In Tennessee, Trial Court Determination of Credibility of Telephonic Testimony Should be Provided Same Deference on Appeal as In-Person Testimony.

The Tennessee Supreme Court in Terri Ann Kelly v. Willard Reed Kelly, No. E2012-02219-SC-R11-CV, 2014 WL 4437671 (Tenn. 2014) discussed the appropriate level of deference an appellate court should provide to a trial court’s consideration of a witness who provided testimony by telephone.  This case involved a child custody issue.  One of the mother’s witnesses testified by telephone at trial.  The husband did not object to this testimony by telephone.  On appeal, the Tennessee Court of Appeals found the determination of credibility by the trial court for telephonic testimony should not be given any deference by the appellate court because the trial court lacked the ability to view the actual witness.  This was then appealed to the Tennessee Supreme Court.

The Tennessee Supreme Court first noted that in this case the parties cited no rule or Tennessee law that would actually permit testimony by telephone.  However, due to the fact that nobody objected, the Court did not take issue with this fact (although if you are on the other side of this issue in the future you should certainly object and cite this opinion).  The Court then turned to the issue of the appropriate level of deference that should be afforded to the trial court’s determination of witness credibility when it took testimony by telephone.  The general rule is that for “live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues that hinge on the witnesses' credibility because trial courts are uniquely positioned to observe the demeanor and conduct of witnesses.”  Kelly at 6. (citing State v. Binette, 33 SW.3d 215, 217 (Tenn. 2000)). 

In deciding this issue, the Tennessee Supreme Court ultimately disagreed with the Court of Appeals decision and instead found that telephonic testimony should be given the same level of deference as live testimony.  The Court found that even by telephone the trial court is better situated to gauge the credibility of the witness when compared to an appellate court’s ability to evaluate the witness.  The trial court actually heard the witness’ voice in testifying and, therefore, could assess hesitancy, nervousness, defensiveness and all the other factors that are important when assessing credibility. Kelly at 8.  The appellate court, however, is only able to review a “cold transcript” which is not the same as hearing live testimony, in person or by telephone.  Kelly at 8.  The Court therefore found that on appeal, the trial court’s determination of witness credibility for telephonic testimony should be given the same deference as the trial court’s determination of witness credibility for live, in-person witnesses.