How to Challenge a "9-1-1" Call from an Alleged Victim in a Domestic Violence Case in California
This legal guide explains: (a) how a criminal defense attorney or Domestic Violence defendant in California can exclude from evidence a "9-1-1" call/recording made by the alleged victim; and (b) how to challenge that recording if the judge does admit it into evidence.
How the O.J. Simpson Murder Trial Changed the Way D.A.'s Prosecute Domestic Violence Cases in CASince 2005, I have defended hundreds of clients in domestic violence (*DV*) cases (male and female, straight and LGBTQI) in Los Angeles County, and in at least one-third of those cases, the alleged victim either initially declines to press charges, or later changes his or her mind and refuses to testify against the defendant. Prior to the O.J. Simpson murder trial in 1995, this would have virtually guaranteed that the prosecutor outright dismissed the domestic violence charges, or would have at least offered the defendant a too-good-to-pass-up plea deal.
But prosecutors have changed their approach to DV cases when the trial revealed that in the years leading up to her June 1994 murder, Nicole Brown-Simpson had repeatedly called 9-1-1 to report that O.J. had physically abused her. But in most of those instances, Nicole chose not to press charges, and so -- except in one instance in 1989 when he plead no contest to domestic battery -- O.J. was never arrested or prosecuted for domestic violence. As a result of the trial, the Los Angeles County District Attorney*s Office decided to prosecute domestic violence charges even if the alleged victim declined or refused to cooperate.
Since then, in these *non-cooperation* cases, prosecutors have been forced to rely on circumstantial evidence of domestic violence, including evidence of the alleged victim's injuries, testimony from the arresting police officer(s), and, if applicable, the 9-1-1 tape from the alleged victim him/herself. Not surprisingly, a recording of the alleged victim crying hysterically, for example, while explicitly stating that the defendant had just physically abused him or her, could serve as powerful evidence against the defendant. Indeed, these recordings can result in convictions that fall under California Penal Code section 273.5(a) PC (*corporal injury to a spouse*) or California Penal Code section 243(e)(1) PC (*domestic battery*).
How to Exclude the 9-1-1 Recording When the Alleged Victim Fails or Refuses to Testify at the TrialTime and time again, I have faced this identical scenario in DV cases in L.A. County courts: i.e., where the alleged victim, for whatever reason, decides not to testify against the defendant at trial, but where the prosecutor nevertheless decides to proceed based, at least in part, on the 9-1-1 recording.
Fortunately, I have experienced significant success in filing Motions to Exclude the 9-1-1 tapes based on my argument that the recordings are inadmissible hearsay evidence. Hearsay evidence is defined as an out-of-court statement that is offered to prove the allegation at issue. (See California Evidence Code section 1200.) For example, a witness testifies in court that a bystander informed him or her that the defendant had confessed to the alleged crime. However, unless that bystander also appears as a testifying witness in court, then the bystander's statement may be ruled inadmissible hearsay.
So unless the hearsay statement falls under a very limited number of exceptions, that out-of-court statement may be ruled inadmissible to prove the defendant*s guilt under California Evidence Code section 1200. The reason for this exclusion policy is founded on one of the most fundamental rights a defendant has: to face his or her accuser in court, and to cross-examine that accuser. More specifically, hearsay statements are often considered by judges to be inherently unreliable because they are not made under oath in a court of law, and the hearsay speaker is not subject to cross-examination.
Thus, a hearsay exclusion motion can be a highly effective defense tool.
Even if the 9-1-1 Recording is Hearsay, It May Still Be Admitted Under Certain CircumstancesOn March 8, 2004, the United States Supreme Court ruled in Crawford v. Washington, 541 U.S. 36 (2004), and reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment. The Court confirmed its previous rulings that cross-examination is required to admit prior testimonial statements (i.e., those made to law enforcement personnel) of witnesses who are unavailable to testify.
However, the Supreme Court also determined that where NON-testimonial statements are involved, a judge in any state or federal court could use his or her discretion on a case-by-case basis to determine the reliability of the statements. In other words, so long as a non-testimonial statement by an unavailable witness falls under a traditional hearsay exception (i.e., it bears "adequate indicia of reliability") or has "particularized guarantees of trustworthiness", then that statement could be admitted into evidence. Unfortunately, the Crawford Court did not explicitly define the term "testimonial".
This ambiguity was resolved two years later by the U.S. Supreme Court's seminal decision in Davis v. Washington, 547 U.S. 813 (2006). There, the Court ruled that so long as 9-1-1 recordings made in criminal cases were not testimonial -- which the Court now explicitly defined as statements NOT intended to be used in a future criminal prosecution -- then the recording could be admissible. Such recordings would include 9-1-1 calls made in regard to an "ongoing emergency", as opposed to merely statements regarding a past event or crime. In other words, so long as the caller was not acting as a "witness", the recording was not "testimonial" in nature.
How to Attack a *Non-Testimonial* 9-1-1 Recording In Your Motion to ExcludeBased on Davis, then, your Motion to Exclude should be carefully tailored to argue that EITHER the SOLE or PRIMARY purpose of the 9-1-1 recording was to provide a narrative of a past event and NOT to address an ongoing/present emergency. Accordingly, your motion should seek to attack the motive of either the caller, the 9-1-1 operator, or both.
For example, you could argue that at the time of the call, the defendant had left the scene of the alleged crime AND that the caller was not in need of medical treatment; therefore, there was no "ongoing emergency" to be addressed. As a result, you would argue that all the information given during the call either had the intent (i.e., by the caller/alleged victim) and/or practical effect of providing evidence for a potential future criminal prosecution. Such information would include the identity of the alleged assailant (again, if he or she had left the scene and, therefore, did not pose an "ongoing" threat to the caller or any third party, including the police).
Conversely, or additionally, you could argue that the 9-1-1 operator*s questions were geared towards obtaining this evidence and not towards addressing any ongoing emergency. In sum, so long as you emphasize that the caller's information and/or the operator's questions were solely or primary focused on past "as opposed to then-ongoing" events, you may be able to convince the judge to grant your motion and exclude the recording. Bottom line: paint the caller as a "witness" and the operator as an "investigator" by emphasizing objective facts (i.e., from the perspective of a reasonable person) over subjective speculation.
What You Should Do to Attack the 9-1-1 Recording if Your Motion to Exclude is DeniedIn the event the judge denies your motion, however, you should then seek to introduce collateral evidence relating to the 9-1-1 call that calls into question the reliability and/or accuracy of the information provided to the operator. For example, you could introduce evidence at trial that the (unavailable) alleged victim provided information to on-scene police officers indicating that he or she was actually the aggressor and not the victim.
I used this very same approach to obtain a *not guilty* verdict in a domestic violence jury trial at the LAX Courthouse where my client's wife, the alleged victim, did not take the stand. The City Attorney's Office proceeded with the case even though my client's wife had always maintained that the DV charges were false, and that she would never testify against her husband because he was innocent. (The C.A.'s Office was the prosecuting agency as the crime was charged as a misdemeanor and not as a felony, which would have been handled by the D.A.'s Office.) So the Assistant C.A.'s only evidence at trial was the 9-1-1 tape, photos, and the arresting officer's testimony.
After the judge admitted the tape into evidence, I was able to introduce counter-evidence, including my client's own testimony, that proved he had acted in self-defense that night, and that therefore the 9-1-1 tape only told part of the story. Fortunately, the jury agreed with me and quickly returned with the not guilty verdict, thereby allowing my client to walk out of court a free man with no criminal record.