State v. Powers
In State v. Powers, 124 Wn. App. 92, 99 P.3d 1262 (Wash. Ct. App. 2004), the Washington Court of Appeals weighed in on the testimonial debate by adopting a case-by-case approach to 911 calls. Powers appealed his conviction for violating a domestic violence protection order on the ground that the trial court erred in admitting a 911 recording.
The victim called 911 and informed the dispatcher that Powers was in her home in violation of an order. The police promptly responded, and Powers was apprehended.
On appeal, he argued that the caller's statement to the 911 operator fell squarely within the pretrial statements that declarants would reasonably expect to be used prosecutorially.
The court took note of the "dichotomy between a plea for help and testimonial statements in 911 calls," id. at 1265 (citing Richard Friedman & Bridget McCormack, Dial-In Testimony, 150 U. Pa. L. Rev. 1177 (2002)), and announced:
"We reject the State's request for a bright line rule admitting all 911 recordings because a rule would likely result in the vice Crawford seeks to redress: A "capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude." 541 U.S. at 62, 124 S. Ct. at 1371. Instead, we hold that the trial court, on a case-by-case basis, can best assess the proposed admission of a 911 recording as testimonial or nontestimonial and whether the statement originates from interrogation." (99 P.3d at 1266.)
The record showed that the victim "called 911 to report Power's violation of the existing protective order and described Powers to assist in his apprehension and prosecution, rather than to protect herself or her child from his return." Id.
Accordingly, the call was deemed testimonial.