People v. Peck

JUSTICE COOK, specially concurring:

I disagree with the statement in the majority opinion that if a statement "meets the requirements of section 115 — 10, it also meets all requirements of Wright.” 285 Ill. App. 3d at 23.

In Wright, quoting Roberts, the court noted that the confrontation clause operates in two separate ways to restrict the range of admissible hearsay.

" 'First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case ..., the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.’ Ibid, (citations omitted). Second, once a witness is shown to be unavailable, 'his statement is admissible only if it bears adequate "indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.’ ” Wright, 497 U.S. at 814-15, 111 L. Ed. 2d at 651-52, 110 S. Ct. at 3146, quoting Roberts, 448 U.S. at 65, 66, 65 L. Ed. 2d at 607, 608, 100 S. Ct. at 2538, 2539.

In my view, the confrontation clause permits hearsay evidence that does not fall within a firmly rooted hearsay exception only when use of that evidence is necessary, only when the declarant is unavailable to testify in court. A declarant is unavailable where the declarant is present but incapable of communicating with the jury. Wright, 497 U.S. at 816, 111 L. Ed. 2d at 652, 110 S. Ct. at 3147. Section 115 — 10 of the Code does not contain any corresponding limitation on the use of hearsay evidence to cases where there is a necessity for such evidence. Under section 115 — 10, any number of witnesses may testify to what the child told them out of court even if the child testifies fully and freely in court. See Barger, 251 Ill. App. 3d 448 , 624 N.E.2d 405 . Accordingly, I disagree that compliance with section 115 — 10 insures there will be compliance with the confrontation clause.

In White, the Court considered whether the confrontation clause required that before a trial court admits testimony under the "spontaneous declaration” and "medical examination” exceptions to the hearsay rule the prosecution must either produce the declarant at trial or the trial court must find that the declarant is unavailable. Disclaiming any intent to establish a wholesale revision of the law of evidence under the guise of the confrontation clause, the Court refused to impose any such requirement. "[Wjhere proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.” White, 502 U.S. at 356, 116 L. Ed. 2d at 859, 112 S. Ct. at 743. Spontaneous declarations and statements made in the course of receiving medical care are made in contexts that provide substantial guarantees of their trustworthiness. White, 502 U.S. at 355, 116 L. Ed. 2d at 859, 112 S. Ct. at 742.

Section 115 — 10 is not a firmly rooted exception to the hearsay rule, and White accordingly provides no justification for allowing the admission of hearsay statements under section 115 — 10 when the child declarant testifies fully and freely in court.