author: JUSTICE REGNIER JUSTICE LEAPHART, JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD A. CLARK, Defendant and Appellant.
    No. 97-096.
    Heard April 27, 1998.
    Submitted April 30, 1998.
    Decided September 3, 1998.
    1998 MT 221.
    55 St.Rep. 919.
    290 Mont. 479.
    964 P.2d 766.

      For Appellant: Daniel P. Buckley (argued); Berg, Lilly, Andriolo and Tollefson, PC.; Bozeman; and Brock Albin (argued); Kommers & Roth; Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt (argued), Assistant Attorney General; Helena; Marty Lambert, Gallatin County Attorney; Jane Mersen, Deputy County Attorney; Bozeman.
    For Amici Curiae: William F. Hooks; Montana Appellate Defender Office; Helena (for State Bar of Montana Criminal Defense Section); James J. Shea; Bricker, Zakovics, Querin, Thompson & Ritchey, PC.; Missoula (for Montana Association of Criminal Defense Lawyers).
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 Ronald Clark appeals from the judgment and sentence entered by the Eighteenth Judicial District Court, Gallatin County, on his convictions for criminal possession of dangerous drugs and drug paraphernalia, driving under the influence of alcohol, failure to remain at the scene of an accident, and failure of duty upon striking an unattended vehicle. For the reasons stated below, we reverse in part, affirm in part, and remand to the District Court.

¶2 Clark presents the following issues on appeal:

¶3 1. Is that portion of Rule 803(8), M.R.Evid., which governs the introduction of written reports from the Montana state crime laboratory unconstitutional?

¶4 2. Did the District Court err in denying Clark’s request for a psychological evaluation pursuant to § 46-14-202, MCA?

¶5 3. Did the District Court err in denying Clark’s motion for a mistrial made on the grounds that the court erred in permitting a witness for the State to testify as to other crimes, wrongs, or acts by the defendant?

¶6 4. Did the District Court err in denying Clark’s motions to set aside the verdict and to dismiss Count 1 of the amended information made on the grounds that the court had failed to arraign Clark on the charges contained within the amended information filed by the State?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 On March 26,1996, Bozeman police arrested Clark in connection with two automobile accidents which had occurred on the city’s streets that morning. On April 3,1996, the State filed an information charging Clark with two felony counts of criminal possession of dangerous drugs, in violation of § 45-9-102, MCA. The State also charged Clark with misdemeanor counts of criminal possession of drug paraphernalia, in violation of § 45-10-103, MCA, second offense DUI, in violation of § 61-8-401, MCA, failure to remain at the scene of an accident, in violation of § 61-7-104, MCA, failure of duty upon striking unattended vehicle, in violation of § 61-7-106, MCA, and failure to carry proof of insurance, in violation of § 61-6-302, MCA. Clark appeared with counsel at his April 17,1996, arraignment and pled not guilty to all charges.

¶8 On October 21,1996, the State filed a motion for leave to file an amended information “to consolidate the charges in counts 1 and 2 and to change the name of the dangerous drug from Methamphetamine to Amphetamine.” The court heard oral argument on the State’s motion and advised the State to file an amended affidavit of probable cause. The State filed its amended affidavit on October 22, 1996, and the court issued an order the following day granting the State permission to file an amended information. The State accordingly filed an amended information on October 23,1996, consolidating Counts 1 and 2 of the original information, and charging Clark with criminal possession of amphetamine.

¶9 On October 21,1996, the same day it filed a motion for leave to amend its information, the State also filed a notice of its intent to offer written crime lab reports in evidence pursuant to Rule 803(8), M.R.Evid. Clark filed a written response, objecting to “the admission of the reports without the proper foundation being laid by the author of the report.” Clark argued that the admission of the report in the absence of its author would violate his “right to conduct a cross-examination.” On November 21,1996, the court held a hearing on Clark’s various pretrial motions, and ordered from the bench that the State could introduce the crime lab reports without making the author available. The court explained that, pursuant to Rule 803(8), M.R.Evid., if Clark wished to question the author of the crime lab reports, he would have to subpoena her as a witness.

¶10 Clark was tried before a jury on November 26 and 27,1996. The jury returned its verdict on November 27, 1996, convicting Clark of criminal possession of dangerous drugs, criminal possession of drug paraphernalia, DUI, failure to remain at the scene of an accident, and failure of duty upon striking unattended vehicle.

¶11 On December 30, 1996, Clark filed a post-trial motion to set aside the verdict on Count 1 of the amended information, and dismiss that charge with prejudice. The court denied Clark’s motion on January 6,1997, and sentenced him the following day. The court sentenced the defendant to five years in prison, with all but thirty-three days suspended, on his conviction for Count 1, criminal possession of dangerous drugs. Clark received a concurrent sentence of six months in jail, with all but thirty days suspended, on his conviction for Count 2, criminal possession of drug paraphernalia. As to Counts 3, 4, and 5, the court ordered that Clark be committed to the county jail for a period of thirty days for each offense, with those sentences to be served concurrently with his sentence under Count 1. Clark filed his notice of appeal on January 7,1997.

ISSUE 1

¶12 Is that portion of Rule 803(8), M.R.Evid., which governs the introduction of written reports from the Montana state crime laboratory unconstitutional?

¶13 Rule 803(8), M.R.Evid., provides as follows:

To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (i) investigative reports by police and other law enforcement personnel; (ii) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the government in criminal cases; (iv) factual findings resulting from special investigation of a particular complaint, case, or incident; and (v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness. However, written reports from the Montana state crime laboratory are within this exception to the hearsay rule when the state has notified the court and opposing parties in writing of its intention to offer such report or reports in evidence at trial in sufficient time for the party not offering the report or reports (1) to obtain the depositions before trial of the person or persons responsible for compiling such reports, or (2) to subpoena the attendance of said persons at trial.

¶14 As noted above, it was on October 21,1996, that the State first filed notice of its intent to offer written crime lab reports into evidence pursuant to Rule 803(8), M.R.Evid. The State indicated it intended to offer “the report of forensic scientist Annalivia Harris, relating to the substances taken from the defendant on March 26,1996, in evidence during the trial of this action.” Clark filed a written response on November 13,1996, in which he objected “to the admission of the reports without the proper foundation being laid by the author of the report.” Clark additionally objected to the admission of the report in the absence of its author on the grounds that such a procedure violated his right to conduct a cross-examination. In reply, the State urged the District Court to apply Rule 803(8), M.R.Evid., and admit the crime lab report without requiring Harris to testify. The State argued “[tjhere will be no prejudice to the defense if Ms. Harris does not testify,” because all she would “say is contained in her report.”

¶15 On November 14,1996, the District Court held a hearing regarding the State’s proposed use of the crime lab report prepared by Harris. The State argued the report was admissible pursuant to Rule 803(8), M.R.Evid., and asked that “the Court require the defendant to subpoena Ms. Harris if [he] want[s] her here.” Having heard argument by the parties, the court deferred its ruling on the admissibility of the crime lab report. On November 21, 1996, during a hearing on various pretrial motions, the court ruled from the bench that “the State can introduce the report.” With respect to Harris’s presence at trial, the court instructed defense counsel with the following in accordance with Rule 803(8): “If you want that person here, Mr. Buckley, you subpoena her.”

¶16 On appeal, Clark argues that that portion of Rule 803(8), M.R.Evid., which governs the introduction of Montana state crime lab reports is unconstitutional, and asserts the District Court thus erred in permitting the State to introduce the crime lab report without calling its author as a witness. More specifically, Clark first argues that portion of the rule which required him to subpoena Harris as a witness in the event he wished to cross-examine her, impermissibly shifted the burden of proof from the State to the defendant in violation of both the Montana and United States Constitutions. Clark next argues that, because the rule authorized the State to introduce Harris’s crime lab report without calling her as a witness, it violated his right to confront and cross-examine his accusers as guaranteed by the Montana and United States Constitutions.

