In a 16-paged majority opinion (with a 12-paged dissent), the Virginia Supreme Court resolved a $235.10 shoplifting case where the difference between convicting the defendant of a misdemeanor (less than $200 of merchandise taken) and convicting her of a felony was only $35.10. Robertson v. Commonwealth of Virginia, Record No. 0477-11-3, (September 11, 2012). The Supreme Court threw out the felony conviction and sent the case back to the lower court.
A Family Dollar store manager had testified at the criminal trial that she supervised the identification and totaling-up of the allegedly shoplifted merchandise, but also admitted that she had not personally verified the price of each item and its entry on the list that was added by machine. Testimony from the clerk who actually performed the tabulation was unavailable at trial.
Defense counsel argued that the voided cash register tape of allegedly shoplifted items was hearsay; and that Ms. Robertson had been deprived of her right to cross-examine the clerk who created the list of prices received by the trial court as “testimonial” evidence. Robertson’s right of cross-examination arises out of the “confrontation clause” of Sixth Amendment to the United States Constitution, which states that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." The Supreme Court agreed.
The Commonwealth further claimed on appeal that the cash-register-tape exhibit had been properly admitted into evidence as a business record. Business records are an exception to the hearsay rule if the chain of custody is preserved and the record is part of a usual and customary business routine. The Supreme Court said that in this case, the tape could not be considered a business record, because Family Dollar stores had no regular procedure for totaling up merchandise that someone had tried to steal. In other words, if an exhibit is not a business record, then you must bring to court everyone involved in creating and preserving it. Robertson’s attorney had a Constitutional right to cross-examine the clerk who made the register tape — to make sure each allegedly stolen item was properly identified, priced, and entered in the column of figures that had been totaled up. That right had been wrongfully denied.
This Robertson decision consumed substantial judicial resources over a small amount of money. But the importance of protecting a criminal defendant’s right to confront her accuser is – in my opinion – huge. And I believe this case was properly decided.