The 911 call can be the first piece of evidence in a domestic violence case, recorded before any officer arrives. Whether a jury hears it depends on two things: Montana's hearsay rules, and the constitutional right of the accused to confront the witnesses against them. A recording can pass both tests, fail both, or pass in part. This page explains how. It is part of our Montana Domestic Violence Guide.
What a 911 Recording Contains
A call captures more than the caller's words. There are the operator's questions, the caller's tone, background voices and sounds, and the time. A dispatch log may separately show when units were sent and what they were told. Any of this can matter: to the State, as an account given at the moment, and to the defense, as a record of what was and was not said before anyone had time to reflect.
The written summary of a call in a police report is not the call. Summaries compress. Listening to the audio itself is a basic step in preparing the defense.
Hurdle One: The Hearsay Rules
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted (Montana Rule of Evidence 801(c)). A caller's recorded statement that "he hit me" is hearsay if offered to prove that he did.
Rule 803 lists exceptions that apply even when the declarant is available as a witness. Two are raised with 911 calls:
- Present sense impression, Rule 803(1): a statement describing or explaining an event or condition made while the declarant was perceiving it, or immediately thereafter.
- Excited utterance, Rule 803(2): a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by it.
Both depend on timing and circumstances. A call made twenty seconds into an event is different from a call made the next morning. The judge decides whether the foundation has been shown.
Hurdle Two: The Right to Confront Witnesses
Fitting a hearsay exception is not enough. The Sixth Amendment gives the accused the right to be confronted with the witnesses against him, and Article II, section 24 of the Montana Constitution gives the right "to meet the witnesses against him face to face."
In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court held that where testimonial statements are at issue, the Confrontation Clause requires confrontation: such statements from a witness who does not appear at trial are barred unless the witness is unavailable and the defendant had a prior opportunity to cross-examine. The question after Crawford was which statements are "testimonial."
Davis v. Washington: The Ongoing Emergency Test
Davis v. Washington, 547 U.S. 813 (2006), answered that for 911 calls and statements to responding officers. The Court held:
"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."
The opinion decided two domestic violence cases together, and they came out differently.
| Case | The statement | Result |
|---|---|---|
| Davis | A 911 caller described an assault as it was happening and named the person. | Not testimonial. The primary purpose was to get help in an ongoing emergency. The recording could be used though the caller did not testify. |
| Hammon | Police arrived after a reported disturbance, were told things were fine, separated the couple, and took a signed affidavit about what had happened. | Testimonial. There was no emergency in progress and the purpose was to establish past events. Not admissible without a chance to cross-examine. |
One Call Can Be Both
Davis did not say every word on a 911 recording is admissible. The Court noted that a conversation that begins as a call for emergency help can "evolve into testimonial statements" once that purpose has been achieved. In Davis itself, the Court observed that the emergency appeared to have ended when the man drove away, and that the operator's later questions could readily be seen as producing testimonial answers.
The remedy the Court described is editing: through pretrial motions, trial courts "should redact or exclude the portions of any statement that have become testimonial." In practice that means going through a recording minute by minute. Where was the other person at each point? Was the caller describing what was happening or what had happened? Were the operator's questions about safety or about details for a report?
Davis also mentioned forfeiture by wrongdoing: a person who obtains a witness's absence by wrongdoing forfeits the constitutional right to confrontation. That is one more reason, beyond the criminal penalties, never to contact or pressure a witness. See witness tampering and contacting the other person.
Getting the Recording
Your lawyer requests it from the prosecutor. Under MCA § 46-15-322(1), the prosecutor must on request make available the statements of persons the State may call as witnesses, all statements of the defendant, and tangible objects the State may use at trial. The duty extends to material held by others who took part in the investigation (MCA § 46-15-322(4)), and the court can order production of additional material on a showing of substantial need (MCA § 46-15-322(5)).
The statutes cited on this page do not say how long a dispatch center keeps its audio. For that reason an early request is prudent. See discovery in a PFMA case and preserving evidence for your defense.
A 911 recording is one part of the file. Our page on body cameras, photos, and medical records covers the rest of what is gathered in the first hour, and our PFMA defense pagedescribes how A&M Law works these cases.
This page explains Montana and federal law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.