¶17 We have repeatedly recognized that “a legislative enactment ‘is presumed to be constitutional and will be upheld on review except when proven to be unconstitutional beyond a reasonable doubt.’ ” Zempel v. Uninsured Employers’ Fund (1997), 282 Mont. 424, 428, 938 P.2d 658, 661 (quoting City of Billings v. Laedeke (1991), 247 Mont. 151, 154, 805 P.2d 1348, 1349).

A. Confrontation Clause

¶18 We turn first to Clark’s assertion that the provisions of Rule 803(8), M.R.Evid., which govern the introduction of state crime lab reports, violate the Confrontation Clause of the Montana Constitution. Clark specifically asserts that “[w]hen the District Court admitted the crime lab report without requiring the presence of the technician who wrote the report, it violated [his] right to confront and cross-examine his accuser.” Clark argues admission of the report without the presence of its author denied him the opportunity to cross-examine the technician, to observe the witness at trial, to cast doubt on the accuracy of the report, and to question the chain of custody.

¶19 The State, in contrast, argues Rule 803(8), M.R.Evid., “does not violate a defendant’s right to confront and cross-examine his accusers as protected by the Montana Constitution.” In support of its argument, the State points to a number of decisions in which various federal courts have held that the admission of certain written laboratory reports, without the presence of the author at trial, does not violate the Confrontation Clause of the United States Constitution. For example, the State relies in part upon the case of United States v. Roulette (8th Cir. 1996), 75 F.3d 418, 422, cert. denied, Roulette v. United States (1996), 117 S. Ct. 147, 136 L. Ed. 2d 93, in which the Eighth Circuit Court of Appeals held that, pursuant to the business records exception to the hearsay rule, the government could introduce laboratory reports identifying the substance involved in a drug case without producing testimony by the person who conducted the tests or proof of her unavailability. The State urges this Court to follow the foregoing line of federal court cases, and hold that that portion of Rule 803(8), M.R.Evid., which governs the introduction of Montana state crime lab reports complies with the requirements of Montana’s Confrontation Clause.

¶20 It is well-established, however, that we may interpret a provision of the Montana Constitution to afford greater protection than that afforded by its federal counterpart. Pfost v. State (1985), 219 Mont. 206, 215, 713 P.2d 495, 500-01, overruled on other grounds by Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 26, 776 P.2d 488, 491. For example, in State v. Stever (1987), 225 Mont. 336, 344, 732 P.2d 853, 858, we recognized that we were not bound by a United States Supreme Court decision interpreting the Sixth Amendment Confrontation Clause in the context of hearsay evidence “as we may interpret our state constitution to guarantee greater rights than those guaranteed by the federal constitution.”

¶21 Article II, Section 24, of the Montana Constitution, the counterpart to the Confrontation Clause of the United States Constitution, provides as follows:

In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same.

¶22 Unlike its federaPcounterpart, the text of Montana’s Confrontation Clause specifically guarantees the accused’s right “to meet the witnesses against him face to face.” As we noted in State v. Young (1991), 249 Mont. 257, 260, 815 P.2d 590, 592, “[t]he 1972 Montana Constitution and subsequent cases analyzing the Confrontation Clause have made it abundantly clear that full cross-examination is a critical aspect of the right of confrontation.” Moreover, we have recognized that the rights contained in the Declaration of Rights, which include the rights guaranteed to an accused person in a criminal prosecution, are fundamental rights. Wadsworth v. State (1996), 275 Mont. 287, 299, 911 P.2d 1165, 1171-72.

¶23 Cross-examination is the hallmark of our system of justice because it produces truth. Such things as the demeanor of a witness, his or her body language, and a witness’s hesitancy in giving testimony, often communicate as much to the fact-finder as the spoken words. All of this is lost in a written deposition.

¶24 In this case, the chemical analysis of the drugs was a critical component of the State’s case. The experience, background, and training of the technician, and the method and manner of tests conducted, are all matters which the defendant is entitled to explore through cross-examination in the presence of the fact-finder. The framers of the Montana Constitution appreciated these safeguards and saw fit to distinguish our Confrontation Clause from the United States Constitution by insuring a criminal defendant the right “to meet the witnesses against him face to face.” Mont. Const, art. II, § 24.

¶25 In light of the fact that Montana’s Constitution specifically guarantees a criminal defendant the right to a face-to-face confrontation with his or her accusers, and in light of the critical importance of an accused’s fundamental right of confrontation, including the right of cross-examination, we conclude that portion of Rule 803(8), M.R.Evid., which governs the introduction of Montana state crime lab reports violates Article II, Section 24, of the Montana Constitution.

B. Due Process

¶26 Clark next argues that the segment of Rule 803(8), M.R.Evid., which required him to subpoena Harris as a witness in the event he wished to cross-examine her, impermissibly shifted the burden of proof, including the burden of production and persuasion, to him in violation of both the Montana and United States Constitutions. More specifically, Clark argues that portion of the rule which required him to subpoena the author of the crime lab report in the event he wished to confront and cross-examine her, impermissibly shifted the burden of proof away from the State by “allowing the State to prove an integral part of [its] case against the defendant without more than a crime lab report.” Clark thus argues the requirement that he subpoena the technician in the event he wished to cross-examine her violated the due process guarantees of Article II, Section 17, of the Montana Constitution, and the Fourteenth Amendment to the United States Constitution.

¶27 The State, in contrast, argues the fact that Rule 803(8), M.R.Evid., permitted Clark to subpoena Harris in the event he wished to cross-examine her in no way shifted the burden of proof. The State argues that Rule 803(8) does not allow the State or the jury to presume any of the elements of the crime charged, but “is simply another hearsay exception the courts have allowed because it is the type of evidence that bears an adequate indicia of reliability and trustworthiness.” The State asserts that it always bore the burden of proving “beyond a reasonable doubt all the elements of the crime,” and asserts the “admission of evidence under a hearsay exception does not alter that fact.”

¶28 Moreover, the State effectively argues that portion of Rule 803(8), M.R.Evid., which afforded Clark the opportunity to subpoena the author of the crime lab report actually guaranteed Clark’s constitutionally protected right of confrontation. For example, the State asserts that where, as it alleges is the case here, the utility of producing a witness is remote, “the opportunity for effective cross-examination is satisfied where the defendant himself had the opportunity to call the declarant as a witness.” See, e.g., Reardon v. Manson (2d Cir. 1986), 806 F.2d 39, 42, cert.denied, Reardon v. Lopes (1987), 481 U.S. 1020, 107 S. Ct. 1903, 95 L. Ed. 2d 509 (recognizing that “in those borderline cases where the likely utility of producing the witness is remote, the Sixth Amendment’s guarantee of an opportunity for effective cross-examination is satisfied where the defendant himself had the opportunity to call the declarant as a witness.”) The State argues that, “if Clark investigated and had evidence that the personnel at the Montana State Crime Laboratory were careless in their procedures, then Clark could have, as part of his defense, subpoenaed the technician and anyone else from the crime laboratory that he felt necessary to support his argument.” Because Clark could have chosen to call Harris as a witness, the State argues the opportunity for effective cross-examination was satisfied.

