Dial-in testimony.

• Author: Friedman, Richard D.
• Position: Admissibility of statements made in 911 calls

For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused--"face to face," in the time-honored phrase--under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (1) But now a new way is developing for witnesses for the prosecution to testify: Call 911.

As we will show, it is now common practice for some prosecutors to prove a crime by offering the recording of a 911 call--that is, a telephone conversation between the alleged victim of the crime or another witness to it and an agent of an emergency assistance service. Similarly, prosecutors often offer evidence of statements made by the caller to a police officer who responded to the call. In this Article, we will describe and explain prosecutors' use and courts' tolerance of this practice. We will then use this phenomenon to explore at a broader level both what we believe are the defects in the Supreme Court's current approach to the confrontation right, as exemplified most recently in its decision in Lilly v. Virginia, (2) and the possibility of reconceptualizing the right in a way that would restore it to its proper place.

Part I of this Article describes the developing practice by which statements made in 911 calls or in follow-up conversations are often admitted at trial to prove the truth of the caller's narration of a crime allegedly committed against him or her. The statements are sometimes admitted for this purpose, we will show, even if the caller does not testify at trial and the prosecution has failed to account for his or her absence--and even if the caller does testify but gives an account fundamentally inconsistent with his or her earlier one.

Part II describes one source of the new practice. Changes in the way that domestic violence is treated by the criminal justice system make a serious official response to 911 calls highly likely. There is a developing public awareness that calls to 911 reporting an alleged crime are in effect reports to law enforcement authorities. Furthermore, prosecutors are more disposed than in earlier times to pursue charges even without the cooperation of the alleged victim. This development is in part attributable to increased judicial receptivity to the victim's out-of-court statements, but it also enhances the evidentiary value of those statements. Our discussion in Parts I and II will present information from around the nation, and will also draw on the experience of one of us (McCormack) in domestic violence cases in Washtenaw County, Michigan.

We will then turn to doctrine. Part III discusses the early history of the confrontation right. It shows that the right emerges out of the basic concept, central to the common law system among others, that testimony must be given under prescribed conditions, among which are that it must be under oath and in the presence of the accused. What is now known as the excited utterance exception to the rule against hearsay at first developed in adherence to this principle, but then departed from it; that exception now provides the principal doctrinal basis for exempting from the rule against hearsay statements made in 911 calls or to officers responding to those calls. Furthermore, under the current jurisprudence of the United States Supreme Court, if a statement satisfies the hearsay rule, then the Confrontation Clause is unlikely to create any obstacle to admission.

Part IV then discusses theoretical implications. We will argue that the doctrine admitting these statements fails on its own terms, for these statements are not particularly reliable. More basically, we will argue that current confrontation doctrine, geared to improving the reliability of evidence, is fundamentally misconceived and fails to reflect the basic values underlying the Confrontation Clause. We believe that a better source of guidance lies in Justice Breyer's concurring opinion in Lilly--not surprising, perhaps, because that opinion drew heavily on an amicus brief coauthored by the other one of us (Friedman). The confrontation right, we will argue, should apply only to a limited category of out-of-court statements, but as to those it should be deemed categorical, not subject to balancing or ringed with exceptions. We will examine three different categorical approaches. We conclude that the values and history underlying the Confrontation Clause are best reflected by a theory that focuses on whether the out-of-court statement, if admitted at trial, would amount to the functional equivalent of testimony. This approach, unlike the others, leads to the proper treatment of 911 calls.

1. THE PHENOMENON: THE DIAL-IN TRIAL

   In this Part we will describe the phenomenon at the heart of this Article, the developing practice in which statements made in 911 calls or in follow-up conversations with police officers are often admitted at trial to prove the truth of the caller's narration of a crime allegedly committed against him or her. We will show that these statements are sometimes admitted even if the caller does not testify at trial and the prosecution has failed to account for his or her absence. Similarly, they are sometimes admitted if the caller does testify but, even without surprising the prosecution, gives an account fundamentally inconsistent with his or her earlier one.

   In 1995, the State of Ohio successfully prosecuted one Jerry Lee for domestic violence. (3) As noted by the trial court, "The only evidence offered by the state at trial was a tape recording of the victim's telephone call to 911 and the testimony of one of the two police officers responding to the scene." (4) In the tape recording, the victim, Lee's wife Kathy, says that her husband stabbed her door, hit her, and tried to throw her out the door. (5) When police officers arrived at the scene, two minutes after receiving a dispatch, the couple's eighteen-year-old son told them, "I think my father is killing my mother." (6) Within five more minutes, Kathy made additional statements to one of the officers, including one that Jerry had tried to stab her. (7) The trial court admitted all these statements, along with one of the officer's description of evidence he found at the scene--slits in the door and slashes in the bedroom mattress--indicative of a physical struggle. (8)

   Neither Kathy Lee nor the son testified, and the State made no attempt to account for their absence. The court was not troubled by this. "[P]roceed[ing] to trial without the presence of the alleged victim" in domestic violence cases was not only "[i]n keeping with the new policy of the Hamilton County Prosecuting Attorney" but consistent with the practice "[i]n many jurisdictions across the country." (9) The court pointed out that "[n]o rule of law requires that a battered partner testify against a once loved one for the state to proceed on a charge of domestic violence." (10)

   That is true, of course. The fact that the prosecution need not present the victim's testimony is demonstrated most vividly by murder cases, in which, by definition, the victim does not testify at trial. (11) But in a case like Lee, though the prosecution does not present the victim as a live witness, it does present her allegations as to what occurred. And the court found this approach perfectly acceptable. "Sometimes," the court said, "all that is necessary is the testimony of a responding officer and a transcript of the 911 tape." (12) And in the court's view, Jerry Lee's was such a case. The court had little difficulty in determining that each of the offered statements fit within the hearsay exception for excited utterances. Therefore, in light of recent Supreme Court doctrine (which we discuss in Part III), the defendant's Sixth Amendment right to "be confronted with the witnesses against him" did not pose a problem. (13) In effect, the police officer was the complaining witness, and Lee's opportunity to cross-examine him satisfied his confrontation right. (14) And this was true without any need to inquire into whether Kathy or her son were--unlike a murder victim-available to testify in court; availability, the court said, was "not an issue." (15)

   In short, the Lee court regarded this as "a textbook case of prosecuting the crime of domestic violence without the presence of the victim at trial." (16) And the court surely was right in that respect. Jerry Lee's case is not an anomaly, but rather representative of what has become a common phenomenon. Increasingly, across the country prosecutors are proving their cases by using statements taken by 911 operators and police officers responding to crime scenes instead of the witnesses themselves. There is no limit to the type of crime for which prosecutors use such evidence--they have used it to prove cases of arson, felon in possession of a firearm, and murder (17)--but they have found it to be a particularly valuable tool in domestic violence cases.

   Prosecutors are proving cases in this way because it pays off. Though some defendants tried on the basis of this type of evidence have been acquitted, (18) prosecutors have won many convictions, and when those convictions have been appealed they have almost always been upheld. (19)

   In some cases, prosecutors use this type of evidence in addition to the live testimony of the caller, essentially to bolster or corroborate that testimony. (20) More problematic, in some cases prosecutors use the evidence because, though the caller testifies at trial, she does so in a way that is unhelpful to the prosecution. It "has become lamentably common in cases of domestic violence" that the complainant's...