Excited Utterance Exception; Admissibility of the 911 tapes; Recent Court of Appeals Decision:

 

Oftentimes in the domestic violence assault cases, the complainant does not actually testify for one reason or another. In such cases, the government attempts to introduce the 911 reporting/call of the complainant in lieu of the substantive evidence of assault.

If the 911 tape recoding does meet the three prong test for admission; then the recording can and will be admitted and relied upon by the trier of the facts albeit the jury or the judge.

The Court of Appeals on August 17, 2017, in Pelzer v. U.S., highlighted and outlined the test of admissibility for the 911 tape and the legal criteria or requirement for admission under the excited utterance exception to the hearsay rule.

Specifically, there must be:

(1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant;

(2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and

(3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.

In this case the defendant was convicted of robbery. The evidence at trial established that he had grabbed a cell phone from the complainant.

The complainant had shortly after the incident reported the details of the robbery to the police officer nearby and later on (about 15 minutes later) when he had got home again called 911 to report his contact information as he had did disclosed that earlier to the police officers.

The trial court admitted the 911 tape into evidence and deemed it to fall under the excited utterance exception.

That there was a “startling event” the robbery and the 911 call was made within “a reasonable proximity” of the event and the complainant’s voice appeared to be still under the influence of the event/robbery.

The Court of Appeals disagreed.

The Court reasoned that the rationale behind the hearsay exception is that the statements made while a person is overcome by excitement or in shock are fundamentally trustworthy precisely because the individual’s powers of reflection has been suspended and thus the utterance is spontaneous and truthful.

Here the complainant may have been still under the starling event when called 911 however not to the degree required for admissibility.   The initial reporting was already made and the call was so provide contact numbers and thus was not deemed to be spontaneous and under a exited state but more reflective and premeditated.

In the domestic violence cases often times the government only introduces the 911 tape of the complainant and the officer’s testimony. Because the admission of tape can make the difference between a guilty verdict or a not guilty verdict – it is critical to ensure the 911 recording are not admitted unless absolutely fall within the purview of the rule and the exception and the record and objection preserved for the appellate review.

Law Offices of David Stein focuses on complex DC Criminal law as well as Family Laws litigation.

Categories: Criminal Defense and Family Law.