¶29 The due process guarantee of the Montana Constitution, embodied in Article II, Section 17, makes it the State’s duty in a criminal prosecution to prove beyond a reasonable doubt every element of the crime charged. State v. Korell (1984), 213 Mont. 316, 330, 690 P.2d 992, 1000 (citing In re Winship (1970), 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375). Pursuant to Rule 803(8), M.R.Evid., however, the State in this case was not required to present the technician who prepared the state crime lab report as a witness in its case-in-chief, and was not required to subject her to cross-examination or confrontation. Instead, it was Clark who bore the burden of subpoenaing the State’s witness in order to present a full defense and enjoy his constitutionally protected rights under the Confrontation Clause. Contrary to the State’s argument, the fact that Clark could have subpoenaed the State’s witness if he had so chosen does not remedy the Rule’s constitutional deficits. Rather, the Rule effectively required Clark to subpoena and produce the State’s expert in order to rightfully take advantage of the protection afforded him under the Confrontation Clause. In reality, the defendant is compelled to produce evidence during his case-in-chief, which in many instances will be incriminating, should he choose to test the State’s case. Such a result is impermissible in light of the due process guarantees of Article II, Section 17, of the Montana Constitution.

¶30 Based on the foregoing, we hold that that portion of Rule 803(8), M.R.Evid., which governs the introduction of Montana state crime lab reports, not only violates the Confrontation Clause of the Montana Constitution, but also violates the due process guarantees embodied in Article II, Section 17. Having so held, we need not address Clark’s argument that the rule similarly violates the Confrontation Clause and due process guarantees of the United States Constitution.

ISSUE 2

¶31 Did the District Court err in denying Clark’s request for a psychological evaluation pursuant to § 46-14-202, MCA?

¶32 Just prior to the start of trial on November 26, 1996, Clark asked for a continuance on the grounds that his mother’s recent hospitalization rendered him unable to provide effective assistance for his defense. The court denied Clark’s motion from the bench, and the trial commenced as scheduled.

¶33 During the second day of trial, defense counsel asked that the court grant Clark the opportunity to undergo a psychological evaluation to determine whether he was capable of proceeding with the trial and providing assistance in his defense. Again referring to Clark’s ailing mother, defense counsel explained that his client was “under an extreme amount of stress and pressure,” and noted that “[t]he past day and a half have taken a toll on my client.” Clark’s attorney asked that the court grant his client “an opportunity to contact his psychologist so that the psychologist can render an opinion as to whether Mr. Clark can proceed in this trial and ... provide assistance in his defense.” The court denied Clark’s motion without discussion, and the trial continued. On appeal, Clark argues the District Court erred in denying his request for a psychological evaluation to determine his fitness to proceed with his trial.

¶34 Having already determined that Clark is entitled to a new trial on the grounds that that portion of Rule 803(8), M.R.Evid., which governs the introduction of Montana state crime lab reports is unconstitutional, we need not address Clark’s argument that the court erred in denying his request for a psychological evaluation.

ISSUE 3

¶35 Did the District Court err in denying Clark’s motion for a mistrial made on the grounds that the court erred in permitting a witness for the State to testify as to other crimes, wrongs, or acts by the defendant?

¶36 We review a district court’s ruling on a motion for a mistrial to determine whether the court abused its discretion. State v. Partin (1997), [287 Mont. 12], 951 P.2d 1002, 1005.

¶37 Clark argues the District Court improperly permitted Officer Tim Little, a witness for the State, to testify as to prior crimes, wrongs, or acts, under Rule 404(b), M.R.Evid., despite the State’s failure to abide by the notice requirements of State v. Just (1979), 184 Mont. 262, 274, 602 P.2d 957, 963-64. Clark contends the District Court erred in denying his subsequent motion for a mistrial which he made based upon the admission of what he characterizes as evidence of other crimes, wrongs, or acts.

¶38 Clark asserts it was during the following exchange that the State improperly elicited testimony from Officer Little regarding other crimes, wrongs, or acts:

County Attorney: Okay. When I asked you earlier about the defendant’s — your observation or your opinion as to his state of intoxication; what did you base that on?
Officer Little: I had known him before and —
Defense Counsel: Your Honor, I’m going to object. This is getting into Rule 404.
The Court: Okay. Yeah. Do you want to rephrase the question? County Attorney: No, but I’d like to respond to the objection, possibly outside the presence —
The Court: No. No. The objection is sustained.
Comity Attorney: Then I’ll rephrase it, if I may. Have you seen the defendant not intoxicated?
Officer Little: Yes, I have.
County Attorney: And what is your opinion of his state that day?
Officer Little: He was intoxicated.

¶39 Clark later moved for a mistrial, arguing Officer Little’s testimony suggested to the jury that he had seen Clark intoxicated on prior occasions, and was an improper reference to “Mr. Clark’s previous run-ins with the police while he was intoxicated.” Clark contends that Officer Little’s testimony constituted improper evidence of prior crimes, wrongs, or acts by the defendant, and argues the court thus erred in denying his subsequent motion for a mistrial.

¶40 In response, the State argues it was merely “eliciting a lay opinion from Officer Little as to whether Clark was intoxicated on” the day of his arrest. The State asserts it “was establishing a foundation which would allow Officer Little to give his opinion as to his perception of Clark” on the day of his arrest, and argues that “[njothing in the cited testimony is evidence of any other crimes, wrongs or acts.” ¶41 We agree. We conclude that the disputed portion of Officer Little’s testimony does not constitute evidence of other crimes, wrongs, or acts pursuant to Rule 404(b), M.R.Evid. Officer Little simply explained that he had previously seen Clark when Clark was not intoxicated. Officer Little made no mention of the circumstances surrounding his prior contact with Clark, and simply made no mention of any other crimes, wrongs, or acts as contemplated by Rule 404(b), M.R.Evid. Based on the foregoing, we hold the District Court did not abuse its discretion in denying Clark’s motion for a mistrial.

ISSUE 4

¶42 Did the District Court err in denying Clark’s motions to set aside the verdict and to dismiss Count 1 of the amended information made on the grounds that the court had failed to arraign Clark on the charges contained within the amended information filed by the State?

¶43 On April 3,1996, the State filed the original information in this case, charging Clark with, among other offenses, two counts of possession of dangerous drugs, methamphetamine, in violation of § 45-9-102, MCA. On October 21, 1996, the State filed a motion to amend the information to consolidate the two counts of possession of dangerous drugs and to change the drug identified in the information from methamphetamine to amphetamine. The State presented its motion to the District Court on October 22,1996, and Clark objected on the grounds that “there is insufficient probable cause to allow the amendment to go forth at this time.” The court advised the State to file an amended affidavit of probable cause, which it did the following day. The court reviewed the amended affidavit, and on October 23, 1996, issued an order granting the State leave to file its amended information. The State filed its amended information that day, thereby charging Clark with criminal possession of amphetamine. Clark was never arraigned on the amended information. He was tried on November 26 and 27, 1996, and found guilty of Count 1 of the amended information, criminal possession of amphetamine.

¶44 On December 30,1996, Clark filed a motion to set aside the jury verdict on Count 1 of the amended information, and to dismiss Count 1 of the amended information on the grounds that the court had erred in failing to arraign him on the amended information. The court denied Clark’s motion in an order dated January 6,1997. The court determined that, because “the Amended Information was merely a change in form,” it was not required to conduct another arraignment. Moreover, the court concluded, “[e]ven if it was a change in substance, the defendant waived this objection by standing trial on the amended information without objection.”

¶45 On appeal, Clark argues that the State substantively amended the original information when it decided to charge him with criminal possession of amphetamine, rather than methamphetamine. More specifically, Clark asserts the fact that “[t]he State was required to prove possession of methamphetamine under the original Information but was required to prove possession of amphetamine under the Amended Information,” demonstrates that an element of the crime charged is different, and that the amendment was a substantive one. Clark also argues “the State was required to prove a different matter under the two Informations,” because it “was required to prove that the substance was methamphetamine under the original Information but was required to prove the substance was amphetamine under the Amended Information.” Because the amendment to the information was one of substance, Clark alleges, the court was required to arraign him on the amended information, and its failure to do so warranted reversal of his conviction for criminal possession of amphetamine.

