Drug crimes in Massachusetts can raise 6th Amendment Confrontation Clause issues just as in other types of criminal offense. A recent decision from the 5th Circuit Court of Appeals demonstrates the issues that arise for Massachusetts criminal defense lawyers in interpreting their client’s Sixth Amendment right of confrontation.

The case of United States v. Polidore, from the 5th Circuit involved a series of drug deals on the same street location, a nearby individual made two separate anonymous calls to 911 reporting the apparent drug activity and a description of a PT cruiser which appeared to be involved in the exchanges. Police were soon dispatched to the scene, where they found an unoccupied PT cruiser that fit the description given in the calls. Upon closer inspection, police noticed three unmistakable rocks of crack cocaine that had been placed in the driver’s side compartment. Police then watched the car until the owner returned. This instigated a short chase, which resulted in the eventual arrest of the cruiser owner.

During the trial, portions of the initial 911 calls were used to exemplify the caller’s responses when answering the operator’s questions for further details on the apparent drug activity. As it were the calls that lead to the defendant’s arrest, the defendant asked for this evidence to be inadmissible. The defendant claimed that his Confrontation Clause rights were being violated, as the anonymous caller was not present to testify at trial as a witness. However, the court found that the 911 calls were in fact, non-testimonial in nature and therefore did not violate the Confrontation Clause rights under Crawford v. Washington. The 911 operators did not possess any ulterior motives in their interrogation, they were simply performing their expected duties in answering an emergency call. The court claimed that:

“The questions posed by the 911 operators reflect an intent to gather the information responding officers would need to investigate and, if necessary, stop reported ongoing street-level drug trafficking.”

The 911 calls were not covered by the Sixth Amendment confrontation cause as the sole purpose of the operator’s questioning was to gather as much information as possible in order to deliver a complete and accurate set of information to the first response team.

The court’s decision was based primarily on its precedent in Crawford v. Washington 541 U.S. 36 (2004) which further established that the constitution requires there to be face to face confrontation between the accused and those who accuse him. This rationale not only helps to diminish the possibility of hearsay, but it also gives an opportunity for the defendant to challenge the credibility of the accuser’s testimony.

It is likely that the Commonwealth would refer to the later case of Davis v. Washington U.S. 547 (2006) to argue that the calls are in fact admissible evidence. In Davis., a wife’s 911 call during a domestic fight was used as evidence in her absence during the trial against her husband. The U.S. Supreme Court granted this evidence admissible as the call was during the incident so the wife was simply trying to “resolve an ongoing emergency”, rather than attempting to incriminate her husband.

Without the presence of the caller, it will be difficult for a Massachusetts Criminal Lawyer to challenge this piece of evidence as a cross examination cannot take place. The defendant’s constitutional rights give him the right to challenge the reliability of any testimony given against him in court, so he is effectively being denied his rights in this case. Due to the emergency nature of this call, the court is insisting that it is admissible as non testimonial evidence. However, the caller had called 911 emergency services with the primary intention of having the defendant be caught and arrested, unlike the Davis case.