Petition for Writ of Certiorari — Idaho v. Wright

Bupreme Court, U.S.

|

89-2 60") i EFILED

' AUG 47 1889

No. 89- JOSEPH F. SPANIOL, JR.

ee ——

In The

Supreme Court of the United States

October Term, 1989

oe

THE STATE OF IDAHO,

Petitioner,

vs.

LAURA LEE WRIGHT,

Respondent.

+

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF IDAHO

—>—

James T. JONES

Attorney General of

the State of Idaho

* Myrna A. I. STAHMAN

Deputy Attorney General

Statehouse, Room 210

Boise, Idaho 83720

Telephone: (208) 334-2400

Attorneys for Petitioner

* Counsel of Record

QUESTION PRESENTED FOR REVIEW

Whether the “indicia of reliability” and “partic-

ularized guarantees of trustworthiness” mandated by the

Sixth Amendment Confrontation Clause of the United

States Constitution require that the hearsay statement of a

very young victim of sexual abuse to an examining pedi-

atrician be excluded unless the prosecution establishes

that (a) the interview was either audio or videotaped; (b)

leading questions were not used; and (3) the examining

pediatrician conducting the interview did not have any

preconceived idea of what the child should be disclosing.

TABLE OF CONTENTS

Page

EE 1

UNG AiWE UWS heheevuscecscssesaeece. 1

“TAND RULES OF EVIDENCE INVOLVED SONS

STATEMENT OF THE CASE........................ 3

REASONS FOR GRANTING THE WRIT..........__. 13

eee e eek vba cseencescceccccecces.. 19

UMS hake uebsascvnnsvecccccescesce. App. 1

TABLE OF CASES AND AUTHORITIES

Page

Coy v. lowa, 487 U.S. __, 101 L.Ed.2d 857, 108 S.Ct.

cl i eeae 13, 18

Lee v. Illinois, 476 U.S. 530, 90 L.Ed.2d 514, 106

eS seeeeeeeese 10

Mattox v. United States, 156 U.S. 237, 39 L.Ed. 409,

EN ea 14

Ohio v. Roberts, 449 U.S. 56, 65 L.Ed.2d 597, 100

a a a el 14, 15, 17

State v. Bellotti, 383 N.W.2d 308 (Minn. App. 1986) .... 16

State v. Giles, __ Idaho __, 772 P.2d 191 (1989)

eerie ae idk peewee aengeteeed 1, 4, 8, 9, 17

State v. Nelson, 138 Wis. 2d 418, 406 N.W.2d 385

ck de bdéeeddscavecucestsccoecececesce 16

State v. Parker, 112 Idaho 1, 730 P.2d 921 (1986)..... 16

State v. Vosika, 830 Or. App. 298, 731 P.2d 449

ERA HT rr rrr errr rer rT TTT TTT TTT Tie 16

State v. Wright, No. 17033, slip op. (Idaho, June 13,

SEPP TTTTTITTTETiTTe Tiree 4, 10, 11, 12, 13

U.S. v. lron Shell, 633 F.2d 77 (8th Cir. 1980); cert.

denied 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d

EGE GA TE 16

U.S. v. Nick, 604 F.2d 1199 (9th Cir. 1979)........... 16

United States v. Renville, 779 F.2d 430 (8th Cir.

eos Cae akc eaeeesssencececeseoces 16

Idaho Code § 19-3024 (1987)... 2... 6... cc ccc eens 1

Rule 803, Idaho Rules of Evidence................... 2

Rule 803(24), Idaho Rules of Evidence ..4, 9, 10, 11, 17

TD 6. cn geveesseesdedcesesdcceseccescs 1

OPINION BELOW

The opinion of the Idaho Supreme Court, not yet

reported appears as Appendix A. As Appendix B the

state is providing the opinion of the Idaho Supreme

Court in the companion case of State v. Giles, __ Idaho

__, 772 P.2d 191 (1989).

>

JURISDICTION

The opinion of the Idaho Supreme Court was issued

on June 13, 1989, This Court’s jurisdiction is invoked

under 28 U.S.C. § 1257(a). The judgment below is not

based on an independent and adequate state ground. The

Idaho Supreme Court relied entirely upon the Confronta-

tion Clause of the Sixth Amendment to the United States

Constitution in evaluating the defendant's right to con-

front witnesses against her. Idaho does not have a state

constitutional confrontation clause.

>—-

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND RULES OF EVIDENCE INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides in pertinent part:

[Rights of the accused.] In all criminal pros-

ecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him.

Idaho Code § 19-3024 provides:

19-3024. Statements by child. —- Statements

made by a child under the age of ten (10) years

describing any act of sexual abuse, physical

abuse, or other criminal conduct committed

with or upon the child, although not otherwise

admissible by statute or court rule, are admis-

sible in evidence after a proper foundation has

been laid in accordance with the Idaho rules of

evidence in any proceedings under the child

protective act, chapter 16, title 16, Idaho Code,

or in any criminal proceedings in the courts of

the state of Idaho if:

1. The court finds, in a hearing conducted

outside the Dp ne of the jury that the time,

content, and circumstances of the statements

provide sufficient indicia of reliability; and

2. The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness. A child is

unavailable as a witness when the child is

unable to be present or to testify at the

hearing because of death or then existing

physical or mental illness or infirmity. Pro-

vided that when the child is unavailable as

a witness, such statements may be admitted

only if there is corroborative evidence of the

act.

