Supreme Court’s Absurd Ruling on Nature of 911 Calls
If a witness were to get on the stand and say that he saw someone discharge a firearm, and this is is what it looked like, the testimony would obviously be testimonial: the witness describes the alleged crime and the alleged description of the person engaging in the crime. Defense counsel would then be able to cross-examine the witness.
Makes sense, right?
Not for the North Carolina Supreme Court.
In State v. McKiver, _____ N.C. _____ , _____ S.E.2d _____(June 9, 2017), a 911 caller reported a dispute. The caller stated that some sort of argument was ensuing, described the man and the place (Penn Street, Long Leaf Park subdivision, Wilmington, N.C.), and that the man was brandishing a firearm. The “description” was only that the man was African-American. When the 911 call was reversed at the request of the officer, officers were provided a more detailed description, that it was a black male in a “ ‘light plaid shirt.’ ” The officer then re-confronted a man that he had interaction with earlier and arrested him.
Notably for the analysis of the case officers CALLED BACK DURING THE INVESTIGATION PHASE, AND THE 911 CALLER, IN RESPONSE TO THEIR QUESTIONS PROVIDED FURTHER INFORMATION.
The general principle of the Confrontation Clause of the U.S. Constitution requires that a witness be present for cross examination (confrontation) during trial.
In this case, the 911 caller was not present at trial (though obviously available because police had reversed the 911 call and, therefore, could have gotten the caller into court – but that’s another argument for another day). The State sought to present the call under an exception to the Confrontation Clause – that the testimony was not “testimonial,” that is that it was the caller’s reaction to what he or she saw (the caller saw the activity and called 911 – a reaction), and not for the truth of the matter asserted (that the defendant matched the description).
Common sense alone shows that this is a specious argument for several reasons: (1) the officer initially confronted the defendant during the investigation phase when the only description was that the suspect was a black man; (2) the further information was obtained during the investigation phase of the matter; (3) that the police, not the 911 caller, gathered the further information as part of the investigation phase; and (4) as a result of the additional information the police arrested the defendant.
For these reasons, the subsequent 911 call was obviously testimonial – it was not the reaction of the caller, but rather the police initiating a call to gather for information for their investigation.
Common sense, right?
Not for the Supreme Court. They ruled that the subsequent description was, indeed, non-testimonial and, therefore not subject to the Confrontation Clause. The legal and logical gymnastics the Court had to exert to get to this point are irrelevant when they run so counter to common sense.