaz , 557 US at ___; 12 9 S Ct at 2532.

68 Id . at ___; 129 S Ct at 2539-2 540. We note that how one ch aracterizes the certificate is not dispositive. Even if we characterized th e certificate of mailing as an affidavit, it would not render it de fact o 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 gi ven the circumstances in which the report was created and its lack of formality). Fu rther, even if the certificate constitutes a business record, when such a docum ent is “prepared specifically for use at . . . trial,” it is generally testimonial and su bject to confrontation. Melendez-Diaz , 557 US at ___; 129 S Ct at 2540.21 governmental agency. Our an alysis of the nature and pur pose of the certificate, as informed by the circumstances under which it wa s created, leads us to the conclusion that it is nontestimonial for the purposes of the Confrontation Clause. Perhaps most significant to th is analysis is the fact th at 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 c ontemporaneously with the notice itself. Accordingly, a person, even one whose licen se has been suspended, cannot legally commit the crime of DWLS before he or sh e 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 investigator y 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 oper ation 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 no tified or by firstclass United States mail . . . . MCL 257.904(1), in turn , generally recognizes that th e 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 notif y drivers when their licenses are suspended or revoked as in herent within its duties to administer and regulate this22 state’s driver’s licenses. Because of de fendant’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 dr iver’s license had been revoked.
Once the DOS sent defendant the required notice regard ing the revocation of his license, MCL 257.212 mandated that the no tice 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 mailin g the notice.” The statute fu rther provides th at “[p]roof of the giving of notice in either manner ma y 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 esta blish “proof of the giving of
notice” in accordance with the DOS’s statutorily authori zed 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 reasona bly to believe that it would be available for use at a later
trial. At the time the certificate was create d, there was no expectation that defendant would violate the law by driving with a re voked driver’s license and therefore no

69 MCL 257.303(2)(c) provides that the Secret ary of State “shall revoke” the license of a driver who has two alcohol-related driving co nvictions 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 257.212.23 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 estab lishing some fact at trial.” 72 Instead, as Judge S AAD 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 licen ses have been suspen ded or revoked be charged with DWLS before having received th e notice of the suspensi on 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 anticipati on 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 (S AAD , P.J., dissenting).

74 Melendez-Diaz , 557 US at ___; 12 9 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 201.24 in regard to defendant or any ot her 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 no t 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 certific ation of mailing at issue is
not testimonial. In State v Murphy , the Maine Supreme Judicial Court considered a certificate-notice system, seemi ngly 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 un der 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 th e dissenting opinion from the United States Supreme Court’s recent plurality decision in Williams . Consistently with the reasoning of th e lead opinion, Williams , 567 US at ___; 132 S Ct at 2242-2244, the primary purpose of the certificate of mailing wa s 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 w ith the reasoning of the dissenting opinion, id . at ___; 132 S Ct at 2273-2274 (Kagan, J., dissenting), the primar y 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 th at “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 certif icate of mailing would be available for use at a later trial because no crime had been committed at th e 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).25 Diaz , the court stated that “[r]ead expansively, Melendez-Diaz might be construed as requiring us to conclude that [the certific ate] 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 te stimony 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 Main e Secretary of State, who was ch arged 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 routin ely-maintained public records
indicate.” 83 Third, the court stated th at “neither the certificate nor the records to which it refers are primarily maintain ed and employed for purposes of criminal prosecution. Identical certificates are routinely prepar ed for nonprose cutorial 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

.26 administrative motor vehicle proceedin gs and insurance-related inquiries.” 84 Lastly, unlike the certificates of analysis in Melendez-Diaz , “[b]ecause neutral, bureaucratic information from routinely ma intained 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 thos e 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 th at 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 notic e 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 administrati on 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 busine ss record from the registry. . . . [However, the actual certific ate used here] was not cr eated 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 5.27 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 nontes timonial business record. [89]
Both Murphy and Parenteau provide support for our conc lusion that the certificate of mailing here is not testimonial. Significan t in both cases were the circumstances under
which the certificates were created. The timing of the certificates’ creation, who requested that creation or ho w 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 purpose s other than prosecution, while in Parenteau , the creation of the certificate was made at th e 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 ak in to the neutra l records largely maintained as a part of a bureaucratic purpose in Murphy . Thus, the certificate of mailing here is like the hypothetical bus iness 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 addressi ng illegal reentry into the United States provide additional support for our conclusi on that the certificate of mailing is not testimonial. Federal law prohibits the reen try of an alien after the alien has been

89 Id . at 10.

90 Id

.28 previously deported. 91 To prove an essential element of this crime, the prosecution will
introduce into evidence a warr ant of deportation. In this document, an immigration official attests that he or she witnesse d the defendant’s previous deportation. Subsequently, if the defendant is found with in the United States and is prosecuted for illegal reentry, federal courts have consiste ntly ruled that the wa rrant is admissible without accompanying testim ony to prove that the defe ndant had been deported. 92 Concluding that a warrant of deportation is not testimonial, the United States Court of Appeals for the Eleven th 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. Beca use a warrant of deportation does not raise the concerns regarding te stimonial evidence stated in Crawford , we conclude that a warrant of deportati on is non-testimonial and therefore is not subject to confrontation. [93] This conclusion is representative of the ma nner in which the United States Courts of Appeals for other circuits have reasoned. We find this analogous line of federal decisi ons 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 TorresVillalobos , 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 1145.29 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 c oncerns 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 indi cating 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 circum stances objectively indicating a purpose to
ensure the maintenance of reco rds indicating that the DOS ha s carried out its authorized function of notifying persons co nvicted of certain driving o ffenses 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 wi thout accompanying testimony will not violate the

94 Id

. 95 Torres-Villalobos , 487 F3d at 613.30 Confrontation Clause. Accordingly, we reve rse the judgment of the Court of Appeals
and remand this case to the district court fo r further proceedings consistent with this opinion.

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

H ATHAWAY , J. I concur in the result only. Diane M. Hathaway