¶46 The State, in contrast, asserts the amendment to the original information in this case was one of form only and did not alter the elements of the crimes charged. Because the amendment to the original information “was one of form and not of substance,” the State argues, the District Court “did not err by not arraigning Clark on the amended information,” and did not err in denying his motion to set aside the verdict and dismiss Count 1 of the amended information.

¶47 A district court’s grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 151, 930 P.2d 31, 33.

¶48 Pursuant to § 46-11-205, MCA, if the district court grants the State leave to amend the information “in matters of substance,” then “the defendant must be arraigned on the amended information without unreasonable delay and must be given a reasonable period of time to prepare for trial on the amended information.” Section 46-11-205(1) and (2), MCA. Section 46-11-205(3), MCA, provides that:

The court may permit an information to be amended as to form at any time before a verdict or finding is issued if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.

¶49 We have held “that an amendment is one of form and not substance when the same crimes are charged, the elements of the crimes remain the same, the required proof remains the same, and the defendant is informed of the charges against him.” State v. Sor-Lokken (1991), 247 Mont. 343, 349, 805 P.2d 1367, 1371.

¶50 In the present case, the State originally charged Clark with two counts of criminal possession of dangerous drugs, felonies, in violation of § 45-9-102(1), MCA. Count 1 charged that Clark, on or about March 26,1996, possessed methamphetamine, a dangerous drug as defined in § 50-32-101, MCA. Count 2 charged Clark with possessing methamphetamine on or about March 27, 1996, in violation of § 45-9-102(1), MCA. In its amended information, the State merely consolidated Counts 1 and 2, and charged Clark with the possession of amphetamine rather than methamphetamine.

¶51 Section 45-9-102(1), MCA, the statute pursuant to which Clark was charged in both the original and amended information, provides that “[a] person commits the offense of criminal possession of dangerous drugs if he possesses any dangerous drug, as defined in 50-32-101.” Section 50-32-101(6), MCA, defines a “dangerous drugs” as “a drug, substance, or immediate precursor in Schedules I through V set forth in part 2.” Section 50-32-224(3)(a) and (c), MCA, lists both methamphetamine and amphetamine as Schedule II drugs.

¶52 We conclude that the amendment in the present case was one of form only. Although the State altered the information to charge Clark with criminal possession of amphetamine rather than methamphetamine, the criminal offense and the elements which the State was required to prove remained the same. To convict Clark of criminal possession of a dangerous drug, the State bore the burden of proving only that Clark possessed a dangerous drug, as defined by § 50-32-101, MCA. Both amphetamine and methamphetamine qualify as dangerous drugs pursuant to § 50-32-101, MCA. The amendment in the present case was one of form and not substance because the crime charged remained the same, the elements of the crime remained the same, as did the required proof. Based on the foregoing, we hold the District Court did not err in denying Clark’s motion to dismiss and set aside the jury verdict on Count 1 of the amended information.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and NELSON concur.

JUSTICE LEAPHART,

specially concurring.

¶53 I concur with the Court’s resolution of issues 2,3 and 4. As to issue 1,1 agree with the Court’s conclusion that Rule 803(8), M.R.Evid., violates the Confrontation Clause of the Montana Constitution and that Clark’s conviction should be reversed. Accordingly, I would not reach the question of whether Rule 803(8) violates the Due Process Clause.

JUSTICE HUNT

concurring in part and dissenting in part.

¶54 I concur with issues one, two and three of the majority opinion.

¶55 I dissent from issue four of the majority opinion which holds that the District Court did not err when it refused to set aside the verdict and dismiss count 1 of the amended information on the grounds that the court failed to arraign Clark on the charges contained within the amended information.

¶56 The crux of the issue is whether the amendment to the original information was only one of form or whether it was one of substance. If the change was one of substance, then the District Court was required to arraign the defendant on the amended information. Section 46-11-205(2), MCA. I would hold that the amendment was one of substance.

¶57 As the maj ority points out, the test for determining whether the amendment is one of form or substance was set forth in Sor-Lokken (1991), 247 Mont. at 349, 805 P.2d at 1371. Pursuant to that test, an amendment is one of form only if:

(1) The same crimes are charged;
(2) The elements of the crimes remain the same;
(3) The required proof remains the same; and
(4) The defendant is informed of the charges against him.

¶58 In this case the required proof changed when the information was amended. The prosecution was required to prove that Clark possessed a “dangerous drug” as defined by § 50-32-101(6), MCA. That statute in turn defines a “dangerous drug” as any “drug, substance, or immediate precursor in Schedules I through V set forth in part 2.” To prove that Clark possessed a dangerous drug, the prosecution was thus required to produce evidence specifically identifying the substance he allegedly possessed. The evidence necessary to prove he possessed methamphetamine differs from that necessary to prove that he possessed amphetamine, regardless of the fact that both substances constitute “dangerous drugs.”

¶59 In fact, had the prosecution not amended the information, and had it produced evidence that Clark possessed amphetamine rather than methamphetamine as identified in the original information, the prosecution would have failed in its burden of proof. For that very reason, the prosecution sought to amend the information to accurately identify the substance as amphetamine. For that same reason, once the information was amended, the District Court specifically instructed the jury that to convict the defendant of criminal possession of dangerous drugs, the prosecution must prove that the “defendant possessed amphetamine.”

¶60 So yes, while the majority is correct in its view that in either case the prosecution must prove that Clark possessed a “dangerous drug,” it is also true that the prosecution bears the burden of specifically identifying the substance he possessed in order to prove that the substance constitutes a “dangerous drug” within the meaning of the statute. Because the required proof changes, depending on substance possessed, it is my view that the amendment to the information was one of substance.

¶61 For this reason, I would reverse the District Court and hold that it was required to arraign Clark on the charges contained within the amended information.

¶62 I concur in part and dissent in part.

JUSTICE TRIEWEILER concurs in the forgoing concurring and dissenting opinion.

      . Just prior to the start of trial, the State moved to dismiss the charge against Clark for failure to carry proof of insurance. The court granted the State’s motion, and ordered Count 6 of the amended information dismissed.


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE GRAY,

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    MARY K. BEAN, an individual, Petitioner and Appellant, v. MONTANA BOARD OF LABOR APPEALS; MONTANA DEPARTMENT OF LABOR AND INDUSTRY; COMMUNITY NURSING, INC., d/b/a VILLAGE HEALTH CARE CENTER and DOES 1-10, inclusive, Respondents and Respondents.
    No. 97-482.
    Submitted on Briefs January 15, 1998.
    Decided September 3, 1998.
    1998 MT 222.
    55 St.Rep. 927.
    290 Mont. 496.
    965 P.2d 256.

      For Appellant: Donald V. Snavely, Snavely Law Firm, Missoula.
    For Respondent: Maureen L. Hall, Garlington, Lohn & Robinson, Missoula (Village Health Care Center); Daniel B. McGregor, Department of Labor and Industry, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Mary Bean (Bean), an unemployment compensation claimant, appeals from an order of the Fourth Judicial District Court, Missoula County, denying judicial review and affirming the decision of the Board of Labor Appeals (BOLA) which adopted the findings of fact and decision of the appeals referee denying Bean unemployment benefits. We reverse and remand for further proceedings consistent with this Opinion.

¶2 We restate the following issues raised on appeal:

¶3 1. Are hearsay reports of witnesses describing alleged misconduct committed by Bean at work admissible into evidence as “business records” of her employer?

¶4 2. Has consideration of these inadmissible hearsay reports deprived Bean of her constitutional rights to confront and cross-examine adverse witnesses?

