Domestic violence is a tragic crime, and because of its unique nature (where an assailant and a victim actually live together), it makes prosecutions very difficult. Women are understandably hesitant to testify against violent men who will, even if convicted, eventually be freed and able to exact vengeance on them and their children. This is why so many domestic violence prosecutions fall through; the victimized women fail to appear in court or press charges.
In a 2006 ruling, the Supreme Court has ruled that it can. Before this ruling, it was difficult to admit these phone calls when the victim herself does not appear in court. This is because of the Sixth Amendment’s Confrontation Clause, which guarantees to a criminal defendant the right to be confronted with the witnesses against him. If a tape was allowed in, but the victim who made the recording was not available for cross-examination by the defendant’s lawyer, this was deemed to violate the defendant’s right to a fair trail.
But now, the Court has set specific guidelines to be used in determining whether some calls are allowed in.
No, only calls which are deemed "not testimonial" in nature can be allowed as evidence.
- A call is "non-testimonial" "when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."
- On the other hand, a statement is "testimonial" "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."
So what does all that mean? Basically, if the call is made "in the moment" of abuse, and the victim is describing the abuse (and the attacker) in order to give the operator (and police) a clear idea of the situation, this is NOT testimonial in nature, and will be admitted:
Non-Testimonial Example: A woman calls 911, telling the operator that her husband has hit her, threatened her children, and is now breaking objects in the living room. Once the man sees her calling 911, he flees, and the caller tells the operator where he went. This call would be non-testimonial in nature (it’s describing current events to help police deal with an emergency), and so everything she said, including the identity of the attacker would be admissible in court. Therefore, even if she does not show up in court, the prosecutor can play the tape in order to get a conviction.
Testimonial Example: A woman calls 911, and tells the operator that her husband had punched her in the face twenty minutes ago, and then left the house. The woman is currently not in any danger, and any description of the identity of the man she gives will be to establish facts relevant to criminal prosecution, and not to help police with an on-going emergency. This call would not be allowed into evidence.
Remember that these distinctions only matter when the witness in question (the one who made the 911 call), does not show up in court. If she DOES show up, then any calls she made are perfectly admissible, regardless of their testimonial nature.
If you are the victim of domestic violence, or are worried about testifying at the trial of your abuser, contacting an attorney specializing in abuse can help allay your fears, tell you what options are available to battered women, and possibly how to obtain a restraining order.
If you are accused of domestic violence, then you should contact a family lawyer immediately to protect your legal rights and find out more about what evidence can be used against you.