The Constitution of the United States gives defendants in criminal cases the right to confront their accusers in court. However, the Supreme Court of the United States ruled that in some cases -- specifically, domestic violence criminal cases -- out-of-court statements, including recorded 911 calls, are admissible as evidence and do not violate the defendant's Sixth Amendment rights.

Davis v. Washington

In 2006, the U.S. Supreme Court ruled in Davis v. Washington that a 911 call made asking for law enforcement assistance was not testimonial in nature and therefore not hearsay. This means 911 call recordings are admissible during trial and do not violate the Confrontation Clause of the Sixth Amendment. 

In February 2001, Adrian Davis was arrested after Michelle McCottry called 911 and reported that her ex-boyfriend had hit her with his fists and left. McCottry identified Davis as her attacker in the 911 call to assist law enforcement in locating him to resolve an "ongoing emergency" and not to testify about the crime. Because of this, she was not considered a "witness" to the crime, so she was not required to testify in court and submit to cross-examination under the Sixth Amendment.

At the time of Davis's trial, McCottry was served with a subpoena to testify at trial, but she did not arrive and could not be located. Davis was convicted of misdemeanor domestic battery.

In his Opinion, Justice Antonin Scalia wrote that 911 calls can have a powerful impact on the jury and increase the chances of convictions for defendants who cannot cross-examine their accusers, so the courts must draw a line regarding when 911 call recordings are admissible evidence. These recordings may only be used if they are made when law enforcement is dealing with an emergency, but not later if the call is made during the evidence collection period.

Three Prong Test

For a 911 recording to be used in court, it must meet these three standards:

1. The 911 call is made during a serious occurrence, and the declarant is in a state of physical shock or nervous excitement.
2. The 911 call is made within a reasonably short time after the incident so that the declarant has not had time to premeditate her statement.
3. The circumstances suggest the declarant's remarks are made spontaneously and sincerely.

If a 911 call is made and these three criteria are not met, the call cannot be used as evidence in court.

Have You Been Charged With a Crime in Washington, D.C.?

If you have been charged with a crime in Washington, D.C., your liberty is on the line. In a domestic violence case like Davis v. Washington, the prosecution may argue that you intimidated the complaining witness and therefore forfeited your right to confront your accuser at trial. The criminal defense attorneys at S.L. England, PLLC will argue that you have the right to confront your accuser in court and will prepare the strongest defense on your behalf. Call us today at (202) 572-1020 or contact us online.