By: Adam L. Bantner, II
Board Certified Criminal Trial Attorney
You would think that the answer to this question would be a nice and simple yes or no. However, like most things in the law, it’s much more nuanced than a non-lawyer may initially believe. If you’re a lawyer reading this, you know that the answer is “it depends.”
9-1-1 Call Has Confrontation Issues
As an initial matter, the United States Constitution guarantees a criminal defendant the right to “confront” his or her accuser. This was interpreted by the U.S. Supreme Court to require a defendant to have the ability to cross-examine a person who makes testimonial statements. Crawford v. Washington, 541 U.S. 36 (2004). In other words, an out-of-court statement, which is testimonial in nature, is only admissible if the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.
So what is a “testimonial” statement? Again, it’s not as simple as you may initially believe. The courts have developed a “primary purpose” test to determine whether an out-of-court statement is testimonial. If the primary purpose of the statements is to enable law enforcement to meet an ongoing emergency, the statements are not testimonial. 9-1-1 calls made for the purpose of summoning law enforcement to respond to a crime that already occurred or that is in progress are not testimonial by that definition. Davis v. Washington, 547 U.S. 813 (2006). On the other hand, statements taken by police officers in the course of interrogation are “testimonial” and subject to the Confrontation Clause when the circumstances indicate there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events relevant for later prosecution.
As such, most 9-1-1 calls will be deemed non-testimonial and not subject to exclusion under Confrontation Clause analysis. Of course, some portions of any given call may be “testimonial” while others are not. Therefore, a careful analysis of all the statements made during a call should be scrutinized for confrontation issues.
But is the Call Hearsay?
Generally speaking, even if a statement passes Confrontation Clause analysis, it is still subject to exclusion if it is hearsay and does not satisfy any exceptions to the exclusion of hearsay. Fla. Stat. 90.802 holds that hearsay evidence is inadmissible.
Fla. Stat. 90.801 states, in relevant part:
(1) The following definitions apply under this chapter:
(a) A “statement” is:
1. An oral or written assertion; or
2. Nonverbal conduct of a person if it is intended by the person as an assertion.
(b) A “declarant” is a person who makes a statement.
(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
With regards to hearsay evidence, the first determination a court must make is for what purpose is the evidence offered. If it’s offered for the truth of that statement, it is hearsay and inadmissible. If it’s offered for another purpose and the evidence remains relevant, it’s admissible. For example, if a 9-1-1 caller states, “the driver ran a red light before crashing into my vehicle,” that statement, when offered by the State to prove that the defendant ran a red light, is inadmissible unless it satisfies an exception to the exclusion of hearsay evidence. On the other hand, a 9-1-1 caller’s question about whether he needs to remain on scene is not hearsay because it’s not proof of anything relevant to a charge.
As can be seen just from the definitions of hearsay, most statements made to a 9-1-1 operator will be hearsay. Information such as the identity of the perpetrator, what he/she did, what he/she looked like, where the crime occurred, etc. would be offered by the State to prove the content of those statements.
But that doesn’t end our inquiry.
But is the 9-1-1 Call an Excited Utterance?
Fla. Stat. 90.803 defines an “excited utterance” as “A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” This type of statement is not inadmissible into evidence even though the declarant is available to testify at trial.
The rationale behind this exception to the hearsay rule is that a person who is excited as a result of a startling event does not have the reflective capacity essential for conscious misrepresentation. Therefore, statements that are made by a person who is in a state of excitement and has not had the opportunity to engage in reflective thought are considered to be essentially spontaneous and have sufficient guarantees of truthfulness. As long as the excited state of mind is present when the statement is made and there has not been an opportunity to engage in reflective thought, the statement is admissible. Moreover, courts have held that this excited state may exist a significant length of time after the event though no bright line test has been established.
Florida’s appellate courts have offered guidance in determining whether the necessary mental state exists by identifying a host of relevant factors which bear on the determination: the length of time between the startling event and the statement; the age of the declarant; the physical and mental condition of the declarant; the characteristics of the event; and the subject matter of the statements. Of course, the burden of establishing that a subject statement sufficiently meets the conditions so as to be deemed an “excited utterance” is upon the proponent of the evidence. Moreover, if the time between the startling event and the statement is long enough to permit reflective thought by the declarant, the offering party has the burden of demonstrating that the declarant did not actually engage in reflective thought, presumably a difficult burden to meet.
Generally speaking, 9-1-1 calls made at the time of the crime or immediately thereafter will meet the requirements for the excited utterance exception to the bar on admission of hearsay evidence. However, when the call is delayed and the person is no longer under the stress and excitement of the call, it will be excluded.
State v. Gotschall
In State v. Gotschall, 27 Fla. L. Weekly Supp. 475a (Osceola Cty. Ct. July 15, 2019), the trial judge had to consider whether a 9-1-1 call, relaying the theft of a service dog, was admissible into evidence.
The call was made 30 minutes after the alleged crime and relayed information such as the location of the crime, the sex of the assailant, names of witnesses, locations of video cameras, and the victim’s personal identity information.
In an extremely well-reasoned opinion, the Court excluded the evidence. As an initial matter, the court found that the call was non-testimonial because the primary purpose of the call was to meet an on-going emergency and to summon law enforcement to the scene of the crime. However, the court found that the call was hearsay because the prosecutor wanted to use the statements made to prove that, in fact, the assailant was female, that the victim’s dog was stolen from her, and the location of the crime. It further held that the statements were not excited utterances because there was no evidence that the caller was still under the stress of the event and that the caller, in the 30 minutes before the call, did not engage in reflective thought relative to the crime.
Valrico Trial Attorney
Adam L. Bantner, II is a board certified criminal trial law attorney. He is conveniently located in the heart of Valrico and can handle your criminal defense matters in Hillsborough, Polk, and surrounding counties. Give him a call today at 813.397.3965 to set up your free consultation!