Your 911 Call Could be Used as Evidence in Your Criminal Defense Case!
In the cases of Davis v. Washington and Hammon v. Indiana, decided in June 2006, the United States Supreme Court ruled that a 911 call can be used as evidence against a criminal defendant. The usual rule excluding ‘statements made outside of court’ (“hearsay”) from evidence states that evidence which the defendant does not have an opportunity to rebut cannot be used against him. The hearsay rule applies to statements made outside of court, going to the truth of a fact.
The Confrontation Clause of the Sixth Amendment provides that in “all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In a previous case, (Crawford v. Washington (2004)), the court held that “testimonial statements” can only be used as criminal evidence when a witness is not available to testify at trial and the defendant has had an opportunity to cross-examine the witness.
While most hearsay statements (statements made outside of court) cannot be used as criminal defense evidence, there are a number of exceptions. Exceptions apply when a witness is “unavailable” or the statement was made under circumstances making it unlikely that the witness lied. A witness is only unavailable if she is physically unable to attend court; if she is ill, or cannot be found. In the case of a 911 call, not only is the witness unlikely to have lied, the Court said the hearsay rule does not apply because such statements are not made to establish the truth of a past event.
The Davis case involved a 911 call. The victim was arguing with Davis. She called 911, but the call was cut off before she could speak. The 911 operator reversed the call and determined that the victim was involved in a domestic disturbance with the defendant. During the call, the victim told the operator that the defendant is here “jumpin’ on me again.” She then said he is “runnin’ now.”
Davis was charged with felony violation of a no-contact order. The victim did not appear in court. Over the objection of the defendant, the judge allowed a police officer to read parts of the 911 conversation to the jury. Davis was convicted.
The Supreme Court ruled that victim’s statements to the 911 operator were allowable as evidence against Davis. The Court held that statements made with the primary purpose of allowing police to provide emergency assistance are not “testimonial statements.” Such statements are admissible in court. Statements made about a past event, where no such emergency exists, would be considered testimonial statements.
Most statements made to assist police in establishing the truth of a past event will not be admitted as evidence in criminal defense cases. The person making such statements must testify, in court, for herself. Statements made to a 911 operator can be admitted as evidence in a criminal defense case because they are not testimonial in nature.
If you have other questions about 911 calls as evidence in your criminal defense case or anything else regarding your criminal defense rights, speak to a local lawyer as soon as possible.