10th Circuit Holds Entire 911 Call May be Admitted Without Parsing Each Individual Sentence
Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
So, let’s say that a declarant — Dana — makes a 911 call. Should the court assess each sentence in the call to determine whether it constitutes a “present sense impression” under Rule 803(1)? Or can the court simply assess the call as a whole. This was the question addressed by the Tenth Circuit in its recent opinion in United States v. Lovato, 2020 WL 949942 (10th Cir. 2020).
In Lovato,
On March 3, 2018, a man called 911 to report that he witnessed two men in a Honda shoot at another car. The caller followed the Honda and dialed 911 within “two to three minutes” of observing the gunfire.2 During the approximately thirteen-minute 911 call, the caller discussed the shooting, his continuing observations of the Honda and its occupants, and his safety, often in response to the 911 operator’s questions.
In assessing on appeal whether the entire 911 call was a present sense impression, the Tenth Circuit observed that
No authority creates a blanket requirement that a court must individually analyze each statement within a broader narrative under the present sense impression exception. Indeed, we have affirmed the admission of entire 911 calls as present sense impressions without requiring such a particularized inquiry. See United States v. Allen, 235 F.3d 482, 493 (10th Cir. 2000) (concluding that a 911 tape as a whole “was admissible as … a present sense impression”)….Even though some circumstances may require a court to conduct a more particularized analysis—and we are certainly not saying that the district court would have abused its discretion had it done so here—those circumstances are not present in this case.
In response, the defendant noted that in United States v. Williamson, the Supreme Court held that courts must assess whether each statement in an alleged “statement against interest” under Federal Rule of Evidence 804(b)(3) is self-inculpatory and thus admissible. In response, the Tenth Circuit held that
the rationale behind separating out non-self-inculpatory statements from self-inculpatory ones is based on credibility concerns due to a declarant’s motivation for self-inculpation….Motivation for self-inculpation, however, is not at issue here because the 911 caller in this case was a non-party observer, detached from any allegations of wrongdoing.
In this context, the district court did not need to disassociate each statement within the call to ameliorate credibility concerns. We therefore decline to extend the principle in Williamson to this case because the 911 caller’s status as a disinterested observer eliminates the need to assess whether self-serving motives tainted the credibility of individual statements within the 911 call….Thus, we conclude that the district court did not abuse its discretion solely by considering the admissibility of the 911 call as a whole, rather than parsing each individual statement within the call.
Finally, the Tenth Circuit held that
no substantial change in circumstances occurred during the call. When a significant, intervening event or substantial change in circumstances occurs between statements, Rule 803(1) may require a court to treat a declarant’s statements differently. See Jackson, 124 F.3d at 618 (observing that a witness’s statement made after police intervened and gained control of the scene may not qualify as a present sense impression even though earlier statements did qualify). Here, the caller witnessed a shooting, called 911, and followed the Honda during the call with no interruption or police intervention. The caller maintained focus on the Honda and its occupants for the entirety of the discussion. Although the discussion shifts between related topics, the call continually focused on an ongoing stream of observations, which supports the admissibility of the call as a whole.