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911 Call Regarding Ongoing Emergency Not Barred by Confrontation Clause


People v. Johnson, 2010 WL 4371367 (Cal.App. 1 Dist.)

Early this month, the Court of Appeal for the First District of California held that a victim's out-of-court statements to a 911 operator while driving away from the scene of the shooting to report 1) that defendant had fired a gun at the victim in the defendant's home, 2) the description of the defendant, 3) the firearm used, and 4) the defendant's address were non-testimonial and therefore not rendered inadmissible by the Sixth Amendment confrontation clause.

Shortly after her husband had discharged a firearm, the victim called 911 while driving away to report that her husband had shot at her. The victim failed to appear at trial and the court admitted audiotape of her 911 call. The court convicted the husband of possession of a firearm by a felon and he appealed arguing that the ruling was in violation of his Sixth Amendment right to confrontation.

In  Crawford v. Washington, the United States Supreme Court reinterpreted previous decisions regarding the confrontation clause and concluded that the confrontation clause applies only to a particular subset of out-of-court statements admitted for their truth that effectively "serve as a substitute for testimony at trial." Crawford (2004) 541 U.S. 36, 51. The confrontational clause barred these "testimonial" statements unless the declarant appeared at trial or was legally unavailable and the defendant had a prior opportunity for cross-examination.

After the cases of Davis v. Washington and Hammon v. Indiana, the Supreme Court stated, "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis, 547 U.S. 813, 822.

In this situation, the Court of Appeal decided that the victim was in flight from the scene of the crime and the crime did not have to literally be ongoing at the time of the call. Rather, the victim was upset and her call to 911 reflected a need to assess an ongoing emergency. Consequently, the statements made during the 911 call were non-testimonial and therefore admissible at trial.

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