"I was convicted by a taperecording": The admissibility of 9-1-1 tapes.

It sometimes happens in the context of a domestic violence situation that the accuser calls 9-1-1 to either request help or to report an alleged attack. What happens if the accuser refuses to testify and is unavailable for trial? Can the prosecutor introduce the recorded 9-1-1 tape? Two recent cases have addressed this issue, one from the United States Supreme Court, Davis v. Washington, rendered June 19, 2006, and an earlier decision from Division One of the Arizona Court of Appeals, State v. King, rendered April 20, 2006.

The answer depends upon whether the statements are considered testimonial or not. If testimonial in nature, then the defendant has a right to cross-examine the witness against him/her pursuant to the Sixth Amendment to the U.S. Constitution's Confrontation Clause. In Davis v. Washington, the U.S. Supreme Court held that the 9-1-1 phone statements were not testimonial and that they could be used as evidence. The Court reasoned that a 9-1-1 call is primarily designed to describe current circumstances requiring police assistance. In the case, the accuser on the recording was speaking of events as they were actually happening, rather than describing events that had occured hours earlier. Moreover, the Court reasoned that the accuser was facing an ongoing emergency and that the statements elicited were necessary to enable the police to resolve the present emergency rather than simply to learn what had happened in the past. Finally, the Court looked to the level of formality in the conversation, citing that the accuser provided frantic answers over the phone, in an environment that was not tranquil, or even safe. Thus, the Court found that the circumstances of the accuser's interrogation objectively indicated that its primary purpose was to enable police assistance to meet an ongoing emergency and, therefore, she was not acting as a witness or testifying.

In the recent Arizona case, State v. King, Division One of the Arizona Court of Appeals was also deciding whether a 9-1-1 recording should be admitted into evidence. The Court stated that a primary factor in determining if a hearsay statement is testimonial is whether “a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime.” The Court cited factors to consider in evaluating whether a 9-1-1 call should be treated as testimony. First, each case should be analyzed on a case-by-case basis. Second, 9-1-1 calls that are primarily “loud cries for help” are nontestimonial. These nontestimonial statements are usually made in the context of immediate danger either from physical injury or threat of injury or harm. Third, 9-1-1 calls that are made for the primary purpose of identifying a suspect or reporting evidence in an alleged crime that has already occurred will usually be testimonial.

Further information on the right to confrontation can be found at the very informative blog: http://confrontationright.blogspot.com/ (Professor Richard D. Friedman, University of Michigan, Right to Confrontation blogspot). The opinion in Davis v. Washington can be read at http://www.supremecourtus.gov/opinions/05pdf/05-5224.pdf. The opinion in State v. King can be found at http://www.cofad1.state.az.us/opinionfiles/CR/CR040269.pdf.

Further information on Arizona Criminal Law can be found at www.win-law.com.