(Un)Masked and Anonymous: Supreme Court Of Arizona Finds Anonymous Call Admissible Under Rule 804(b)(3)

Similar to its federal counterpart, Arizona 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. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

As I have previously noted on this blog, courts typically have found that anonymous statements cannot qualify as statements against interest under Rule 804(b)(3). The recent opinion of the Supreme Court of Arizona is Arizona v. Machado, 2011 WL 519752 (Ariz. 2011), is an exception to this general practice.

In Machado, Louis Machado was convicted of the murder of Rebecca R.  Machado was actually was not first suspect considered by the police; rather,

Almost a month after the shooting, Rebecca's family received a telephone call. The caller did not identify himself, but said he knew the family through Rebecca. He related details of the shooting that were not publicly known and said he had accidentally killed Rebecca because he was mad at her and she would not do what he wanted. The family members who heard the call said that the caller sounded like a "cold, cocky, and well-spoken" young white male. Relying on this call, police obtained a warrant for a sample of [the voice of Jonathan H.].

Jonathan H. was Rebecca's classmate "and the boyfriend of her best friend, Laura. He had threatened to kill Rebecca and Laura two weeks earlier for attempting to resolve a dispute between him and Laura's ex-boyfriend

After Machado was convicted, he appealed, claiming, inter alia, that the trial court erred by precluding him from admitting into evidence the anonymous phone call allegedly made by Jonathan H. His appeal eventually reached the Supreme Court of Arizona, which noted that

An anonymous statement would not typically qualify as a statement against penal interest under Rule 804(b)(3). By concealing his identity, the declarant seeks to protect himself from the consequences of admitting to a crime. Such a statement ordinarily would not tend to expose the declarant to criminal liability, as Rule 804(b)(3) requires.

That said, the Arizona Supremes then pointed out that

both in its supplemental brief and at oral argument, the State conceded that the anonymous telephone call in this case was a statement against penal interest by the declarant. Presumably, the State did so because it obtained a warrant for Jonathan's voice sample on the basis of the call, making it somewhat difficult to argue that the call did not tend to expose the declarant to criminal liability.

The court then indicated that it Jonathan H. was unavailable at Machado's trial, meaning that call was admissible as long as there were "corroborating circumstances clearly indicate the trustworthiness of the statement."  And it found that there were, concluding that

The caller stated that before the shooting, he waited by a white minivan parked near a neighbor's house. At the time of the crime, a white minivan was in fact parked nearby. The caller also stated that he saw Rebecca come home in a white Ford Escort. This detail was also correct, and the Escort had only recently been purchased. Neither of the facts described by the caller had been reported in the media.

-CM