¶5 3. May a decision denying a claim for unemployment compensation benefits, on the ground that a claimant committed “willful misconduct” during the course of her employment, be based entirely on inadmissible hearsay reports from witnesses unavailable for confrontation or cross-examination at the hearing?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 The underlying facts of this case are set forth in our opinion, Bean v. Board of Labor Appeals (1995), 270 Mont. 253, 891 P.2d 516 (Bean I):

Bean’s employment as a licensed practical nurse with Community Nursing, Inc., doing business as Village Health Care Center (Village Health), ended with her discharge on March 22,1993, allegedly for failure to improve her conduct and inappropriate criticism of Village Health’s operation. After her discharge, Bean filed for unemployment insurance benefits with the Montana Department of Labor and Industry (Department). A Department deputy twice denied Bean’s claim on the basis that she was discharged for misconduct and, as a result, was ineligible to receive benefits. Bean appealed the decision to an appeals referee (referee).
A telephonic hearing was held on June 29, 1993; the parties were at separate locations in Missoula and the referee was in Helena. The referee subsequently issued written findings of fact and a decision concluding that Bean was discharged for misconduct and, thus, ineligible for unemployment benefits. Bean appealed to the BOLA. The BOLA, following a fifteen minute telephonic argument presented by Bean’s counsel, issued a one-paragraph decision adopting the referee’s findings of fact and decision.
Bean petitioned the District Court for judicial review of the BOLA’s decision. The District Court denied her petition and affirmed the BOLA’s decision denying unemployment benefits. Bean appealed].

Bean I, 270 Mont. at 255-56, 891 P.2d at 518. On appeal, we concluded that the BOLA violated § 24.7.306(1), ARM, when it adopted the referee’s findings and decision without considering the entire record before it. We reversed and remanded the case to the District Court for an order remanding the case to the BOLA for reconsideration and redetermination of Bean’s appeal. Bean I, 270 Mont. at 260, 891 P.2d at 520.

¶7 On remand, the BOLA ordered that a de novo hearing be held with all parties and witnesses personally present and subject to confrontation and cross-examination. On April 18, 1996, this hearing was held in Missoula. Bean and a number of witnesses who had worked for Village Health during Bean’s period of employment testified including Suzanne Denend, Director of Nursing, and Susan Allen, Social Service Director. In addition to oral testimony, a number of documents were admitted into evidence including Bean’s March 22, 1993 Termination Notice, March 22, 1993 Termination Report with an attached March 18,1993 incident report (Incident Report), as well as other prior disciplinary reports, including those referenced in Bean’s Termination Notice.

¶8 The Incident Report was prepared by Allen on March 18,1993, and was based, not on Allen’s own personal knowledge, but on information she received on March 18, 1993, from llene Rici (Rici), the daughter of a Village Health resident, concerning Bean’s alleged misconduct. On March 18,1993, Allen telephoned Rici to discuss her complaint concerning a separate March 17, 1993 incident where Rici’s mother was found unattended in Village Health’s parking lot. As indicated in the Incident Report, during this inquiry, Rici also explained she had spoken with Bean immediately after the March 17,1993 incident and was concerned about Bean’s derogatoiy comments regarding Village Health and Bean’s discussion of other residents’ personal information such as what they did for a living. After Allen provided Denend with the Incident Report, Denend terminated Bean’s employment.

¶9 Bean objected to the admission of the Incident Report and testified that she never made such remarks concerning Village Health and was not sure she had ever spoken with Rici. Additionally, Bean objected to the admission of the other prior disciplinary reports. Despite Bean’s objections, the referee admitted all offered documentary evidence, specifically admitting as “business records” Bean’s Termination Notice, Termination Report and the Incident Report attached thereto, as well as the other prior disciplinary reports concerning Bean’s misconduct. In particular, the referee admitted the Incident Report into evidence as a business record based only on Allen’s testimony regarding the Incident Report. Rici, who provided Allen with the information contained in the Incident Report concerning Bean’s alleged misconduct, never testified; in fact, Village Health never subpoenaed her as a witness.

¶10 On June 14,1996, the referee entered a written decision again denying Bean unemployment compensation benefits on the ground that she was discharged for misconduct. Bean once again appealed to the BOLA. However, on September 26,1996, after a brief oral argument and without consideration of new evidence, the BOLA affirmed the decision of the referee, adopting the decision as its own. Pursuant to § 39-51-2410, MCA, Bean petitioned for judicial review with the Fourth Judicial District Court, Missoula County. On May 23, 1997, the District Court denied Bean’s petition for judicial review and entered an order affirming the decision issued by the referee and adopted by the BOLA. From this decision, Bean appeals.

DISCUSSION

¶11 As an appellate tribunal, we review the decision of the BOLA for any errors of law. Section 39-51-2410(5), MCA. The BOLA’s decision will be upheld if substantial evidence supports it; therefore, we review the decision of the BOLA to determine whether its findings of fact are supported by substantial evidence. Whether substantial evidence supports the BOLA’s decision is a question of law. Jordan v. Craighead (1943), 114 Mont. 337, 343, 136 P.2d 526, 528; Noone v. Reeder (1968), 151 Mont. 248, 252, 441 P.2d 309, 311-12. Our review of questions of law is plenary. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

¶12 To determine whether the BOLA’s findings are supported by substantial evidence, we must first determine what constitutes substantial evidence to support an administrative agency decision. Relying on §24.7.312, ARM, Village Health argues that, in unemployment compensation hearings, evidence is admissible if reasonable people would rely on it in conducting their serious affairs and that the statutory rules of evidence do not govern. We disagree. As we have previously explained, “[although the Rules of Evidence are generally more relaxed in an administrative proceeding than in a court of law, they are not to be relaxed to the point of disregarding due process of law and the fundamental rights of the individual.” Matter of Teaching Certificate of Thompson (1995), 270 Mont. 419, 427, 893 P.2d 301, 305-06 (holding that an administrative agency’s decision may not be based upon inadmissible expert opinion). Consequently, as we explained in Thompson, we must review the BOLA’s findings, adopted in whole from the findings of the referee, “to determine whether they are supported by reliable, probative and substantial evidence in the record.” Thompson, 270 Mont. at 431, 893 P.2d at 308.

¶13 We agree with Bean that to determine whether substantial evidence exists, only admissible evidence may be considered. See Noone, 151 Mont. at 252, 441 P.2d at 311-12. Under § 39-51-2410(5), MCA, the BOLA’s findings must be supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion or, stated another way, enough evidence to justify a refusal to direct a verdict on a factual issue in a jury trial.” Noone, 151 Mont. at 252, 441 P. 2d at 311-12. That is, the decision must be supported by credible, admissible evidence. See State v. Johnson (1978), 177 Mont. 182, 580 P.2d 1387.

¶ 14 Accordingly, we hold that, with respect to agency findings of fact, substantial evidence must consist of admissible evidence. Consequently, testimony that is inadmissible hearsay may not be considered in determining whether substantial evidence exists to support an agency’s findings. Rather, there must be some admissible evidence to establish the foundation of substantial evidence. Therefore, the BOLA’s decision in this case denying Bean unemployment benefits cannot be based upon inadmissible hearsay reports alone.

¶15 Additionally, Bean argues, and the Department concurs, that an employer who contests an unemployment compensation claim bears the burden of proving that the claimant was discharged for employee misconduct. While we have not previously addressed this issue, we note that a majority of states require an employer to bear this burden. See Parker v. St. Maries Plywood (Idaho 1980), 614 P.2d 955, 958 (listing jurisdictions placing the burden of proof on the employer). After joining the majority of jurisdictions adopting this burden of proof, the Idaho Supreme Court explained:

The employer is in a unique position to know the reasons for his employee’s discharge and access to the facts relating to that discharge will be more readily obtained by the employer than the employee. Further, as a practical matter, the task of proving the existence of employee misconduct will be much easier for the employer than would be the employee’s task of disproving a charge of employee misconduct. The employee may not always know what the employer’s reasons were for discharging him.

Parker, 614 P.2d at 959. We agree with the sound rationale of the Idaho Supreme Court. Therefore, we hold that an employer who challenges the eligibility of an unemployment compensation benefits claimant on the ground that the claimant was discharged for employee misconduct bears the burden of proving that the employee was in fact discharged for employee misconduct. See Parker, 614 P.2d at 959.

