Call Me: Northern District Of California Finds Prison Phone Call Is Nontestimonial

A prisoner makes a phone call to his acquaintance. The acquaintance makes incriminatory statements during the phone call, which is recorded. At the prisoner's trial, the acquaintance does no testify, and the prosecution introduces the phone call into evidence under an exception to the rule against hearsay. Does the admission of the phone call violate the Confrontation Clause? According to the recent opinion of the United States District Court for the Northern District of California in Ibarra v. McDonald, 2011 WL 1585559 (N.D. Cal. 2011), the answer is "no."

In McDonald, the facts were as states above, with Alvaro Ibarra being the prisoner/appellant. 

During pretrial motions, defense counsel objected to the introduction into evidence of recordings and transcripts of telephone calls appellant made from the jail. At the beginning of the call appellant made to Miguel Ramos's telephone number, a recording of a cheery female voice announced, "This is a collect call from an inmate at the county jail" and gave instructions about how to accept charges. The voice then said, "This call is subject to monitoring and recording. Thank you for using Evercom." Someone other than Ramos answered the phone and appellant asked for "Miguel." When Ramos came to the phone, appellant started talking, and Ramos immediately told him, "Don't say nothing, nothing on the phone...." Appellant and Ramos then had the conversation that included Ramos telling appellant that he had taken the "things far away."

Ramos did not testify at Ibarra's trial on charges of premeditated murder and assault with a firearm, and the prosecution introduced the recording of the phone call. After he was convicted, Ramos appealed, claiming that the introduction of Ramos' incriminatory statement on the phone call violated the Confrontation Clause. After his appeals in the California state court system were unsuccessful, Ramos filed a habeas petition with the Northern District of California. And, in considering this petition, the court conducted what I think is a required three step analysis:

The first step of this analysis involves a discussion of Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  

The second step requires consideration of Davis v. Washington, 547 U.S. 813 (2004), which held that

Statements are nontestimonial 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. They are 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.

And, the third step consists of a considering the Supreme Court's recent opinion in Michigan v. Bryant, in which it held that

When, as in Davis, the primary purpose of an interrogation is to respond to an "ongoing emergency," its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.

Given all of these considerations, I would have imagined that the Northern District of California would have engaged in an extensive analysis of whether the admission of the phone call violated the Confrontation Clause, but it instead quickly concluded that

In Davis the Supreme Court gave as examples of statements that "were clearly non-testimonial," statements made "unwittingly to a Government informant" and "statements from one prisoner to another," statements that are analogous the Petitioner's statement at issue here....The Court concludes that Petitioner's statements in his telephone call from jail clearly were not intended as a substitute for trial testimony, Michigan v. Bryant, 131 S.Ct. 1155, made with an "eye towards trial,"...and thus were not testimonial. Admission of the conversation did not violate Petitioner's Confrontation Clause rights.

-CM