911 Calls are Testimonial Under Crawford!

The Sixth Circuit held in United States v. Arnold that the 911 calls in question are testimonial and shoudl have been excluded under Crawford. This is a decision in the right direction, applying the straight forward definition of testimonial, the Sixth Circuit stated that because the statements on the 911 calls were made stated that the decisive inquiry as to whether a statement is testimonial is "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Id. [389 F.3d] at 675. The court further stated that a "statement made knowingly to the authorities that describes criminal activity is almost always testimonial." BINGO!

The Arnold panel specifically rejected the "excited utterance" admittance rationale advanced by the US. The question and answer nature of the 911 calls take it outside of the realm of an excited utterance as a logical matter, and the Sixth Circuit held that there was no proof in the record of when the incident that prompted the 911 call had occurred. Because of this, there was no way to tell on the record before it if the incident was close enough in time to the so-called excited utterances.

Full case here: United States v. Arnold (6th Cir. 2005)

http://www.ca6.uscourts.gov/opinions.pdf/05a0269p-06.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.