Illinois Domestic Violence Cases - Admissibility of 9-1-1 calls

In a domestic violence case, whether it's an Order of Protection, a Civil No-Contact Order, a Restraining Order, or a criminal charge of domestic violence, admissibility of evidence is important.  In particular, officers, dispatchers, and 9-1-1 call tapes can make up a big part of the case, and the testimony.

But, how do you get those tapes into evidence?  If the person isn't there to testify about what happened, it's hearsay and it's not admissible.  Furthermore, in Crawford v. Davis, 541, U.S. 36, 53-54 (2003), the U.S. Supreme Court talked about the inadmissibility of evidence as hearsay when it's "testimonial" or created for the purposes of litigation.  


And the argument has been made that 9-1-1 calls are testimonial because they are given by an individual who is being questioned by an agent of law enforcement, i.e., a dispatcher who answers the phone at the police department.  However, the U.S. Supreme Court determined in Davis v. Washington, 547 U.S. 813 (2006), that 9-1-1 calls are not "testimonial" when the person is frantic, is calling for help for an immediate emergency, and is not calmly answering questions put forth by an agent of law enforcement for the purposes of future litigation.  The U.S. Supreme Court held that it's one thing to calmly answer questions in an interview, but it's quite another when a person is screaming into the phone for help because someone is trying to hurt them, or someone in their presence.  Id.

In Illinois, the First Circuit held that a 9-1-1 call, pursuant to the Supreme Court's ruling in Davis, did not constitute "testimonial hearsay" when the contact with the dispatcher was volunteered for the purpose of initiating police action or criminal prosecution.  People v West, 311 Ill.App.3d 28 (1st Dist. 2005).

Also remember that such testimony can be admissible under the "excited utterance" hearsay exception, as well as the "business records" exception.  It can also be admissible under the "past recollection recorded" hearsay exception.   In a custody case, or an Order of Protection case, there are few things that sway a judge more than hearing a 9-1-1 call in which a frightened individual is reporting an incident of violence.

Hearsay: Marion County & Jefferson County, Illinois

It's something everybody says they know about, but few people understand.  The court defines hearsay as an "out of court statement offered for the truth of the matter asserted."  What does that mean in plain language?  It means that if you testify as to what someone else said, that other person must be available to testify as to what they said.

An example that is used all the time in divorce cases:  if you testify about what your child told you about getting hit by your ex, your child will have to tell the judge about being hit.  Why?  Because you're not wanting the judge to believe you, you're wanting the judge to believe the child was hit.  You're offering up a statement, made out of court, for the truth of that statement, i.e., the child was, in fact, hit.  So, unless that child is available to testify to being hit, and to be asked questions by the other side, you won't be able to testify that your child was hit by your ex.

This is why lawyers HATE hearsay!  This is one of the easiest, yet most difficult things we learn as trial attorneys.  And so many lawyers and judges just don't understand the concept.  Plus, there is no guarantee that we can convince a judge to understand and allow that testimony.  

So, just understand the difficulties.  See my earlier post about children testifying in court.