Admissibility of 911 Call Recordings as Nontestimonial Present Sense Impressions under the Confrontation Clause: State v. Burton (2025)

1. Introduction

The Supreme Court of North Dakota’s decision in State v. Burton, 2025 ND 83, clarifies when a 911 call may be admitted into evidence without violating the Sixth Amendment’s Confrontation Clause and when such a recording qualifies under the “present sense impression” hearsay exception. Brent Lee Burton was charged with domestic violence after officers responded to a 911 call placed by his wife reporting an assault. At trial, the State introduced the 911 recording over Burton’s objections that it was testimonial hearsay and improperly authenticated. The district court overruled those objections and Burton appealed.

2. Summary of the Judgment

The North Dakota Supreme Court affirmed the district court’s judgment. The Court held:

The 911 call was nontestimonial because its “primary purpose” was to summon help for an ongoing emergency, not to gather evidence for prosecution.
The recording was properly authenticated under N.D.R.Ev. 901 by circumstantial evidence (self-identification of the caller, consistency with on-scene observations, and a Certificate of Authenticity from the communications center).
The 911 statements fell within the “present sense impression” exception to hearsay (N.D.R.Ev. 803(1)), as they described events while the caller was perceiving them or immediately thereafter.
No Sixth Amendment violation occurred because the Confrontation Clause does not apply to nontestimonial statements.

3. Analysis

3.1 Precedents Cited

Crawford v. Washington, 541 U.S. 36 (2004): Established that testimonial out-of-court statements may not be admitted unless the declarant is unavailable and the defendant had prior opportunity for cross-examination.
Davis v. Washington, 547 U.S. 813 (2006): Distinguished testimonial statements (those aimed at establishing past events) from nontestimonial statements (those made to address an ongoing emergency).
Michigan v. Bryant, 562 U.S. 344 (2011): Emphasized an objective “primary purpose” test, looking at both declarant and interrogator under the specific circumstances.
State v. Froelich, 2017 ND 154: Held that portions of a 911 call are nontestimonial when the declarant is describing a current emergency and the call assists police in resolving it.
State v. Good Bear, 2024 ND 18: Reaffirmed that nontestimonial hearsay does not implicate the Confrontation Clause.
State v. Vickerman, 2022 ND 184: Provided factors to decide if a statement is testimonial.

3.2 Legal Reasoning

The Court applied the Supreme Court’s “primary purpose” framework to the 911 call:

“Primary purpose” was to obtain police assistance—questions and answers focused on location, injuries, weapons, and whether the threat persisted.
The caller reported events in real time—Burton “is still there,” she “cannot lock herself in another room,” and Burton “has guns downstairs.”
The informal, urgent nature of the interaction—typical of emergency calls—indicated no testimonial intent.

Having found the statements nontestimonial, the Court held the Confrontation Clause did not bar their admission. Turning to hearsay under state rules, the Court found the recording admissible as a “present sense impression” (N.D.R.Ev. 803(1))—statements describing or explaining an event made while perceiving it or immediately thereafter.

Finally, the Court addressed authentication under N.D.R.Ev. 901. It concluded that circumstantial evidence (self-identification, matching injury descriptions, response by officers to the reported address, and a custodian-signed certificate) sufficed to show the recording was what the State claimed.

3.3 Impact on Future Cases

This decision provides clear guidance on:

The boundary between testimonial and nontestimonial emergency calls—underscoring that 911 calls made for immediate assistance are ordinarily nontestimonial.
Use of the present sense impression exception to admit live-911 recordings, reducing reliance on unavailable declarants.
Authentication standards for electronic recordings in domestic violence and other urgent-response cases, permitting circumstantial proof and certificates of authenticity.

Practitioners should carefully frame 911 calls as responses to ongoing emergencies and preserve authentication foundations if declarants do not testify.

4. Complex Concepts Simplified

Confrontation Clause: A constitutional right under the Sixth Amendment allowing a defendant to confront witnesses who testify against them. It applies only to testimonial statements.
Testimonial vs. Nontestimonial: Testimonial statements are made to establish or prove past events for later prosecution. Nontestimonial statements are made under pressing, ongoing emergencies to obtain help.
Primary Purpose Test: An objective analysis of why questions and answers occurred—whether to resolve a current threat or to build a case on past events.
Present Sense Impression (N.D.R.Ev. 803(1)): An exception to hearsay for statements describing an event made while the speaker perceives it or immediately after—deemed reliable because of contemporaneity.
Authentication (N.D.R.Ev. 901): Evidence is authenticated when sufficient proof shows the item is what the proponent claims. Circumstantial evidence and certificates of authenticity can suffice.

5. Conclusion

State v. Burton cements the principle that 911 emergency calls are generally nontestimonial when their primary purpose is to summon assistance for ongoing crises. Such calls—when properly authenticated—fit within the present sense impression hearsay exception and may be introduced at trial without violating the Confrontation Clause. This ruling will streamline the admission of critical emergency-response evidence in domestic violence and other urgent-response prosecutions, ensuring victims’ cry for help can be heard by juries even if the declarant cannot testify.