Thursday, May 14, 2009
Caller ID: Supreme Court Of Tennessee Finds That Anonymous Statements Cannot Qualify As Statements Against Interest
Like its federal counterpart, Tennessee Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
But what happens when the statement at issue was made anonymously? That was the question presented to the Supreme Court of Tennessee in State v. Kiser, 2009 1313564 (Tenn. 2009). And, like many other courts, Tennessee's highest court found that anonymous statements cannot qualify as statements against interest for hearsay purposes.
In Kiser, a jury convicted Marlon Duane Kiser, of first degree premeditated murder and two counts of first degree felony murder, all involving the same victim, Hamilton County Deputy Sheriff Donald Bond. What the jury did not hear was the tape recording of anonymous call made to a public defender in which the caller said that he could not let an innocent man go to jail, that the witnesses against Kiser had actually committed the subject crimes, and that he had been pressured to keep his information quiet. Kiser was prepared to have two witnesses testify that the voice on the recording belonged to a man named Mack Heard, but the trial judge precluded their testimony and admission of the recording, finding that it constituted inadmissible hearsay.
After Kiser was convicted, he appealed, claiming, inter alia, that the recording was admissible as a statement against interest under Tennessee Rule of Evidence 804(b)(3), and his appeal eventually reached the Supreme Court of Tennessee. And that court acknowledged that the caller's statements could in one sense be construed as against his penal interest because the caller placed himself at risk for prosecution for the federal crime of misprision of a felony and conspiracy to obstruct justice.
But the problem for Kiser was that Tennessee Supremes noted that most courts had found that anonymous statements cannot constitute statements against interest, including the Court of Criminal Appeals of Tennessee in State v. Wilhoit, 962 S.W.2d 482, 487 (Tenn.Crim.App. 1997), which found that information provided by an anonymous citizen "raises heightened concerns about the reliability of the information" because of the possibility of false reports or reports from vindictive or unreliable informants.
The court adopted the reasoning of these courts and rejected Kiser's argument that "in this day and age, it is forseeable that one's telephone calls to public agencies would be tape-recorded and captured on caller-ID," finding that
Even if this argument has some merit, we are not persuaded that it changes our analysis. Caller-ID may (or may not) identify the phone number from which a call is being placed; it does not identify who is speaking into the phone, however. And if the caller thinks that his call may be recorded and that his voice may then be subjected to efforts at identification, he may simply attempt to disguise his voice in some manner. He may also be convinced for other reasons that his voice will remain unidentified. In all of these events, the anonymous caller will likely lack the crucial concern that he will be called to answer for his statements: otherwise, he would not take efforts to conceal his identity in the first place.
The court also found
an additional reason that the anonymous phone call was not admissible as a statement against penal interest. The caller told [the public defender] that he could not let an innocent man go to jail. He also told her that he had been pressured to keep his information quiet. Obviously, he was presenting himself as an ally in the pursuit of justice. As commentators have noted, statements should not be admitted under Rule 804(b)(3) "if the declarant actually believed that he or she was saying something that would be helpful...." In that event, “reliability is questionable and the statement should not be admitted under this hearsay exception."