911 Call, Co-Defendant Confession, and a Suggestive Photo Array
Marcus is tried in Mississippi state court for the armed robbery of a Jackson convenience store. The State offers three items. First, a recording of the clerk's 911 call made about 40 seconds after the robber fled; the clerk is out of state and does not testify. On the call, the clerk, sounding breathless, says, 'He just ran out-tall guy, red Saints hoodie, gray sweatpants,' and gives the store address. Second, a videotaped police interview of Marcus's co-defendant, Devin, who says, 'Marcus and I did it, but Marcus had the gun.' Devin invokes his Fifth Amendment privilege and does not testify; the State has not given Marcus a chance to cross-examine him. Third, a second employee, Lena, identified Marcus from a photo array three weeks later; the array showed six men, but only Marcus wore a red Saints hoodie. Lena had seen the robber for 'a few seconds' from 20 feet.
1. Is the 911 recording admissible? Address hearsay and the Confrontation Clause.
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The 911 recording is admissible. The clerk's statements are hearsay, but they fall within the present sense impression exception (the description of the robber immediately after observing him) and the excited utterance exception (the clerk was breathless and under the stress of the robbery). The Confrontation Clause does not bar the recording because the statements were nontestimonial. Under Davis v. Washington, a 911 call is ordinarily nontestimonial when it is made to obtain emergency assistance and describes events as they are happening, rather than to establish evidence for a later prosecution. The clerk's request for help and the immediate description of the fleeing robber fit that category.
The recording must be authenticated, but the State can use the custodian of the 911 system or the responding officer. The clerk's absence affects only the hearsay exceptions, which apply. The court should admit the recording.
2. Is Devin's videotaped statement admissible?
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Devin's videotaped statement is inadmissible. It is hearsay, and no exception applies. The statement against penal interest exception under Rule 804(b)(3) does not help the State because Devin is not testifying and the statement also inculpates Marcus. More importantly, the Confrontation Clause bars the statement. A police interview of a co-defendant is testimonial, and Devin is unavailable because he invoked his Fifth Amendment privilege. Marcus had no prior opportunity to cross-examine Devin, so Crawford v. Washington requires exclusion.
Bruton v. United States independently bars the confession of a nontestifying co-defendant that names the defendant. Redaction might cure the problem if it removes any reference to Marcus and does not leave the jury with an obvious inference, but a statement saying 'Marcus and I did it' cannot be redacted without destroying its meaning. The court should exclude the videotape.
3. May Lena's photo-array identification and any in-court identification be admitted?
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Lena's identification is vulnerable. A photo array violates due process if the police used an unnecessarily suggestive procedure and the identification was unreliable under the totality of the circumstances. Showing six men but only Marcus in a red Saints hoodie is unnecessarily suggestive because it highlights the most distinctive feature the clerk described.
The court must then apply the Neil v. Biggers factors: Lena's opportunity to view the robber, her degree of attention, the accuracy of her prior description, her level of certainty, and the time between the crime and the identification. She saw the robber for only a few seconds from 20 feet, which cuts against reliability, though her prior description and certainty may support it. If the array was impermissibly suggestive and the identification unreliable, the out-of-court identification is suppressed. An in-court identification may still be admitted if the State proves an independent source, but the suggestive array makes that difficult. The court should hold a hearing before ruling.