By Sherry F. Colb
In my Verdict column for this week, Part 1 of a 2-part series of columns, I examine the case of Navarette v. California. The case asks the question whether an anonymous informant's tip about a suspect, in the absence of corroboration of illegality, can suffice as justification for a brief detention or "stop." In Part 1, I analyze Supreme Court precedents governing the definitions of "reasonable suspicion" (the standard for a stop), "probable cause" (the standard for an arrest), and the longstanding role of informants in helping police officers meet these two standards.
In this post, I am interested in examining what I regard as a paradox of anonymity: it can free people to expose authentic thoughts and feelings they would otherwise conceal, and it can simultaneously liberate speakers to lie with impunity.
For an example of the former, consider online support groups. A friend of mine recently faced a potentially devastating medical diagnosis and rapidly found himself looking online for information about the diagnosis. He quickly came upon discussion groups in which people who had the diagnosis in question exchanged stories about their own experiences, what treatments they underwent, what the benefits and downsides of those treatments were, and how they feel in the present.
My friend found these stories empowering but also scary, because he did not know (1) whether he in fact was going to receive the diagnosis or (2) who in the online group most resembled him. The one thing he did not suspect, however, was that anyone telling his or her story was lying. He trusted their stories, in other words, even though he did not know who they were and therefore could not consult his prior experience to reassure him about their veracity, and he also could not rely on the deterrent force of the potential consequences for lying, because there almost certainly would be no such consequences, since the people in the online group were, for all intents and purposes, anonymous. Yet their participation in their group -- and their willingness to share stories -- seemed to bolster rather than detract from their apparent credibility.
Turn now to an anonymous informant who calls the police to say "the man living at 321 Penny Lane has been sexually abusing his sons every day." Though we would certainly want the police to do some investigation, there is a non-trivial chance that the caller is lying. The caller might, for example, be a vindictive neighbor or someone else who wants, for whatever reason, to harm the man living at 321 Penny Lane. Absent more information, I at least would be very reluctant to detain the accused man. I would be much more comfortable acting on this tip, by contrast, if the accuser gave her name and address to the police and thereby rendered herself vulnerable to punishment if she invented the whole story.
What is the difference between these two scenarios, such that we might find the accounts in the first to be especially trustworthy, while finding the report in the second far less so? Part of an answer might lie in the amount of detail. If the anonymous informant in the second example went into much greater detail about the nature of the child abuse, then that might help her case. But still, the worries about vindictive or otherwise malevolent false reports would remain. Why is that?
I think the answer lies in a deep intuition we have about people engaging in self-disclosure rather than other-accusation. If you tell me that you suffered from a particular medical condition and found that therapies A,B, and C were helpful, but therapy D was not, I will almost certainly believe you. You are confiding information in me, even if you are doing so anonymously, and that demonstrates that you trust me (and other listeners) to receive that information, a trust that I and others feel invited to reciprocate, by believing what you say.
By contrast, if you make accusations against someone -- and do so anonymously -- then you have not in any way put yourself on the line. There might be reasons for you to want to remain anonymous -- perhaps you are afraid of retaliation by the person against whom you are leveling an accusation. But there is nothing inherent in the information you are sharing that either exhibits trust or exposes something about you that you might prefer to keep private.
There is an exception to the rule against hearsay for what are called "statements against interest." As you probably know, hearsay is an out of court statement, offered as proof of the truth of the statement. For example, you testify "Jane Doe told me she paid her taxes," and this testimony is offered to prove that Jane Doe paid her taxes. Hearsay is generally inadmissible. Statements against interest are statements that are thought to be so contrary to the interests of the speaker (either financially damaging or subjecting him to criminal liability, for example) that no one would say them unless they were true.
The premise of the statement against interest exception to hearsay is that people do feel motivated to disclose uncomfortable (and true) facts about themselves, such that we can believe those statements when made. If, by contrast, we thought it utterly irrational to make these statements, whether true OR false, then there would be no reason to presume by their utterance that the statements are true. The statement of the person on an online support group would appear to fall into a category similar to statements against interest. There would appear to be no good reason to make the statements if they are false, but a strong reason to make the statements if they are true -- they take a load off the mind of the person making the disclosure, who may also now experience a sense of "giving back" to the community of sufferers.
In the case of statements against interest, however, the Supreme Court has -- wisely, in my view -- declared in Williamson v. United States that only the "against interest" components of such statements fall within the hearsay exception. If, for example, John Doe were to confess that he robbed a bank and then add that Jane Roe also participated in the robbery, the part about Jane Roe would not fall within the statement against interest exception. Pointing the finger at another person is not against the interests of the speaker, and there is a very good reason why one might make such a statement even if it is not true: because it seemingly offers up someone else who can be punished for whatever misdeed is at issue.
Anonymous informants' tips of the sort that form the subject of the Navarette case would seem to fall into the category of statements not against interest (whether they are adjacent to against-interest statements or not). We can easily come up with a reason for the anonymous person to sling mud, falsely, at the target of her accusations. As an anonymous person, she can use her tip to exact revenge or otherwise harm her enemies. It takes something more akin to good samaritanship, by contrast, to explain a truthful anonymous tip, since the person is taking out time to protect a vulnerable victim and is not even placing herself in a position to receive credit for that act. For this reason, among others, I hope that the Court will be exceedingly careful about permitting police to trust anonymous tips without further foundation.