Tuesday, May 20, 2014

911 texting has begun, but can the text messages be used as evidence?

As of last Thursday 5/15/14, major U.S. cell phone carriers support text messaging to 911 dispatch. Most call centers across the country are not equipped the handle the messages but, interestingly, Maine’s have been ready since last summer. The FCC site links to this document showing where you can text 911.


Of course, just because you can, doesn’t mean you should. Something I read said that 911 texts will not get the same priority network treatment as 911 voice calls and so messages might be delayed during high traffic times. Also, it’s got to be difficult work for a 911 dispatcher to get the needed information by texting with you. If it’s a life or death situation, the consequences could bring new meaning to the term YOLO. As the FCC says, don’t do it:
  • Always contact 911 by making a voice call, if you can.
  • If you are deaf, hard of hearing or have a speech disability, use a TTY or a telecommunications relay service, if possible.
  • Remember - in most cases now, you cannot reach 911 by sending a text message.

How the evidence comes in at trial

For me, the most interesting question is how 911 text exchanges might become evidence. Prosecutors often use 911 recordings at criminal trials but they can only be used if they meet some criteria. Generally speaking, the statements need to qualify as “excited utterances” (seriously, that’s the term) and the statements need to be “non-testimonial.”

The hearsay rule will generally prohibit any statements made outside of trial from being recited or replayed for the jury. But some statements are allowed in under exceptions to that rule. 911 calls commonly qualify as excited utterances (M.R. Evid. 803(2)) if:
  1. A startling event occurred; 
  2. the hearsay statement related to the startling event; and 
  3. the hearsay statement was made while the speaker was under the stress of excitement caused by that event. 
The Maine Supreme Court has said that this analysis means the trial judge must consider a variety of factors, including:
the nature of the startling or stressful event, the amount of time that passed between the startling event and the statement, the declarant's opportunity or capacity for reflection or fabrication during that time, the nature of the statement itself, and the declarant's physical and emotional condition at the time of the statement.
Even if the statement qualifies as an excited utterance, it should still be excluded unless the contents are non-testimonial. Non-testimonial statements are those where:
  1. the caller is speaking about events as they are actually happening;
  2. it would be clear to a reasonable listener that the victim is facing an ongoing emergency;
  3. the nature of the questions asked and answered are objectively necessary and elicited for the purpose of resolving the present emergency; and
  4. the victim's demeanor on the phone and circumstances at the time of the call evidence an ongoing emergency.
So the question of whether 911 records come in at trial depends in part on what was said, but also on how it was said. The law requires the court to consider the person’s stress level, excitement, emotional condition and demeanor while making the statements. All that is pretty hard to judge from a text message.  Also, there’s always the question of who is actually sending the text message; at least with a 911 call, there is a voice that someone can identify. 
These questions are not that new and courts have dealt with similar issues for other kinds of electronic evidence. Many 911 text messages might qualify under hearsay exceptions and be admitted as evidence. But in some cases, the bare text might not give enough information for the court to decide the threshold issues.
The, the law in Maine is not well developed on text messages and hearsay exceptions. If 911 text messaging catches on, it might force the law to adapt quickly.