¶16 1. Are hearsay reports of witnesses describing alleged misconduct committed by Bean at work admissible into evidence as “business records” of her employer?

¶ 17 In the case at bar, Village Health submitted evidence to the referee consisting of not only the March 18, 1993 Incident Report attached to Bean’s Termination Report but also other disciplinary reports pertaining to prior alleged incidents of misconduct including those referenced in Bean’s Termination Notice. However, the sole reason given for Bean’s termination in her Termination Report was her “[flailure to deport [her]self in a professional manner [with] family member” and attached thereto was the March 18, 1993 Incident Report. Additionally, Village Health’s own witnesses, Suzanne Denend and Susan Allen, testified that the other incidents of Bean’s misconduct had been corrected and did not form the basis of Bean’s discharge; rather, Bean’s discharge was based solely on the incident described in the March 18,1993 Incident Report. Despite Bean’s objections, the referee admitted all of these documents into evidence.

¶18 In Galbreath v. Golden Sunlight Mines, Inc. (1995), 270 Mont. 19, 23, 890 P.2d 382, 385, we explained that, in a wrongful discharge action, any reasons for discharge other than those set forth in the discharge letter are irrelevant, and, thus, inadmissible. Consequently, we hold that evidence of incidents of misconduct allegedly committed by Bean other than that described in the March 18,1993 Incident Report was irrelevant, and, therefore, improperly admitted into evidence. Accordingly, our review in the instant appeal is limited to a determination of whether the Incident Report alone constitutes admissible and substantial evidence supporting the BOLA’s decision to deny Bean unemployment benefits.

¶19 Bean argues that the Incident Report constituted hearsay evidence that was not admissible under Rule 803(6), M.R.Evid., the business records exception to the hearsay rule. Village Health responds that the Incident Report was prepared in the ordinary course of Village Health’s business, and, therefore, was admissible under the business records exception. While the Department concedes that denial of unemployment benefits cannot be premised solely on inadmissible hearsay evidence, it argues that such is not the case here. Rather, the Department adopts Village Health’s argument that the Incident Report was admissible as a business record. We disagree.

¶20 Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), M.R.Evid. Hearsay evidence is not admissible unless it falls within an exception to the hearsay rule. Rule 802, M.R.Evid. One exception to the hearsay rule is the “business records exception” which provides:

Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time of the acts, events, conditions, opinions, or diagnosis, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make a memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ... The term “business” as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.

Rule 803(6), M.R.Evid. Business records are presumed reliable for two general reasons: 1) employees generating these records are motivated to accurately prepare these records because their employer’s business depends on the records to conduct its business affairs; and 2) the routine and habit of creating these records also lends reliability. These reasons are lacking when a document is prepared for use outside normal business operations, especially for use in litigation. United States v. Blackburn (7th Cir. 1993), 992 F.2d 666, 670, cert. denied, 510 U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993) (“adhering] to the well-established rule that documents made in anticipation of litigation are inadmissible under the business records exception”).

¶21 In Palmer v. Hoffman (1943), 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, the United States Supreme Court held that an accident report made by a railroad engineer was not admissible as a business record because the report was “not a record made for the systematic conduct of the business as a business.” Palmer, 318 U.S. at 113, 63 S.Ct. at 480, 87 L.Ed. 645. Rather, the Supreme Court concluded that the report’s “primary utility [was] in litigating, not in railroading.” Palmer, 318 U.S. at 114, 63 S.Ct. at 481, 87 L.Ed. 645. The Supreme Court explained:

Any business by installing a regular system for recording and preserving its version of accidents for which it was potentially liable could qualify those reports under the Act [28 U.S.C. § 695], The result would be that the Act would cover any system of recording events or occurrences provided it was “regular” and though it had little or nothing to do with the management or operation of the business as such. Preparation of cases for trial by virtue of being a “business” or incidental thereto would obtain the benefits of this liberalized version of the early shop book rule. The probability of trustworthiness of records because they were routine reflections of the day to day operations of a business would be forgotten as the basis of the rule. Regularity of preparation would become the test rather than the character of the records and their earmarks of reliability acquired from their source and origin and the nature of their compilation.

Palmer, 318 U.S. at 113-14, 63 S.Ct. at 480-81, 87 L.Ed. 645 (citations omitted).

¶22 The language of Rule 803(6), M.R.Evid., supports the rationale of Palmer. That is, Rule 803(6), M.R.Evid., not only requires that the reported activity be a regularly conducted business activity, but the rule precludes admission of regularly prepared business records when “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” In this instance, the Incident Report lacks trustworthiness for a number of reasons, and, consequently, does not qualify as a business record.

¶23 First, the Incident Report, like the accident report in Palmer, was not prepared as a part of Village Health’s routine business activity of administering nursing services to elderly residents. Rather, the Incident Report was prepared as a part of Village Health’s activity of disciplining employees, an activity incidental to its main business activity. Moreover, the Incident Report led to Bean’s discharge for cause. Consequently, the very nature of the Incident Report indicates that Village Health prepared it in anticipation of potential litigation over Bean’s discharge such as a wrongful discharge claim or an unemployment compensation claim. Any documents created in anticipation of litigation do not qualify as business records because they lack sufficient guarantees of trustworthiness. See Hunter v. City of Bozeman (1985), 216 Mont. 251, 700 P.2d 184. See also Palmer, 318 U.S. at 113-14, 63 S.Ct. at 480-81, 87 L.Ed. 645, and Blackburn, 992 F.2d at 670.

¶24 Second, even if the Incident Report qualified as a business record, it still would be inadmissible because the Incident Report contained the hearsay statement of Rici, a third party who was not charged with accurately reporting events to Village Health. See e.g. Romano v. Howarth (2nd Cir.1993), 998 F.2d 101, 107-08 (holdingthat a nurse’s progress notes were not admissible under the business records exception to the hearsay rule because while the nurse’s business duty to accurately record plaintiff’s behavior ensured the accuracy of her notes, it did not guarantee the accuracy of information provided to her by others not under a similar duty). See also Gray v. Busch Entertainment Corp. (2nd Cir. 1989), 886 F.2d 14, 15-16 (holding that the statement of a patron’s daughter in an amusement park’s first aid report concerning the cause of the patron’s accident was not admissible under the business records exception to the hearsay rule because the patron’s daughter was not acting in the ordinary course of business). Although Allen, the Village Health Social Service Director who prepared the Incident Report, may well have accurately recorded the information Rici provided her, this does not ensure that Rici, who was not employed by Village Health and who was admittedly upset with Village Health’s treatment of her mother, accurately reported the information about Bean to Allen. Moreover, certain testimony indicated that Allen wanted Bean’s employment terminated. This testimony further degrades the trustworthiness of the Incident Report. See Romano, 998 F.2d at 108 (explaining that even if a person had a business duty to accurately report incidents, the trustworthiness of a business record prepared by that person is still questionable if that person had motive to report falsely).

¶25 Village Health cites State v. Edmundson (1990), 246 Mont. 241, 805 P.2d 1289, to argue that, just as the reports in Edmundson were properly admitted as business records, the Incident Report in the case at bar was properly admitted as a business record. However, we agree with Bean that Edmundson is not on point. Edmundson involved the revocation of Edmundson’s conditional release from the Montana State Hospital at Warm Springs and placement with a treatment program in a group home after Edmundson violated the conditions of his release by engaging in certain prohibited behavior such as violating his curfew and behaving in a threatening manner toward women. At the revocation hearing, the State offered proof of Edmundson’s behavior through the testimony of only one witness, the director of the treatment program. The director’s testimony was primarily based on reports describing Edmundson’s behavior made by Edmundson’s primary therapist. The district court allowed this testimony despite Edmundson’s hearsay objections. Edmundson, 246 Mont. at 242-44, 805 P.2d at 1290-91.