Statements may not be admitted unless the

proponent of the statements notifies the adverse

party of his intention to offer the statements and

the particulars of the statements sufficiently in

advance of the proceedings to provide the

adverse party with a fair opportunity to prepare

to meet the statements.

Rule 803, Idaho Rules of Evidence provides:

Rule 803. Hearsay exceptions; availability of

declarant immaterial. - The following are not

excluded by the hearsay rule, even though the

declarant is available as a witness.

(24) Other exceptions. A statement not

specifically covered by any of the foregoing

exceptions but having equivalent circumstantial

guarantees of trustworthiness, if the court deter-

mines that (A) the statement is offered as evi-

dence of a material fact; (B) the statement is

more probative on the point for which it is

offered than any other evidence which the pro-

nent can procure through reasonable efforts;

and (C) the general purposes of these rules and

the interests of justice will best be served by

admission of the statement into evidence. A

statement may not be admitted under this

exception unless the proponent of it makes

known to the adverse party sufficiently in

advance of the trial or hearing to provide the

adverse party with a fair opportunity to prepare

to meet it, the proponent’s intention to offer the

statement and the particulars of it, including the

name and address of the declarant.

+

STATEMENT OF THE CASE

Laura Lee Wright and Robert L. Giles were jointly

charged, tried and convicted on two counts of lewd con-

duct committed on Wright’s two daughters, who were

five-and-one-half and two-and-one-half years old when

the crimes were committed. Wright and Giles filed sepa-

rate appeals.

On appeal Wright asserted that admitting the testi-

mony of the pediatrician as to a statement made to him

by the two-and-one-half year old victim violated the rules

of evidence and her rights under the Confrontation

Clause of the Sixth Amendment. Prior to deciding

Wright’s appeal, the Idaho Supreme Court decided the

appeal of her codefendant, Giles, in which the only issue

concerned the admissibility of the testimony of a pediatri-

cian as to hearsay statements of the two-and-one-half

year old under the Idaho Rules of Evidence (I.R.E.). The

court held that the pediatrician’s testimony was properly

admitted under Rule 803(24), I.R.E., because the state-

ments had sufficient indicia of reliability and circumstan-

tial guarantees of trustworthiness equivalent to the other

hearsay exceptions. State v. Giles, __ Idaho ___, 772 P.2d

191, 194-195 (1989) (Appendix B). Subsequently, a three

member majority of the Idaho Supreme Court held that

although the testimony was properly admitted under

Rule 803(24), I.R.E., its admission was “in violation of the

standards applicable to the Confrontation Ciause of the

United States Constitution.” State v. Wright, No. 17033,

slip op. at 2 (Idaho, June 13, 1989) (Appendix A).

The background and facts surrounding the sexual

abuse are set forth as follows in State v. Giles, Idaho

__, 772 P.2d 191 (Idaho 1989) (Appendix B):

The older daughter was born April 1, 1981,

to Laura Wright and Louis Wright, who sep

rated from one another on September 22, 1982.

Her parents reached an informal agreement

whereby each parent would have custody of

their daughter for consecutive 6-month periods.

The younger daughter was born April 4, 1984, to

Laura Wright and the defendant Robert Giles.

She was living with them at the time this lewd

conduct was committed.

On October 7, 1986, Louis Wright took cus-

tody of the older daughter pursuant to the

agreement. On November 8, 1986, the older

daughter revealed to Cynthia Goodman, Louis

Wright's girlfriend, that she had been sexually

5

abused by her mother and Giles. The older

daughter also stated that her younger ha!f-sister

had been sexually abused as well.' The follow-

ing day, November 8, 1986, Goodman reported

the sexual abuse of the two girls to the police.

Examinations of the older daughter that day by

three doctors revealed an abrasion near the

vaginal opening, no evidence of a hymenal

right, a fairly large bruise on the left upper leg

and a slightly larger vaginal opening than

would be expected for a girl her age. One of the

three, Dr. Jambura, a pediatrician with extensive

experience in child abuse cases, testified that it

was “highly possible that vaginal penetration

had been occurring on relatively regular basis.”

That same day, the younger daughter was

taken from her mother [Wright] and Giles and

into custody by a police officer and a social

worker. The next day, Dr. Jambura examined the

younger daughter. His examination revealed

some redness and bruises in the early stages of

healing on the inner surface of the labium

majora and labium minora and some scarring on

the back portion of the vagina. The healing area

around the vagina was inflamed and swollen.

Dr. Jambura explained that it is very difficult to

bruise the labium minora and the bruising on

the surfaces of both labia suggests that forcible

contact was made with the inner genital area.

He testified that these injuries were “strongly

suggestive of sexual abuse with vaginal con-

tact.” Dr. Jambura believed the trauma occurred

approximately 2-3 days prior to the

examination.

During Dr. Jambura’s examination of the

younger daughter, the two engaged in conversa-

tion. Over defense objection, Dr. Jambura testi-

fied at trial regarding this conversation:

A. [By Dr. Jambura] .. . She started to

carry on a very relaxed animated con-

versation, | then proceeded to just gen-

tly start asking questions about, “Well,

how are things at home,” you know,

those sorts. Gently moving into the

domestic situation and then moved

into four questions in particular, as |

reflected in my records, “Do you play

with daddy? Does Daddy play with

you? Does daddy touch you with his

pee-pee? Do you touch his pee-pee?”

