How a Six-Minute Period of Time Was Key in Getting a 911 Call Excluded from Evidence in One Maryland Man’s Criminal Case

Winning an argument about the hearsay rule can be something that makes the difference between an acquittal and a conviction. A piece of hearsay evidence may have the potential to sway a jury profoundly. However, the law says that hearsay evidence is generally unreliable and can only be used in a trial under certain, specific circumstances. Putting on your strongest possible defense involved many things, including winning these kinds of arguments about whether certain pieces of evidence are admissible or inadmissible. To get that strongest possible defense, be sure you have an experienced Maryland criminal defense attorney on your side.

What do we mean about hearsay and “special circumstances”? Here’s an example from Annapolis. An anonymous 911 caller reported a shooting. A second anonymous 911 call identified O.J. as being involved, identifying him by his nickname. (The caller stated that “Tooty” was involved, and O.J. was known to go by the nickname “Tutti.”)

At O.J.’s trial, the prosecution asked to enter into evidence that second 911 call. The defense objected, arguing that the call was inadmissible hearsay. The judge sided with the prosecutor and allowed the evidence in. The call was eventually played for the jury and O.J. was convicted.

O.J. appealed, with his main argument being that the 911 call should have been excluded and the jury never should have heard it. O.J.’s argument was that none of the special circumstances for making a piece of (generally inadmissible) hearsay evidence admissible existed in his case. The prosecution argued that two of those special circumstances applied, which were the “excited utterance” exception and “present sense impression” exception.

Timing was key in this defendant’s success

If a person is making an excited utterance or describing his present impression of events that are going on in that moment, then those kinds of hearsay can be used in a criminal trial. The law, however, is very specific about what is – and is not – an excited utterance or a present-sense impression. In order for an utterance to be an “excited” one under Maryland hearsay law, the speaker must be “still in the throes of the ‘exciting event’ and therefore not capable of reflective thought.” In O.J.’s case, the caller on the second 911 call made that call fully six minutes after the alleged shooting. That, according to the law, is enough time to allow for “reflecting thought,” so that 911 call couldn’t be an excited utterance.

The timing issue also defeated the state’s argument that the 911 call was a “present-sense impression.” As the name implies, a statement must describe a present-tense event, not a past-tense one. The description must have occurred during the event or immediately afterwards. “Anything more than a slight lapse of time between the event and the statement will make the statement inadmissible,” according to Maryland law. Given the six-minute time gap, the call was “entirely a narration of past events.” That meant it couldn’t be a present-sense impression and, based on those two conclusions, the 911 call was inadmissible hearsay and should have been excluded from O.J.’s trial.

Successful criminal defenses on television often involve an exciting twist in which the real perpetrator is revealed. In real life, successful criminal defenses rarely look like that. Instead, it’s often about things like winning battles with the prosecution regarding whether a piece of evidence is or is not admissible, including hearsay evidence. To give yourself the strong and persuasive defense you deserve in a case involving an assault or another violent crime, talk to skilled Maryland criminal defense attorney Anthony A. Fatemi, who has been working effectively for many years to represent and protect the rights of the accused. To learn more, contact us at 301-519-2801 or via our online form.

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