N.D. Supreme Court considers whether 911 call admitted at trial violated confrontation and authentication rules

The North Dakota Supreme Court heard oral argument in State v. Brent Lee Burton (No. 20240286) over whether a 911 recording admitted at his trial violated Burton’s Sixth Amendment right to confront witnesses and whether the recording was properly authenticated under Rule 901 of the North Dakota Rules of Evidence.

The question matters because the recording was the state’s central piece of evidence connecting photographs of alleged injuries to the defendant’s conduct; the parties and the justices debated whether the recording was testimonial and whether admitting it without live testimony deprived the defense of cross-examination.

Kiera Krausbaugh, attorney for the appellant Brent Burton, told the court the 911 caller spoke in the past tense and in a calm voice and that the trial judge failed to make findings required to admit the recording under hearsay exceptions. Krausbaugh said the defense never received a pretrial ruling establishing the caller’s unavailability and argued the record lacks a temporal link tying the call to the alleged assault. Krausbaugh argued, “We have a confrontation clause problem. We have authentication problem.”

Isaac Lees, attorney for the State of North Dakota, said the state filed a certificate of authenticity and relied on circumstantial evidence tying the call to the scene. Lees told the justices the prosecution submitted “a certificate of authenticity that had a sworn statement signed by the supervisor at Central Dakota Communications,” and he urged the court to defer to the district court’s factual inferences about the call’s contemporaneity. Lees also framed the admissibility question around the primary-purpose test, saying in part, “That factor is was the primary purpose, as Justice Crothers said, to obtain a replacement for testimony at trial.”

Counsel and the justices debated several evidentiary doctrines in detail. Defense counsel argued the recording did not qualify as an excited utterance or a present-sense impression because the speaker’s statements were in the past tense and calm; the defense also pressed that the record did not establish the caller’s unavailability. The state responded that law-enforcement observations at the scene, the defendant’s statements to police admitting he got physical, and the certification of the 911 record provided sufficient authentication and circumstantial support for admitting the recording.

The parties and justices discussed controlling federal and state precedent including Crawford, Davis v. Washington, cases the parties cited as governing testimonial status, and the U.S. Supreme Court’s later treatment of the primary-purpose analysis. Counsel also cited State v. Thompson and other North Dakota decisions concerning authentication and hearsay exceptions. The court’s justices questioned whether the district court had made factual findings supporting admission and whether any possible error was harmless in light of other evidence the state introduced at trial.

The court recessed after argument and took the case under advisement. The justices did not announce a decision at the oral argument.

Background and record details referenced at argument: the trial court listened to the 911 recording and found it was not an excited utterance but nonetheless admitted it; the state presented a certificate of authenticity from Central Dakota Communications and law-enforcement testimony describing injuries officers observed; the defense contended there was no pretrial hearing establishing the caller’s unavailability and that the record lacks the temporal link required for present-sense or excited-utterance exceptions. The identity of the caller (the alleged victim) was not established at trial through live testimony, and the defendant is Brent Lee Burton.