And again we then established what

was meant by pee-pee, it was a generic

term for genital area.

Q. [By the prosecutor] Before you get

into that, what was, as best you recol-

lect, what was her response to the

question “Do you play with daddy?”

A. Yes, we play - I remember her

making a comment about yes we play a

lot and expanding on that and talking

about spending time with daddy.

Q. And “Does daddy play with you?”

Was there any response?

A. She responded to that as well, that

they played together in a variety of

circumstances and, you know, seemed

very unaffected by the question.

Q. And then what did you say and

her response?

A. When I asked her “Does daddy

touch you with his pee-pee,” she did

admit to that. When I asked, “Do you

touch his pee-pee,” she did not have

any response.

Q. Excuse me. Did you notice any

change in her affect or attitude in that

line of questioning?

A. Yes.

Q. What did you observe?

A. She would not - oh, she did not

talk any further about that. She would

not elucidate what exactly — what kind

of touching was taking place, or how it

was happening. She did, however, say

that daddy does do this with me, but

he does it a lot more with my sister

than with me.

Q. And how did she offer that last

statement? Was that in response to a

question or was that just a volunteered

statement?

A. That was a volunteered statement

as I sat and waited for her to respond,

again after she sort of clammed-up,

and that was the next statement that

she made after just allowing some

silence to occur.

1 At trial, held May 6-12, 1987, the older daugh-

ter testified that Giles had intercourse with the youn-

ger sister while Laura [Wright) held the younger

sister’s legs and covered her mouth so she wouldn’t

scream.

771 P.2d at 192-193.

As the Idaho Supreme Court noted in footnote 1, the

older sister testified at trial concerning the sexual abuse

of her younger sister. She testified regarding the “private

touching” which happened to her and to her younger

sister and the fact that the “private touching” of her

younger sister occurred while all four individuals, the

defendants and both young girls, were in her bedroom.

The older daughter testified that while her legs and

mouth were held by her mother, Wright, Giles would be

“pumping me.” (Trial Tr. at 214-216, provided as Appen-

dix C.)

In admitting Dr. Jambura’s testimony concerning the

statements of the two-and-one-half year old victim, the

trial court explained, as set forth in State v. Giles, supra:

In this case, of course, there is physical

evidence to corroborate that sexual

abuse occurred. It also would seem to

be the case that there is no motive to

make up a story of this nature in a

child of these years. We’re not talking

about a pubescent youth who may fan-

tasize. The nature of the statements

themselves as to sexual abuse are such

that they fall outside the general

believability that a child could make

them up or would make them up. This

is simply not the type of statement, |

believe, that one would expect a child

to fabricate.?

We come ihen to the identification

itself. Are there any indicia of

reliability as to identification? From

the doctor’s testimony it appears that

the injuries testified to occurred at the

time that the victim was in the custody

of the Defendants. The [older daugh-

ter] has testified as to identification of

perpetrators. Those - the identification

of the perpetrators in this case are per-

sons well known to the [younger

daughter]. This is not a case in which a

child is called upon to identify a

9

stranger or a person with whom they

would have no knowledge of their

identity or ability to recollect and

recall. Those factors are sufficient indi-

cia of reliability to permit the admis-

sion of the statements.

Under these circumstances, the statements have

circumstantial guarantees of trustworthiness

equivalent to the other hearsay exceptions. Fur-

thermore, the interests of justice and the general

purposes of evidence were best served by

admission of these statements.

2 We note, as an additional indicia of reliability,

the absence of a custody battle over the younger

daughter. Unsubstantiated accusations of sexual

abuse sometimes arise when one parent seeks to

terminate custodial rights of the other parent. The

child’s coached remarks may be sought for use as an

evidentiary weapon by an unscrupulous parent. Tes-

timony given under these circumstances may be

unreliable and ruled inadmissible. Concern over

such abuse is not present here, however. The youn-

ger daughter was taken directly from the custody of

both parents and was then examined by Dr. Jambura

when the statements were made.

772 P.2d at 194-195. The Idaho Supreme Court in Giles

upheld the trial court’s determination that, under these

circumstances, the pediatrician’s testimony contained suf-

ficient indicia of reliability and circumstantial guarantees

of trustworthiness to be admissible under the catch-all

hearsay exception, Rule 803(24), I.R.E.

In holding that the admission of Dr. Jambura’s testi-

mony violated Wright’s right to confront witnesses

10

against her, the three member majority in Wright

explained:

Hearsay which falls into a well-established exception

is usually, but not always, reliable enough to satisfy

confrontation. Other hearsay, such as the declara-

tions of the younger Wright girl admitted in the

“catch-all” provision of Rule 803(24) I.R.E., should

be considered “presumptively unreliable and inad-

missible for Confrontation Clause purposes” absent a

“showing of particularized guarantees of trust-

worthiness.” Lee v. Illinois, 106 S.Ct. 2056, 2064

(1986).

Wright, slip op. at 5-6. (Emphasis added by the Idaho

Supreme Court.) The three member majority then enu-

merated what they saw as the minimal criteria demanded

of such testimony by the Confrontation Clause of the

Sixth Amendment to the United States Constitution:

We fail to see how Wright’s right to face-to-

face confrontation escaped violation in this

event of admission of inculpatory hearsay testi-

mony which did not fall within any of the tradi-

tional exceptions and which was brought into

evidence as a result of an interview lacking pro-

cedural safeguards. The record does not provide

the required showing of particularized guaran-

tees of trustworthiness supporting the doctor’s

statement of the young girl’s declarations.

