On This Day 13 Years Ago, 9-1-1 Call for Help found to be Non-testimonial

On November 2, 2015, The Waco Court of Appeals, in Kearney v. State, 181 S.W.3d 438 (Tex. App.—Waco 2005), found that statements made during a call to 9-1-1 to report an armed robbery in progress were not testimonial. The owner of a Western Union store heard gunshots and saw a masked man waving a gun demanding money. The owner ran out the back door to a neighboring house and called 9-1-1. The tape of the 9-1-1 call was later admitted at trial. The defendant, Kearney, argued that the call should not be admitted because under the Sixth Amendment, he had a right to confront and cross-examine the witnesses against him. The Court of Appeals said that the Kearney would have those rights if the statements made on the tape were testimonial. Because the call was to report a robbery in progress and to summon help, the statements on the call were not testimonial. The Court looked to a Houston Court of Appeals case Ruth v. State, 167 S.W.3d 560 from earlier in the year for guidance on whether statements made to a dispatcher during a 9-1-1 call are testimonial. The Court used the following guidelines from Ruth:

(1) Testimonial statements are official and formal in nature.
(2) Interaction with the police initiated by a witness or the victim is less likely to result in testimonial statements than if initiated by the police.
(3) Spontaneous statements to the police are not testimonial.
(4) Responses to preliminary questions by police at the scene of a crime while police are assessing and securing the scene are not testimonial.

So while not all statements made during a 9-1-1 call may be non-testimonial, it seems that under Ruth and Kearney that a great many would be non-testimonial as most are initiated by a witness or a victim, and not in response to police questioning.

Published by markgoodner

General Counsel & Director of Education, TMCEC

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