¶26 We affirmed the district court’s decision to admit these hearsay statements under the business records exception of Rule 803(6), M.R.Evid. Edmundson, 246 Mont. at 245, 805 P.2d at 1292. We explained that the recorded entries that the program director testified from were made in the regular course of business of the group home by Edmundson’s primary therapist, who had a duty to record any reported behavioral problems in Edmundson’s file, and while the incidents were fresh in the therapist’s mind. Thus, we concluded that the records were trustworthy and qualified as business records under Rule 803(6), M.R.Evid. Edmundson, 246 Mont. at 244, 805 P.2d at 1292.

¶27 As such, Edmundson is a good example of the distinction made in Palmer that, to be admissible, business records must report information concerning a primary business activity of the business for which there is a duty and a motive to report truthfully. Consequently, unlike the reports in Edmundson, the Incident Report in the case at bar does not qualify as a business record because, as we explained previously, the Incident Report was prepared as a part of an activity incidental to Village Health’s main business activity of administering nursing services to elderly residents and in anticipation of litigation. Furthermore, the information contained in the Incident Report was provided by a third party who was not employed by Village Health, and, thus, had no duty to report accurately to Village Health.

¶28 Finally, we also agree with Bean that the admission of the Incident Report as a “business record” violated the applicable rules of the BOLA. Specifically, § 24.7.312(1), ARM, allows consideration of evidence “on which responsible persons are accustomed to rely in the conduct of serious affairs.” While many types of hearsay evidence are admissible under recognized exceptions to the hearsay rule, see Rules 803 and 804, M.R.Evid., other types of hearsay do not fall within these exceptions because they generally do not satisfy the essential rationale of the hearsay rule that to be admissible, the hearsay evidence must bear circumstantial guarantees of trustworthiness. Consequently, hearsay not falling within one of the hearsay exceptions is not the type of evidence “on which responsible persons are accustomed to rely in the conduct of serious affairs.” Moreover, § 24.7.301(c), ARM, which summarizes the procedural rights of unemployment compensation claimants, states that all hearings must be fair and conducted in accordance with procedural safeguards which include cross-examination; adequate evidence to support pertinent and necessary findings of fact; and substantial evidence as revealed by the files, records and evidence taken at the hearing to support it.

¶29 In light of the foregoing, we conclude that the Incident Report lacks any circumstantial guarantees of trustworthiness, and, therefore, does not qualify as a business record pursuant to Rule 803(6), M.R.Evid. Accordingly, we hold that the Incident Report constituted inadmissible hearsay and was improperly admitted into evidence.

¶30 2. Has consideration of these inadmissible hearsay reports deprived Bean of her constitutional rights to confront and cross-examine adverse witnesses?

¶31 Bean argues that her constitutional rights to confront and cross-examine adverse witnesses were violated because all of the critical evidence admitted against her consisted of inadmissible hearsay statements made by persons who did not testify at her eligibility hearing. Relying on Richardson v. Perales (1971), 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842, Village Health simply responds that Bean failed to subpoena any adverse witnesses, and, consequently, she cannot now claim that her due process rights were denied. The Department concurs with Bean that she must be afforded the right to confront and cross-examine witnesses against her, but disagrees that Bean was not afforded that right in this case. Rather, the Department adopts Village Health’s argument and rationale that Bean cannot now claim her due process rights were violated when she herself failed to call certain witnesses. Again, we disagree.

¶32 Unemployment compensation claimants are entitled to due process before being denied those benefits. See Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. See also California Dept. of Human Resources Development v. Java (1971), 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666, and § 24.7.301(c), ARM (setting forth the procedural rights of unemployment compensation claimants). In Goldberg, the Supreme Court held that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg, 397 U.S. at 269, 90 S.Ct. at 1021, 25 L.Ed.2d 287. Furthermore, the Supreme Court stated that “[t]his Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases,... but also in all types of cases where administrative ... actions were under scrutiny.” Goldberg, 397 U.S. at 270, 90 S.Ct. at 1021, 25 L.Ed.2d 287 (citation omitted). Similarly, we have “been zealous to protect these rights from erosion” not only in criminal cases but in civil and administrative cases as well. See State v. Clark, 1998 MT 221, 964 P.2d 776. See also Bonamarte v. Bonamarte (1994), 263 Mont. 170, 866 P.2d 1132; Taylor v. Taylor (1995), 272 Mont. 30, 899 P.2d 523; and Matter of B.C., (1997), 283 Mont. 423, 942 P.2d 106 (a series of cases limiting the use of live telephonic testimony in contested factual proceedings due to the inability of the parties to confront and cross-examine adverse witnesses in person).

¶33 As we explained in Bonamarte, 263 Mont. at 174, 866 P.2d at 1134:

Requiring a witness to testify personally at trial serves a number of important policies and purposes. A witness’ personal appearance in court:
1. assists the trier of fact in evaluating the witness’ credibility by allowing his or her demeanor to be observed firsthand;
2. helps establish the identity of the witness;
3. impresses upon the witness, the seriousness of the occasion;
4. assures that the witness is not being coached or influenced during testimony;
5. assures that the witness is not referring to documents improperly; and
6. in cases where required, provides for the right of confrontation of witnesses.

¶34 In addition to constitutional due process protections, Rule 611(e), M.R.Evid., provides that “[ejxcept as otherwise provided by constitution, statute, these rules, or other rules applicable to the courts of this state, at the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine.” In Bonamarte, we noted that the right of confrontation, long provided for in criminal cases, is also required in civil cases under Rule 611(e), M.R.Evid. Bonamarte, 263 Mont. at 174, 866 P.2d at 1134. Furthermore, we explained in Taylor that Rule 611(e), M.R.Evid., also applies to administrative proceedings pursuant to § 2-4-612(2), MCA, which provides: “Except as otherwise provided by statute relating directly to an agency, agencies shall be bound by common law and statutory rules of evidence.” Taylor, 272 Mont. at 34, 899 P.2d at 525.

¶35 In Bonamarte, we concluded that the integrity of the fact finding process at trial is undermined where the parties do not have the opportunity to confront and effectively cross-examine each other or the witnesses and where the fact-finder has no opportunity to observe the parties and the witnesses. Bonamarte, 263 Mont. at 175, 866 P.2d at 1135. Moreover, we stated that “[t]he opportunity to observe a witness is so critical to judicial control and effective cross-examination that its denial is manifestly prejudicial.” Bonamarte, 263 Mont. at 178, 866 P.2d at 1137 (citation omitted). However, rather than adopting a per se rule precluding the use of telephonic testimony, we employed a balancing test that permitted the use of telephonic testi-

mony only under special or exigent circumstances. Bonamarte, 263 Mont. at 177, 866 P.2d at 1136.

¶36 With the significance of the right to confrontation and cross-examination in mind, we now turn to the issue of whether Bean’s due process rights were violated when she was not afforded the opportunity to confront and cross-examine witnesses adverse to her claim. To decide this issue, we employ the traditional due process balancing test set forth in Mathews v. Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. The United States Supreme Court explained in Mathews that “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334, 96 S.Ct. at 902, 47 L.Ed.2d 18. Therefore, to determine what specific procedures are required to satisfy due process, three factors must be considered: 1) the individual’s private interest affected by official government action; 2) the risk of erroneous deprivation of the interest; and 3) the government’s interest in maintaining fiscal and administrative objectives. Mathews, 424 U.S. at 334-35, 96 S.Ct. at 903, 47 L.Ed.2d 18.