Instead, the hearsay declarations of the younger

Wright girl are not trustworthy because of Dr.

Jambura’s interview technique: the questions and

answers were not recorded on video tape for preser-

vation and perusal by the defense at or before trial;

and, blatantly leading questions were used in the

interrogation. Further, the statements lack trust-

worthiness because this interrogation was per-

formed by someone with a preconceived idea of what

11

the child should be disclosing. Because of the com-

bined effect of her tender years and the sugges-

tive, inadequately reviewable interview

technique applied by Dr. Jambura, we conclude

that Dr. Jambura’s testimony regarding the

younger Wright girl’s declarations lacked the

particularized guarantees of trustworthiness

necessary to satisfy the requirements of the Con-

frontation Clause.

The doctor’s interview was conducted with-

out procedural safeguards sufficient to provide

meaningful cross-examination or review as to its

integrity.

State v. Wright, slip op. at 6 (emphasis added).

While apparently accepting the trial court’s deter-

mination that sufficient indicia of reliability existed to

admit such testimony under the catch-all hearsay excep-

tion of Rule 803(24), I.R.E., the Idaho Supreme Court in

Wright explained that the Sixth Amendment’s Confronta-

tion Clause demands more:

By no means can one say that the “partic-

ularized guarantees of trustworthiness”

required to withstand objection pursuant to the

Confrontation Clause are demonstrable in this

case. Where courts have admitted the hearsay

declarations of child witnesses, statements were

overwhelmingly found to be reliable only

because they were excited utterances (Rule

803(2) I.R.E.) or part of the res gestae

Conversely, courts examining admissibility of

incompetent witnesses’ declarations occurring

appreciably after the incident generally exclude

the declarations, .. .

Dr. Jambura’s testimony as presented lacked

particularized guarantees of trustworthiness

12

and, in fact, is fraught with the dangers of unre-

liability which the Confrontation Clause is

designed to highlight and obviate.

State v. Wright, slip op. at 12-13.

The trial court found sufficient indicia of reliability

for the admission of the statement in which the younger

girl responded affirmatively when Dr. Jambura asked if

daddy touched her with his “pee-pee.” The indicia of

reliability included (1) the physical evidence of sexual

penetration, (2) the testimony of her five-year old sister

who was an eye-witness to the sexual abuse of the youn-

ger girl and who testified at trial, (3) the fact the two-and-

one-half year old victim had no motive to make up a

story such as this, (4) the fact this is not the type of

statement one would expect such a young child to fabri-

cate, and (5) the fact the two-and-half year old victim had

been taken directly from the custody of Wright and Giles

and then was examined by Dr. Jambura. The Idaho

Supreme Court also held that sufficient indicia of

reliability existed for admission of the questioned testi-

mony into evidence pursuant to Rule 803(24). State v.

Giles, 772 P.2d at 194-95.

Despite this, the Wright majority held that admission

of Dr. Jambura’s testimony concerning the statements

made to him during his interview of the two-and-one-half

year old victim, none of which implicated Wright, vio-

lated Wright’s sixth amendment right to confrontation of

witnesses. The court explained that sufficient “partic-

ularized guarantees of trustworthiness” did not exist

because (1) the doctor’s examination and interview of the

two-and-one-half year old victim was neither video nor

audio taped, (2) Dr. Jambura asked the two-and-one-half

13

year old victim leading questions including, “Does your

daddy touch you with his pee-pee?”, and (3) Dr. Jambura

“may well have had preconceptions” in that he had

examined the victim's older sister the previous day after

she complained of being sexually abused. State v. Wright,

slip op. at 12. Holding that admission of this evidence did

not constitute harmless error, the court reversed the con-

viction of Wright for sexual abuse of her two-and-one-

half year old daughter. Id. at 13-14.

——

REASONS FOR GRANTING THE WRIT

The State of Idaho submits that the Idaho Supreme

Court has decided a federal question which presents an

issue of major significance. What accommodations must

be made to preserve a defendant's sixth amendment right

to confront witnesses against her, and at the same time

provide the jury with the necessary relevant evidence to

permit them to find the truth, is a federal question of

significant proportion.

Sexual abuse of very young children has become

almost commonplace in the United States. As Justice

O’Connor observed in her concurring opinion in Coy v.

lowa, 487 U.S. __, 101 L.Ed.2d 857, 868, 108 S.Ct. 2798,

2803 (1988): “Child abuse is a problem of disturbing

proportions in today’s society.” And Justice Blackmun

noted in his dissent:

Between 1976 and 1985, the number of reported

incidents of child maltreatment in the United

States rose from .67 million to over 1.9 million,

with an estimated 11.7 percent of those cases in

1985 involving allegations of sexual abuse.

14

101 L.Ed.2d at 873, 108 S.Ct. at 2808. Especially when the

victim of the sexual abuse is only two-and-one-half years

old, the defendant's right to confront witnesses against

him/her must be weighed against the compelling state

interest in protecting child victims of sexual abuse.’ The

legislatures and the courts throughout the United States

have been confronted with the difficult issue of weighing

the defendant’s sixth amendment right to confront wit-

nesses against her, against the compelling state interest in

protecting child victims of sexual assaults.

