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July 21, 2006

Is a 911 call admissible evidence?  We talked about Crawford v. Washington earlier this week; that's the US Supreme Court decision which held that testimonial statements against an accused could only be be admitted if the defendant had an actual opportunity to cross-examine the declarant, at trial or otherwise.  Left undecided by Crawford was exactly what constituted a "testimonial" statement.  Is a 911 call "testimonial"?  How about an excited utterance?

The first question was resolved somewhat last month in Davis v. Washingtonwhere the Court laid down a test for determining whether a 911 call was testimonial.  Basically, the statements are nontestimonial if their primary purpose is to obtain police assistance to meet an ongoing emergency. They're testimonial when there's no such emergency, and the primary purpose of the interrogation is to establish past events potentially relevant to later criminal prosecution.

Keep in mind that a single call can have elements of both.  If, for example, a wife calls 911 to report a domestic violence, the husband leaves during the call, and the operator keeps the wife on the phone to get details of what happened, the latter part will probably fall under Crawford.  (This isn't my scenario; it's one given in Davis.)

It's hard to argue that this doesn't represent somewhat of a retreat from Crawford's definition of what constitutes a testimonial statement:  "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

And it might not be unreasonable to suggest that Crawford isn't quite as sweeping as the defense bar initially thought.  There are an awful lot of holes in it.  If the witness testifies at trial, all the prior statements come in, even if the witness can't remember or won't testify about them; opportunity to cross-examine is all that's required.  Keep in mind the opportunity doesn't need to arise at trial.  For example, if there's a hearing on a temporary restraining order in a DV case, you're going to be stuck with the complainant's prior statements if she shows up at the hearing, even if she doesn't say a peep:  you had the opportunity to cross-examine her.  Statements by children of alleged abuse, to parents or medical personnel, are almost surely still going to come in under the hearsay exceptions for "excited utterances" or "statements made for purposes of medical diagnosis or treatment," since it seems fairly clear from Davis that only statements to police are going to be deemed "testimonial."

That's not to suggest that Crawford is meaningless, but if I had to guess, I'd say it's one of those decisions that five years down the road are going to whittled into something less than they initially seemed.

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