Can an Evidentiary Rule Rise Higher Than an Evdentiary Statute in Meeting Constitutional Standards

In Kettle v. State, 641 So. 2d 746 (Miss. 1994), the Mississippi Supreme Court expressed its view thusly: An evidentiary rule can rise no higher in meeting constitutional standards than an evidentiary statute. While it is true that a custodian under the rule could introduce the records in his care and custody, he cannot satisfy the right to confront witnesses when properly invoked: The subdivision only gives authenticity to the certificate being used as substantive evidence of the facts stated therein. To be used as the evidence of these facts without the accompanying testimony of the analyst who prepared the certificate, constitutional requirements must be met. This means there must be a pre-trial agreement by the defendant with the prosecuting attorney consenting to such and waiving the right to confront and cross-examine that witness. 641 So. 2d at 749-750 (quoting Barnette v. State, 481 So. 2d 788, 791-92 (Miss. 1985)). The Kettle court relied, in part, on United States v. Oates, 560 F.2d 45 (2d Cir. 1977). The court's reliance on Oates, however, is misplaced because there the Second Circuit held that a drug test performed by law enforcement officials could not be admitted in a criminal trial as a public record since the report was made pursuant to an investigation against the accused. See id. at 84 (relying on Federal Rule of Evidence 803(8)(C), which prohibited admission of public records regarding "factual findings resulting from investigations made pursuant to authority granted by law"). In contrast, the alcohol test result being admitted in the instant case was performed by a hospital, which did not have an interest in the outcome of the future criminal case lodged against the defendant.