This Court has recognized that competing interests, if

closely examined, may warrant dispensing with confron-

tation at trial. See, Ohio v. Roberts, 448 U.S. 56, 64, 65

L.Ed.2d 597, 100 S.Ct. 2531 (1980); Mattox v. United States,

156 U.S. 237, 243, 39 L.Ed. 409, 15 S.Ct. 337 (1894). As

explained in Ohio v. Roberts:

This Court, in a series of cases, has sought

to accommodate these competing interests. True

to the common-law tradition, the process has

been gradual, building on past decisions, draw-

ing on new experience, and responding to

changing conditions.

448 U.S. at 64, 65 L.Ed.2d at 607, 100 S.Ct. at 2538. The

State of Idaho submits that the time has now come to

draw on the new experiences which have been felt in the

courtrooms across the nation and which many state legis-

latures have attempted to deal with concerning society's

1 Protecting the physical and psychological well-being of

children is a compelling state interest. New York v. Ferber, 458

U.S. 747, 756-757, 73 L.Ed.2d 1113, 102 S.Ct. 3348 (1982); Globe

Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 73 L.Ed.2d

248, 102 S.Ct. 2613 (1982).

15

responsibility in adequately handling the sexual abuse of

very young children. As a result of the huge increase in

reported sexual abuse of very young children and the

resulting increase in criminal prosecutions, courts and

legislatures have established methods to facilitate the

admission of crucial evidence into court. One method

provides for the admission of reliable hearsay statements

of the victim of sexual abuse, while at the same time

considering the defendant's sixth amendment right to

confront witnesses against her.?

In Ohio v. Roberts, supra, this Court explained:

In sum, when a hearsay declarant is not

resent for cross-examination at trial, the Con-

rontation Clause normally requires a showing

that he is unavailable. Even then, 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.

448 US. at 66, 65 L.Ed.2d at 608, 100 S.Ct. at 2539.

? Many states have enacted statutory hearsay exceptions

to provide for admission of victim’s statements. See, e.g., Colo.

Rev. Stat. § 13-25-129 (Supp. 1986) (enacted 1983); Ind. Code

Ann. § 35-37-4-6 (Burns Supp. 1984) (enacted 1984); Idaho

Code § 19-3024 (1987) (enacted 1986); Kan. Stat. Ann.

§ 60-460(dd) (1983) (enacted 1982); Minn. Stat. § 595.02(3)

(1988) (enacted 1984); S.D. Codified Laws Ann. § 19-16-38

(1987) (enacted 1984); Utah Code Ann. § 76-5-411 (Supp. 1989)

(enacted 1983); Wash. Rev. Code Ann. § 9A.44.120 (1988)

(enacted 1982).

16

Some hearsay statements of a sexually abused child

clearly fall within an established exception to the hearsay

rule, such as the excited utterance exception. Even this

exception has been expanded to accommodate the cir-

cumstances of child sexual abuse where the report may

be made after a lapse of time. See State v. Parker, 112 Idaho

1, 730 P.2d 921 (1986), reh’g denied (1987); U.S. v. Iron Shell,

633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001, 101

S.Ct. 1709, 68 L.Ed.2d 203 (1981); U.S. v. Nick, 604 F.2d

1199 (9th Cir. 1979). Likewise, the medical exception to

the hearsay rule has been liberally used in sexual abuse

prosecutions. State v. Nelson, 138 Wis. 2d 418, 406 N.W.2d

385 (Wis. 1987), habeas corpus granted, Nelson v. Ferrey, 688

F.Supp. 1304 (E.D. Wis. 1988), rev'd, 874 F.2d 1222 (7th Cir.

1989), reh’g denied, (1989); State v. Vosika, 830 Or. App. 298,

731 P.2d 449 (1987), on reconsideration, 85 Or. App. 148, 735

P.2d 1273 (1987); State v. Bellotti, 383 N.W.2d 308, 312

(Minn. Ct. App. 1986), review denied, (1986); United States

v. Renville, 779 F.2d 430 (8th Cir. 1985).

Sexual abuse, especially of very young children, is

often done by an individual in a position of trust over the

victim and often is done over a period of time.* Because

of this, when the abuse is finally reported it is often

reported in a manner which does not fit within one of the

established exceptions to the hearsay rule. Legislatures

across the country have responded to this dilemma by

enacting statutory hearsay exceptions, while courts have

3 MacFarlane, “Sexual Abuse of Children,” in Victimization

of Women 81 (J.Chapman & M.Gates eds. 1978); J. Herman,

Father-Daughter Incest (1981); S. Butler, The Conspiracy of Silence

(1978).

ee

- ee

17

reacted by admitting a child victim’s hearsay statement

through a somewhat liberal application of the sponta-

neous exclamation exception, the medical treatment

exception, or pursuant to the catch-all hearsay exception,

such as Rule 803(24), I.R.E. Yet, an acceptable solution to

the problem has not been found, unless these statutory

hearsay exceptions and hearsay admitted pursuant to the

catch-all hearsay exception survive scrutiny when mea-

sured against the defendant’s sixth amendment right to

confront witnesses.

As this Court set forth in Ohio v. Roberts, where a

“showing of particularized guarantees of trustworthi-

ness” is made, admission of the child victim’s hearsay

may comply with the defendant's sixth amendment right

to confront witnesses. But, at issue remains what an ade-

quate showing of “particularized guarantees of trust-

worthiness” is. In the case at hand the trial court

admitted the hearsay after finding sufficient indicia of

reliability. The Idaho Supreme Court agreed that suffi-

cient indicia of reliability and particularized guarantees

of trustworthiness existed for admission of the same testi-

mony into evidence pursuant to Rule 803(24). State v.

