911 calls allowed in court, even if accuser won't testify, Supreme Court rules

The 911 call indicated a household in chaos. As a little girl babbled in the background, a woman shrieked for help: "He's here jumping on me again ... he's using his fists." Panting and crying, she then told the operator her abuser had finally gone outside.

"I gotta get my door locked," she shouted, dropping the phone.

Believing they had a strong case, King County prosecutors in 2001 charged Adrian Davis with the felony of violating a restraining order. They planned to use the frantic 911 tape, along with live testimony from Davis' former girlfriend, to convince a jury that he was guilty.

But the night before the trial, the woman disappeared, leaving prosecutors messages that they say indicated she had been threatened into not testifying.

Was it fair for the trial to go on, with the jury hearing from the woman only through her recorded call to a 911 operator?

Monday, the U.S. Supreme Court said yes.

In a 9-0 decision, the justices said Davis' constitutional right to confront his accuser was not violated just because he could not cross-examine her in court.

The ruling clarifies a 2004 decision that barred prosecutors' use of out-of-court statements about a crime made by victims or witnesses who did not actually testify during trial.

Monday's decision permits as evidence the use of emergency statements — ones made to authorities during an emergency, such as a 911 call — even in cases where a victim cannot, or will not, testify in court.

Justice Antonin Scalia wrote the court opinion, saying the woman's statement could be used as evidence. He said a 911 call is ordinarily designed mainly to describe current circumstances requiring police help during an emergency.

King County prosecutors said the decision will make prosecution of certain domestic-violence and child-abuse cases easier.

"911 tapes offer a snapshot of the crime," said Jim Whisman, the King County senior deputy prosecutor who argued the case. "We think the jury should hear them."

Davis was convicted of violating the restraining order after the 911 tape was played for the jury.

A related 8-1 ruling involving an Indiana domestic-abuse case, also made Monday, said statements made later, during a criminal investigation, could not be used if the witness didn't also testify.

Unless, said Scalia, writing for the majority, prosecutors can prove that a defendant intimidated a witness into not testifying. In that case, the defendant's right to confront the accuser is forfeited and even non-emergency statements can be used.

The decisions do not impact a defendant's right to call an accuser as his or her own witness.

In court filings, women's groups argued for a broad interpretation of the law, saying domestic-violence victims and witnesses are often reluctant to testify in court out of fear of reprisal, losing custody of their children or risking their financial stability. "Testifying in court forces a victim to face her terrorizer, retell the trauma ... and endure potentially aggressive cross-examination," they wrote.

Jeffrey Fisher, attorney for Davis, said he was disappointed for his client but that Monday's ruling in the Indiana case is an improvement for defendants because it restricts the use of non-emergency police statements that were heavily relied upon in many courts.

Monday's ruling in the King County case still leaves some unanswered questions, such as what constitutes an emergency. For example, are victims in an emergency situation only during an assault, or half an hour later, or any time they feel threatened?

"That's something we'll have to argue as we go," Whisman said.

Natalie Singer: 206-464-2704 or nsinger@seattletimes.com

The Associated Press contributed to this report, which also includes material from the Los Angeles Times.