¶37 First, Bean’s appeal involves her claim for unemployment compensation benefits. Unemployment benefits replace income used by Bean for essential living expenses, and, therefore, are of the highest order. See Mathews, 424 U.S. at 340, 96 S.Ct. at 905, 47 L.Ed.2d 18. Additionally, Bean’s private interest in her professional reputation as a licensed practical nurse is affected. Second, a risk exists that these private interests will be erroneously deprived if a referee considers hearsay reports of witnesses unavailable to testify, and, consequently, unavailable for confrontation or cross-examination. In contrast, simply to require that all adverse witnesses be present and subject to confrontation and cross-examination would ensure that Bean’s due process rights were not violated.

¶38 Case in point is Bean’s current appeal. As set forth in Bean’s Termination Report and confirmed by the testimony of Denend and Allen, the Incident Report at issue in this case provided the sole basis for Bean’s termination. The Incident Report contained Rici’s hearsay statement accusing Bean of making derogatory comments about Village Health and breaching the confidentiality of other residents. Even though Rici was the one witness who had knowledge of Bean’s alleged misconduct, Village Health never subpoenaed her to testify, and, consequently, Bean was unable to confront or cross-examine her. Despite this, the referee admitted the Incident Report into evidence. As a result, Bean was denied her right to confrontation and cross-examination, and, therefore, was denied due process.

¶39 Third, to require the presence of all adverse witnesses for live confrontation and cross- examination at this hearing would place no further economic burden on the State. Rather, the economic burden of producing witnesses adverse to Bean’s claim would fall only on Village Health, who, as an employer contesting Bean’s eligibility for unemployment benefits, bears the burden of proving Bean was discharged for willful misconduct. See Parker, 614 P.2d at 958. In this regard, we note that even the BOLA recognized the importance of providing unemployment compensation claimants with the opportunity to confront and cross-examine adverse witnesses when it ordered, on remand, that a de novo hearing be held with all parties and witnesses personally present and subject to confrontation and cross-examination. Yet, the BOLA ignored its own order when it adopted the decision of the referee denying Bean unemployment benefits based entirely on hearsay reports of witnesses who were unavailable to testify, and, consequently, were not subject to confrontation or cross-examination.

¶40 Finally, we note that while Village Health and the Department do not dispute that Bean was entitled to due process, they merely argue that, because Bean failed to subpoena witnesses adverse to her claim, she cannot now assert that she was denied due process. In support of this argument, Village Health cites Richardson v. Perales (1971), 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842. In Richardson, a social security disability insurance claimant argued that reliance on the written reports prepared by his examining physicians, who did not testify at his eligibility hearing, violated his due process rights because he was not afforded the opportunity to confront and cross-examine them. The United States Supreme Court held that the claimant was not deprived of his right to confrontation and cross-examination in part because the claimant did not exercise his right to subpoena these physicians under 20 CFR § 404.926, and, thereby, provide himself with the opportunity for cross-examination. Richardson, 402 U.S. at 402, 91 S.Ct. at 1428, 28 L.Ed.2d 842.

¶41 We agree with Bean that Village Health’s argument under Richardson, in effect, attempts to improperly shift the burden of proof to Bean to disprove Village Health’s allegations of her misconduct. The disability insurance claimant in Richardson bore the burden of proving his entitlement to social security disability benefits. Therefore, the Supreme Court held that the claimant’s own failure to subpoena witnesses adverse to his claim did not deprive him of his due process rights. However, in the case at bar, Bean does not bear such a burden. Rather, as we previously held, because Village Health contests Bean’s eligibility for unemployment benefits, it bears the burden of proving that Bean was discharged for willful misconduct. Parker, 614 P.2d at 958. Consequently, when the referee allowed Village Health to submit the hearsay statements of witnesses with personal knowledge of Bean’s alleged work misconduct without requiring that these witnesses testify in person at Bean’s eligibility hearing, Bean was denied her right to confront and cross-examine these witnesses. Accordingly, we hold that Bean’s due process rights were violated.

¶42 3. May a decision denying a claim for unemployment compensation benefits, on the ground that a claimant committed “willful misconduct” during the course of her employment, be based entirely on inadmissible hearsay reports from witnesses unavailable for confrontation or cross-examination at the hearing?

¶43 On the basis of our discussion in Issues 1 and 2, it is clear that the BOLA decision is not supported by substantial, admissible evidence. Rather, all of the evidence Village Health introduced to prove Bean’s alleged misconduct was based on inadmissible hearsay reports. First, because the Incident Report was the sole reason given for Bean’s termination, we explained that, under Galbreath, all other prior disciplinary reports concerning Bean’s alleged misconduct introduced by Village Health were irrelevant and improperly admitted into evidence. Furthermore, the Incident Report itself was improperly admitted into evidence under Rule 803(6), M.R.Evid., the business records exception to the hearsay rule, because the report lacked any guarantees of trustworthiness. Moreover, Bean’s due process rights were violated when she was denied her right to confront and cross-examine witnesses adverse to her unemployment compensation claim. Therefore, we again reverse and remand to the District Court for entry of an order remanding this case to the BOLA for a trial de novo to allow Bean the opportunity to confront and cross-examine all witnesses adverse to her claim and to afford an appeals referee the opportunity to observe the parties and witnesses in order for it to make a determination on the issue of Bean’s eligibility for unemployment compensation benefits.

¶44 Reversed and remanded for further proceedings consistent with this Opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.

JUSTICE GRAY,

concurring in part and dissenting in part.

¶45 I concur in the Court’s opinion on issues 2 and 3 and in the result the Court reaches in issue 1, namely that the Incident Report was inadmissible hearsay because it lacked sufficient guarantees of trustworthiness to render it admissible. I disagree with both the substance of the Court’s discussion about whether the Incident Report is a business record and the necessity of beginning to split hairs about what is and what is not a business record for Rule 803(6), M.R.Evid., purposes.

¶46 Rule 803(6), M.R.Evid., provides that records, reports and the like which are made at or near the time of the events at issue are not excluded by the hearsay rule ¿/they are kept in the course of a regularly conducted business activity and it was the regular practice of that business activity to make the record or report, unless “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” This is the so-called “business records exception” to the hearsay rule. In my view, the Court’s suggestion that the Incident Report is not a “business record” ignores the actual wording of the Rule and also ignores the reality that personnel records — including complaints about employees — are regularly kept and serve legitimate business purposes which have nothing to do with anticipated litigation. The Incident Report at issue clearly was kept in the course of a regularly conducted business activity and it was the regular practice of the business to make the report. No more need be said about that portion of Rule 803(6), M.R.Evid. Indeed, in my opinion, it is neither necessary nor wise to engage in the unproductive exercise of trying to determine how closely related a purported business record is to the main business activity of the enterprise in discussing and applying this Rule.

¶47 Nor is it fair to suggest that, because this Report ultimately led to Bean’s discharge, it was prepared in anticipation of litigation and, as a result, is not a “business record.” Businesses operate through their employees. Moreover, a business like Village Health, which is — in the Court’s words — in the “routine business activity of administering nursing services to elderly residents,” can hardly remain in business without competent and courteous employees who discharge the services in a manner acceptable to both the elderly residents and their visiting loved ones. A complaint about an employee, written up into an Incident Report, is an integral part of the business activity as it enables the business to better provide the services for which it is engaged by training and counseling its employees and, where necessary, disciplining them for conduct which does not measure up to expectations. I would conclude that the Incident Report is a business record as defined in Rule 803(6), M.R.Evid.

¶48 Having done so, I would then conclude, as has the Court, that the Incident Report is not admissible because it lacks sufficient guarantees of trustworthiness. That is the appropriate focus of our inquiry here and a resolution of the issue before us under that portion of Rule 803(6), M.R.Evid., would avoid the confusion and distraction I fear the Court’s analysis of the “business record” portion of the Rule will create in future cases.

¶49 For these reasons, while I disagree with part of the Court’s analysis of issue 1,1 join in the result it reaches on that issue.