Giles, 772 P.2d at 194-95. Despite meeting the admis-

sibility requirements of the catch-all hearsay exception,

the Idaho Supreme Court held that admission of Dr.

Jambura’s testimony concerning the statements made to

him during his interview of the two-and-one-half year

old victim, none of which implicated Wright, violated

Wright’s sixth amendment right to confrontation of

witnesses.

The Idaho Supreme Court essentially held that before

the hearsay statement of a victim of child sexual abuse

18

may be admitted into evidence, the Confrontation Clause

of the Sixth Amendment to the United States Constitution

requires that “procedural safeguards sufficient to provide

meaningful cross-examination or review as to its integ-

rity” must be followed. According to the court, these

minimal safeguards required by the Confrontation Clause

include: (1) the state must provide the defendant with

either an audio or video tape of the interview in which

the statement was made, (2) no leading questions may be

used in the interview of the child sexual abuse victim,

and (3) the interview must be conducted by an individual

who has no preconceived ideas of what the child should

be disclosing.

This holding of the Idaho Supreme Court stands nor-

mal Confrontation Clause jurisprudence on its head. The

essence of such jurisprudence in the context of hearsay

evidence that does not fall “within a firmly rooted hear-

say exception” is the conduct of a “case-by-case inquiry

into reliability.” Coy v. lowa, 487 U.S. __, 101 L.Ed.2d at

875, 108 S.Ct. at ___ (Justice Blackmun, dissenting). This

inquiry had already been made and the testimony found

sufficiently reliable to be admissible under the catch-all

hearsay exception. The Idaho Supreme Court nonetheless

felt compelled to strike the testimony and overturn the

conviction because of what it understood to be three

additional per se requirements of the Confrontation

Clause.

Although the state has been unable to find any other

appellate decision which has imposed such stringent

requirements on the admission into evidence of the hear-

say statement of a victim of child sexual abuse, no clear

19

rule of law presently exists providing guidance for the

admission into evidence of such evidence.

The State of Idaho submits that the time has come for

this Court to provide guidance as to what “indicia of

reliability” and what “particularized guarantees of trust-

worthiness” must be shown to exist, in a child sexual

abuse case, to comply with the defendant's sixth amend-

ment right to confront witnesses against her.

+o

CONCLUSION

The State of Idaho prays that its petition for writ of

certiorari be granted and that oral argument be sched-

uled, or that its petition for writ of certiorari be granted

and the decision of the Idaho Supreme Court be sum-

marily reversed.

DATED this 11th day of August, 1989.

Respectfully submitted,

James T. Jones

Attorney General of the

State of Idaho

Myrna A. I. STAHMAN

Deputy Attorney General

Statehouse, Room 210

Boise, Idaho 83720

Telephone: (208) 334-2400

Counsel of Record

App. 1

APPENDIX A

1989 Opinion No. 85

IN THE SUPREME COURT OF THE STATE OF IDAHO

No. 17033

STATE OF IDAHO

Plaintiff-respondent, Boise, November 1988

Term

Filed: June 13, 1989

Frederick C. Lyon, Clerk

V.

LAURA LEE WRIGHT,

Defendant-appellant.

Appeal from the District Court of the Fourth Judicial

District of the State of Idaho, in and for the County of

Ada. Honorable Gerald F. Schroeder, District Judge.

Appeal from conviction of count of lewd conduct

with a minor under sixteen. Pediatrician testified at trial

to hearsay declarations of two-and-one-half year old

alleged sexual abuse victim identifying co-defendants as

perpetrators during interview. Testimony erroneously

admitted in violation of standards applicable to the Con-

froniation Clause. Conviction reversed and case remanded for

new trial consistent herewith.

Rolf M. Kehne, Boise, Idaho, attorney for the

appellant.

Hon. Jim Jones, Attorney General, Boise, Idaho

attorney for respondent. Myrna A.I. Stahman,

Deputy Attorney General, argued.

HUNTLEY, J.

App. 2

Laura Lee Wright appeals her conviction on one

count of lewd conduct with a minor under sixteen, felony,

I.C. § 18-1508. Wright was jointly charged with Robert L.

Giles who was also convicted on two counts of lewd

conduct with a minor for having jointly committed the

stated crimes against her two daughters, aged 5'/2 (older

daughter) and 2'/2 (younger daughter) when the crimes

were charged. Wright was found to have held her daugh-

ters down to permit co-defendant, Giles, to have sexual

intercourse with each. Giles and Wright were jointly tried

and convicted by the same jury. Wright was sentenced to

twenty years, indeterminate, on each count, the terms to

run concurrently.

Wright and Giles each filed a separate appeal seeking

reversal of their conviction on the count charged with

respect to the acts against the younger daughter. This

Court filed an opinion in State v. Giles, Supreme Court

No. 17034, __ Idaho __, __ P.2d ___ 1989) on March 30,

1989, wherein a majority affirmed Giles’ conviction not-

withstanding his argument that admission of Dr. Jam-

bura’s testimony violated the rule against hearsay. The

majority opinion in Giles held that the same testimony

challenged herein was correctly admitted into evidence

under I.R. E. 803(24) pursuant to the authority of State v.

