Getting ready for a DWI trial, and the intitial call came into 911 from a motorist complaining of a reckless driver. After the officer stopped the offender(he observed a couple of small infractions on his own after finding the car), he was able to get some info from the motorist that called. I'm not sure I need the tape admitted into evidence, but it contains good evidence for the state. Can I admit the contents of the tape without the motorist that made the 911 call being required to be present to testify?
Business record exception?
Non hearsay?.....not admitting for the truth of the matter asserted....merely to show the type of call the officer was responding to.
Any other thoughts?
Thanks for your help!
how about excited utterance.
There is some new case law (check out your weekly case summaries) dealing with when statements to police are excited utterance and therefore non-testimonial and admissible
If you don't want to (or can't) bring the caller, you'd still have to prove up the tape with the 911 operator, but I would argue that it's also a present sense impression, also non-testimonial for Crawford purposes (because of course, if you're relating what you're seeing at the time, it's not in response to police questioning later).
I will say this though: if you can get your civilian up to court, do it. Juries REALLY like to hear from people they consider "neutral" - such as a concerned citizen. And, if that person isn't in court, you can bet the defense attorney is going to argue that if it wasn't important enough to the State to bring that person to the jury, or if it wasn't important enough to that person to be here, then that person's statements shouldn't be that important to the jury because the case IS VERY IMPORTANT to the defendant and the State has the burden (a plea for sympathy, but defense attorneys will try this tactic anyway).
I think it's possible for a 911 tape made about a drunk driver could survive a confrontation clause challenge, but it would be erroneous to rely on the rationales given above.
"Excited utterance" - more or less irrelevant under Crawford and Davis. The issue in a 911 call is whether the purpose "is to enable police assistance to meet an ongoing emergency." Davis v. Washington, 126 S.Ct. 2266, 2273 (2006).
"Not in response to police questioning" - This is helpful in getting a court to find that a statement was non-testimonial, but it's far from conclusive. Davis made that clear in footnote 1: "This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial."
As for DWI, an argument could be made that there is an "ongoing emergency." See Cook v. State, 2006 WL 2043874 (Tex.App.-Houston [1st Dist.] 7/20/06). Although the Supreme Court has remanded a few cases post-Davis where the 911 caller was reporting on a situation that was not an emergency to him.
I would hardly say that excited utterance is irrelevant due to Crawford and Davis. They're two separate issues, really. Sure, something might not violate the Confrontation Clause, but it could still be inadmissible hearsay. And something might be admissible under a hearsay exception, but it could still violate the Confrontation Clause. You need to have exceptions to both.
In this case, I'd say the continuing emergency could probably get you past Crawford, and you might have excited utterance and/or present sense impression to get you through hearsay.
Hearsay wasn't the focus of my post. The Confrontation Clause was. And it's because they're "two separate issues" that an excited utterance (as hearsay exception), though relevant to hearsay, should not be part of a confrontation clause analysis.
People have been getting in 911 calls under various hs exceptions for years (ex utt, business record, present sense, etc). But, under the confrontation clause, I think it's harder now when the 911 call is essentially a phone call accusing someone of a criminal offense.
If the tape is admitted only to show probable cause for the stop, you shouldn't have either a confrontation clause or a hearsay issue -- because the tape would not be admitted for it's truth. Vanmeter v. State, 165 S.W.3d 68 (Tex. App. -- Dallas 2005, pet. ref�d) (confrontation clause does not apply to suppression hearing); Davis v. State, 169 S.W.3d 673 (Tex. App. -- Fort Worth 2005, no pet.).
If the tape is admitted to prove the guy was drunk, you can avoid any confrontation issues by getting the declarant to testify. Eustis v. State, 191 S.W.3d 879, 886 (Tex. App. -- Houston [14th Dist.] 2006, no pet.).
See Davis v. Washington, U.S. Sup. Ct. case; June 19, 2006; cite No. 05-5224; TDCAA Weekly Case Summaries for June 23, 2006.
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