911 Calls as Evidence in Michigan Domestic Violence Cases

A recording of a 911 call can be played for the jury in a Michigan domestic violence case if it clears the rules of evidence. Michigan appellate courts have upheld the admission of 911 tapes under the present sense impression and excited utterance exceptions to the hearsay rule, and the U.S. Supreme Court has held that a caller's description of events as they were actually happening in an ongoing emergency is not the kind of statement the Confrontation Clause keeps out.^[1][2]

That does not mean every word on every call comes in. The Domestic Violence Benchbook identifies three issues a court works through: authentication, hearsay, and relevance weighed against unfair prejudice.^[1] A fourth, the right of confrontation, applies when the caller does not testify.^[4]

Step one: proving the recording is what it claims to be

To authenticate an item of evidence, the party offering it must produce evidence sufficient to support a finding that the item is what the party claims it is.^[5] For a recording, the Michigan Supreme Court has said that a tape ordinarily may be authenticated by having a knowledgeable witness identify the voices on it.^[6] The evidence rules also list, as an example, an opinion identifying a person's voice, whether heard firsthand or through a recording, based on hearing the voice at any time under circumstances that connect it with the alleged speaker.^[7]

The threshold is low. The judge decides only whether there is a prima facie showing that a reasonable juror might conclude the recording is what it is claimed to be; a genuine dispute about whether it is authentic is for the jury.^[8] Evidence supporting authentication may be direct or circumstantial and need not be free of all doubt.^[9]

Step two: is the call hearsay?

Hearsay is a statement made outside the current trial that a party offers to prove the truth of what it asserts. It is not admissible unless the rules provide otherwise.^[10] Parts of a 911 recording are not hearsay to begin with:

• Background sounds. In People v Slaton the Court of Appeals held that background noises on a 911 tape were not statements and so did not constitute hearsay.^[11]
• The call offered to explain why police came. In City of Westland v Okopski a tape-recorded 911 call was not barred by the hearsay rule because it was offered to show why the police responded rather than to prove the truth of what was said.^[11]
• The accused person's own voice. A statement offered against a party that the party made is not hearsay.^[12]

When the caller's words are offered to prove what happened, the prosecution needs a hearsay exception. Michigan appellate courts have upheld the admission of 911 tapes under the two exceptions below.^[1]

Present sense impression

A statement describing or explaining an event, made while or immediately after the person perceived it, is not excluded by the hearsay rule, whether or not the person is available as a witness.^[13][14] Michigan adds a requirement: there must be independent evidence of the event. In People v Hendrickson, a 911 call in which the caller said her husband had just beaten her was admitted, and photographs of her injuries taken near the time of the alleged beating were enough corroboration.^[15]

Excited utterance

An excited utterance is a statement relating to a startling event, made while the speaker was under the stress of excitement that the event caused. It must arise out of a startling occasion, be made before there has been time to contrive and misrepresent, and relate to the circumstances of that occasion.^[16]

There is no fixed time limit. The Michigan Supreme Court has said the focus is the lack of capacity to fabricate, not the lack of time, and the question is the possibility for conscious reflection.^[17] Unlike a present sense impression, an excited utterance does not need independent proof of the startling event; the court may consider the statement itself in deciding whether the event occurred.^[18]

	Present sense impression	Excited utterance
Rule	MRE 803(1)[13]	MRE 803(2)[16]
Timing	While or immediately after perceiving the event[13]	While still under the stress of the event; no express time limit[16][17]
Independent evidence of the event	Required in Michigan under People v Hendrickson[15]	Not required under People v Barrett; the statement itself may be considered[18]

Step three: the Confrontation Clause when the caller does not testify

A hearsay exception answers only the hearsay objection. Out-of-court statements are not exempt from confrontation merely because they come within a hearsay exception.^[4] Under Crawford v Washington, a testimonial statement of a witness who does not testify may be used against a defendant only if the witness is unavailable and the defendant had a prior opportunity to cross-examine.^[19]

So the key question for a 911 call is whether the statements on it are testimonial. In Davis v Washington the Supreme Court drew the line this way: statements are nontestimonial when the circumstances objectively indicate that the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency, and testimonial when there is no ongoing emergency and the primary purpose is to establish past events potentially relevant to a later prosecution.^[20] In Davis itself, the statements to the 911 operator were nontestimonial because they described events as they were actually happening in an ongoing emergency.^[2]

The companion case shows the other side of the line. In Hammon v Indiana, statements given to officers at the scene were testimonial because they were made during an investigation of past conduct and there was no emergency in progress.^[21]

A Michigan example: People v Walker

In People v Walker the complainant did not testify. The Court of Appeals held that the content of the 911 call was nontestimonial and properly admitted, because the operator's questioning was directed at getting information to resolve the present emergency. The complainant's statement written down by her neighbor, and her statements to police at the scene, were more like the statements in Hammon.^[3]

The practical lesson of Walker is that a single incident can produce both kinds of statement. A call can also change character partway through: the Davis test turns on whether an emergency is ongoing, and the Supreme Court in Michigan v Bryant declined to decide precisely when an emergency ends.^[20][22] In Davis the Court said a conversation that begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements once that purpose has been achieved, and that trial courts should redact or exclude the portions that have become testimonial.^[23] The same analysis governs what is said to officers after they arrive, which is covered in Hearsay and the right to confront your accuser and Statements to police under MCL 768.27c.

Step four: relevance and unfair prejudice

Like any evidence, a 911 recording can be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury.^[24] If only part of a recording is played, the other side may require the introduction, at that time, of any other part that in fairness ought to be considered with it.^[25]

What a 911 recording can and cannot show

A recording captures tone, timing and background sound in a way a written report does not, and both sides use that. A prosecutor may point to fear in a caller's voice; a defense lawyer may point to what the caller did not say, or to the caller's calm. How much weight the recording deserves is a question for the jury once it is admitted.^[8]

A recording is also often the first account anyone gave. If a witness later testifies differently, any party may use the earlier account to challenge the witness's credibility.^[26] See Recanting: when the accuser changes the story.

Getting the recording

In a pending criminal case, the recording is obtained through discovery rather than a public records request. On request, a party must provide any written or recorded statement, including electronically recorded statements, by a lay witness it may call at trial.^[27] The prosecuting attorney must also provide, on request, any exculpatory information or evidence and any police report concerning the case.^[28] Those duties apply in misdemeanor cases with one adjustment: the witness-statement subrule applies only if the defendant elects to request discovery under it.^[29] The discovery rule does not name 911 recordings, and how long a dispatch center keeps its audio is not addressed in the sources this guide relies on, so an early request is the practical course. See Discovery in Michigan domestic violence cases.

Related questions about 911 calls

• Stopping someone from calling for help can be a separate charge. See Interfering with a 911 call.
• What officers do after the call is covered in What happens when police respond to a domestic call.
• The crime of making a false report requires proof that the person knew the report was false when it was made.^[30] See False report of domestic violence.
• Video from the officers' cameras raises similar questions. See Body camera footage.
• How a case proceeds without the caller in court is covered in When the victim does not come to court.