Hester, 114 Idaho 668, 760 P.2d 27 (1988).! Unlike Wright,

Giles did not raise the question of violation of the

' The author continues to subscribe to the view articulated

in his “concurrence in the result” in Giles with regard to the

hearsay rule, but acknowledges that the majority view

expressed in Giles is now the law of this state and is, therefore,

controlling herein.

App. 3

Confrontation Clause of the Constitution of the United

States and the majority was of the opinion that this Court

could not raise that issue on its own motion. The issue of

error under the Confrontation Clause is appropriately

raised in the instant case and we hold that the trial court

erred in admitting this testimony in violation of the stan-

dards applicable to the Confrontation Clause of the

United States Constitution.

J

TESTIMONY

The trial court permitted Dr. John Jambura, a pedi-

atrician who conducted a physical examination of the

younger Wright girl and asked her whether sexual abuse

occurred between her and the two co-defendants, to tes-

tify concerning hearsay statements made to him by the

younger Wright daughter. This evidence was admitted

over the defendants objection. The younger Wright

daughter was three years old at the time of the trial and

only two-and-one-half years old at the time of the out-of-

court statements to Dr. Jambura. She did not testify at

trial. After the judge conducted a voir dire examination of

the child, he asked both counsel if they agreed that she

was not capable of communicating to the jury and both

agreed she was not competent to testify.

Dr. Jambura examined and interviewed the younger

daughter and was allowed to testify to her responses to

four questions, his testimony being:

....“Do you play with daddy? Does daddy play

with you? Does daddy touch you with his pee-

pee? Do you touch his pee-pee?” And again we

App. 4

then established what was meant by pee-pee, it

was a generic term for genital area.

Q. Before you get into that, what was, as best

you recollect, what was her response to the

question “Do you play with daddy?”

A. Yes, we play — I remember her making a

comment about yes we play a lot and expanding

on that and talking about spending time with

daddy.

Q. And “Does daddy play with you?” Was

there any response?

A. She responded to that as well, that they

played together in a variety of circumstances

and, you know, seemed very unaffected by the

question.

Q. And then what did you say and her

response?

A. When I asked her “Does daddy touch you

with his pee-pee,” she did admit to that. When I

asked, “Do you touch his pee-pee,” she did not

have any response.

She allegedly then volunteered that her daddy ”. . . .does

do this with me, but he does it a lot more with my sister

than with me.”

The trial court admitted these statements under Rule

803(24) I.R.E. which provides:

Rule 803. Hearsay exceptions; availability of

declarant immaterial. - The following are not

excluded by the hearsay rule, even though the

declarant is available as a witness.

(24) Other exceptions. A statement not specifi-

cally covered by any of the foregoing exceptions

App. 5

but having equivalent circumstantial guarantees

of trustworthiness, if the court determines that

(A) the statement is offered as evidence of a

material fact; (B) the statement is more proba-

tive on the point for which it is offered than any

other evidence which the proponent can procure

through reasonable efforts; and (C) the general

purposes of these rules and the interests of jus-

tice will best be served by admission of the

statement into evidence. A statement may not be

admitted under this exception unless the propo-

nent of it makes known to the adverse party

sufficiently in advance of the trial or hearing to

provide the adverse party with a fair oppor-

tunity to prepare to meet it, the proponent’s

intention to offer the statement and the particu-

lars of it, including the name and address of the

declarant.

II. CONFRONTATION

Wright argues that even if admission of the doctor’s

testimony was not erroneous under the rule against hear-

say, it was, nonetheless, erroneous because it violated the

dictates of the Confrontation Clause of the United States

Constitution. The sixth amendment to the United States

Constitution provides in part that “in all criminal pros-

ecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const.

Amend. VI. This provision is applicable to the states

through the fourteenth amendment. Pointer v. Texas, 380

U.S. 400, 403, 85 U.S. 1065, 1068 (1965).

The purpose of the right of confrontation is to

“advance ‘the accuracy of the truth-determining process

in criminal trials’” by allowing only reliable evidence to

be admitted. Tennessee v. Street, 471 U.S. 409, 415, 105 S.Ct.

App. 6

2078, 2082 (1985), (quoting Dutton v. Evans, 400 U.S. 74, 89

(1970)). “The right to confront and cross-examine wit-

nesses is primarily a functional right that promotes

reliability in criminal trials.” Lee v. Illinois, 106 S.Ct. at

2056, 2062 (1986).

The Confrontation Clause objective of reliability is

met by cross-examination, an opportunity for the jury to

observe the witness’ demeanor, and face-to-face confron-

tation between the witness and the accused. “[A] major

reason underlying the constitutional confrontation rule is

to give a defendant charged with a crime an opportunity

to cross-examine the witnesses against him.” Pointer v.

Texas, 380 U.S. at 406-07. Concerning the opportunity for

the jury to observe demeanor, the Supreme Court men-

tioned the importance of live testimony, when a witness

stands “face to face with the jury in order that they may

look at him, and judge by his demeanor upon the stand

and the manner in which he gives his testimony whether

he is worthy of belief.” Mattox v. United States, 156 U.S.

237, 242-43 15 S. Ct. 337, 339 (1895). The purpose of

confrontation between an accuser and defendant is that it

“undoubtedly makes it more difficult to lie against some-

one, particularly if that person is an accused and is pres-

ent at trial.” Ohio v. Roberts, 448 U.S. 56 at 63 n. 6, 100 S.

