High Court Approves of Using 911 Calls as Evidence

The Supreme Court rules that prosecutors may use some recorded 911 emergency calls as courtroom evidence, even if the victim of a crime is not in court for cross-examination.

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At the Supreme Court today the justices ruled that some 911 calls can be used as courtroom evidence in domestic abuse cases even if the victim refuses to testify.

NPR's Ari Shapiro reports.

ARI SHAPIRO reporting:

Domestic violence may include only two witnesses, the alleged abuser and the victim, and there are many reasons a battered woman might choose not to testify, says UCLA law and women's studies professor Christine Littleton.

Ms. CHRISTINE LITTLETON (University of California Los Angeles): They're afraid of retaliation. They're afraid that the children might suffer. They hope that things can work out. They have faith in the relationship.

SHAPIRO: If a woman decides not to speak out, a 911 recording may prove just as incriminating. Consider this one, which comes from the National Center on Domestic and Sexual Violence.

(Soundbite of 911 call)

Unidentified Female: My husband just threw me down the stairs, my face. He just tried to choke me.

SHAPIRO: The Constitution says defendants have a right to confront witnesses who are testifying against them and you can't exactly cross-examine a 911 recording, so the question before the court was whether these recordings can be used as evidence? The court unanimously said they can under certain circumstances. But in a second case, the justices said a battered woman's statement to police after then incident may not be used as evidence. Justice Clarence Thomas dissented from that part of the opinion.

According to Justice Antonin Scalia, who wrote the majority opinion, there's a fundamental difference between a 911 call that's made in an emergency and a statement that a victim makes to police after the danger has passed. In the 911 call, Scalia said, the victim was not acting as a witness. He wrote, “No witness goes into court to proclaim an emergency and seek help.”

He contrasted that with the case involving the police interview. There, Scalia wrote, “such statements under official interrogation are an obvious substitute for live testimony because they do precisely what a witness does on direct examination. They are inherently testimonial.”

Fernando LaGuarda is legal counsel of the National Network to End Domestic Violence, which filed a friend of the court brief. He calls the outcome of these cases a moderated win.

Mr. FERNANDO LAGUARDA (National Network to End Domestic Violence) We didn't get everything that we wanted, but I think it's important the court recognize, at least implicitly, the importance to domestic violence prosecutions of allowing non-testimonial evidence in.

SHAPRIO: Non-testimonial evidence means an accuser is not required to appear in court.

Timothy O'Toole works for the public defender's service in Washington, D.C. The court did not take his side in the case, but he believes the opinion still only allows 911 calls to be admitted under narrow circumstances.

Mr. TIMOTHY O'TOOLE (Public defender, Washington, D.C.): Basically, once the call extended beyond kind of the name, rank, and serial number information I think the court was very careful to make clear that at that point the 911 call itself may not be admissible in evidence without all of the normal trappings of a trial like live witness testimony subjected to cross-examination.

SHAPIRO: Justice Antonin Scalia notes in his opinion that the court was not asked to rule on the admissibility of the entire 911 call, only the part of the call that was played for the jury, the part where the woman identifies her husband as the assailant.

James Wisman(ph) represented the domestic abuse victim on appeal. He says today's ruling does not end the debate over this issue.

Mr. JAMES WISMAN (Lawyer for domestic abuse victim): There will be continuing litigation on those issues, you know, was there an emergency, was this person just describing past events in a way that looks like they're just creating evidence for a trial? Those sorts of questions all will be litigated in every one of these cases, I imagine.

SHAPIRO: While that may be true, the ruling has tipped the scales in favor of allowing these recordings in court.

Ari Shapiro, NPR News, Washington.

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Read the Court's Decision

In a pair of cases, the Supreme Court gave a nod to the difficulties of prosecuting domestic violence cases. The Supreme Court ruled that statements made by crime victims to 911 operators or police during emergencies can be used in court even if those victims do not testify at trial.

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