Recordings Without Complaining Witness Admissible in Domestic Assault Cases? MN Supreme Court to Decide Confrontation Clause Issue

As criminal defense lawyers, we often hear “what if the witness does not show up? Won’t they have to dismiss my case?” These questions come up in all types of criminal cases, but more commonly, they get asked in domestic assault cases. The defendant and the complaining witness are often the only two people who were present at the time of the alleged incident. Since defendants have the Fifth Amendment right against self-incrimination and cannot be forced to testify, the complaining witness is often the prosecution’s star witness in these matters.

Recently, the Minnesota Supreme Court granted review in State v. Tapper. In this domestic assault case, the complaining witness (alleged victim) did not appear for trial. The prosecution had a body-camera recording of the responding officer that included statements from the complaining witness about what happened, including an alleged assault. The prosecution tried to admit and eight-and-half minute recording of that conversation at trial. The district court and then the Minnesota Court of Appeals said no dice. The prosecution asked the Minnesota Supreme Court to grant review, which it did, and we now await a decision after briefing and oral arguments complete.

Notably, the court of appeals highlighted that there was no ongoing emergency and the alleged victim’s statements on the recording were about what happened in the past, thus making them testimonial and in violation of the Confrontation Clause since the complaining witness was not at trial to testify. If the statements were made to meet an ongoing emergency, the court of appeals likely would have decided that the recording should have been admitted. The court of appeals used Davis v. Washington to analyze whether an ongoing emergency was occurring in this matter. In Davis v. Washington, the United States Supreme Court evaluated four factors: (1) did the victim describe events as they were actually happening; (2) would any reasonable person listening to the recording decide that that person was facing an ongoing emergency; (3) were the questions asked and answered necessary to resolve a present emergency or primarily to learn about what happened in the past; and (4) the level of formality in the interview because the witness’s answers were frantic because the environment was not safe.

The court of appeals determined that the complaining witness in this case was not facing an immediate threat from her alleged assailant. The court went on to stress that the alleged victim’s demeanor and the substance of her statements show that they were testimonial. The primary purpose of the officer’s questions were related to what the alleged assailant did that night, not towards resolving an ongoing emergency. Therefore, the court stated admitting her statements would violate the Confrontation Clause. 

Trial tactics can often be a game. Each side, prosecution and defense, will try to admit and keep out as much evidence as possible. Whichever is most advantageous towards its position. In assault-related cases, the strategy can change depending on what witnesses are available at trial. In this matter, if Tapper’s defense attorney did not object and make the proper arguments, the recordings could have been used at trial. The result could have been a conviction, which could have been prevented. People often believe they can represent themselves or get any attorney with a pulse and a law license to represent them. While there is a chance that could work out for you, we think getting competent legal representation is as important as having a highly qualified surgeon perform life-altering surgery on you. For a consultation at no charge, contact us by phone or text at: 612-547-3199 or email:

Robert H. Ambrose is a criminal defense attorney and DWI attorney in Minnesota. Minnesota. Super Lawyers named him Super Lawyer this year and a Rising Star the previous six years before that. He is an adjunct professor at the University of Minnesota Law School. DUI Lawyer Woodbury MN; Criminal Defense Lawyer St. Paul MN; and Criminal Appeals Lawyer Minnesota.