Ct. 2531, 2538. Only last year, the United States Supreme

Court found that the sexual assault defendant’s right to

face-to-face confrontation was violated by permitting two

13-year-old girls to testify behind a large screen that

enabled Coy to dimly perceive the witnesses but ren-

dered them unable to see him. Coy v. lowa,__ US. _,

108 S.Ct. 2798, 101 L.Ed.2d 857, 43 Cr.L. 3226, 56 L.W.

4932 (1988).

App. 7

The hearsay rules and the Confrontation Clause have

similar policy objectives. California v. Green, 399 U.S. 149,

155, 90 S. Ct. 1930, 1933 (1970). However, they are not

coextensive. Some out-of-court declarations which are

admissible under hearsay exceptions may violate con-

frontation rights. E.g., Green, 399 U.S. at 153-156; Bruton v.

United States, 391 U.S. 123, 188 S. Ct. 1620 (1968). The

impact of the Confrontation Clause upon the admis-

sibility of hearsay is difficult to analyze. “Few tasks in

criminal evidence are more perplexing than to describe

the effect of the Confrontation Clause of the sixth amend-

ment upon the hearsay doctrine.” 4 LOUSELL &

MUELLER, FEDERAL EVIDENCE § 418 at 123 (1970).

Hearsay which falls into a well-established exception is usu-

ally, but not always, reliable enough to satisfy confrontation.

Other hearsay, such as the declarations of the younger Wright

girl admitted in the “catch-all” provision of Rule 803(24)

I.R.E. should be considered “presumptively unreliable and

inadmissible for Confrontation Clause purposes” absent a

“showing of particularized guarantees of trustworthiness.” Lee

v. Illinois, 106 S.Ct. 2056, 2064 (1986). (Emphasis added.)

We fail to see how Wright’s right to face-to-face con-

frontation escaped violation in this event of admission of

inculpatory hearsay testimony which did not fall within

any of the traditional exceptions and which was brought

into evidence as a result of an interview lacking pro-

cedural safeguards. The record does not provide the

required showing of particularized guarantees of trust-

worthiness supporting the doctor’s statement of the

young girl’s declarations. Instead, the hearsay declara-

tions of the younger Wright girl are not trustworthy

App. 8

because of Dr. Jambura’s interview technique: the ques-

tions and answers were not recorded on videotape for

preservation and perusal by the defense at or before trial;

and, blatantly leading questions were used in the inter-

rogation. Further, the statements lack trustworthiness

because this interrogation was preformed by someone

with a preconceived idea of what the child should be

disclosing. Because of the combined effect of her tender

years and the suggestive, inadequately reviewable inter-

view technique applied by Dr. Jambura, we conclude that

Dr. Jambura’s testimony regarding the younger Wright

girl’s declarations lacked the particularized guarantees of

trustworthiness necessary to satisfy the requirements of

the Confrontation Clause.

The doctor’s interview was conducted without pro-

cedural safeguards sufficient to provide meaningful

cross-examination or review as to its integrity. To assess

the impact of Dr. Jambura’s interview techniques, it is

necessary to review some precepts of developmental

psychology.

Children’s cognitive abilities do not merely increase

quantitatively. They go through recognizable stages

which have been recognized as qualitatively different.

Childhood cognition is fundamentally different from

thinking and recalling in adults. See e.g., J]. Piaget, THE

LANGUAGE AND THOUGHT OF THE CHILD. (1926).

Some authorities state that most of the development of

accurate recall skills occurs between ages five and ten.

Johnson & Foley, Differentiating Fact from Fantasy: The

Reliability of Children’s Memory 40 J. SOC. ISSUES 33, 34-36

(1984). Younger children have memories, but may lack

the ability to recall and relate them. Id.; Loftus & Davies,

App. 9

Distortions in the Memory of Children, 40 J. SOC. ISSUES, 51

54 (1984). Leading questions, such as those asked by Dr.

Jambura, are tempting because they may serve to help a

child recall. However, they are extremely dangerous as a

means leading to admissible evidence at a criminal trial

(as opposed to as an aid in therapy for the child) because

of the nature of children’s memory. Even adult’s memory

can be tainted to the point that their actual testimony is

deemed too unreliable to be admitted without offense to

due process. Examples include the tainted identification

resulting from an unduly suggestive lineup or the effect

of hypnosis. Cf. State v. lwakiri, 106 Idaho 618, 682 P.2d

571 (1984) (in determining question of admissibility of

hypnotically induced testimony, circumstances surround-

ing hypnotic sessions should be examined in light of

suggestive safeguards, and it should then be determined

if, in the totality of circumstances, it appears that testi-

mony proposed is sufficiently reliable to merit admis-

sion). The problem of tainted memory is much more

severe in young children. See e.g., Cohen & Harnick, The

Susceptibility of Child Witnesses to Suggestion, 4 LAW &

HUMAN BEHAVIOR 210 (1980).

The risk with young children is that they may be

unable to distinguish between a memory of something

which actually happened from a memory of something

they imagine happening. See e.g. Johnson & Foley, supra,

at 45. If an interview technique leads a child to imagine

an event, the child’s memory of that imagined event will

be indistinguishable from memories of events which the

child actually experienced. Loftus & Davies, supra, at

52-53. Once this tainting memory has occurred, the prob-

lem is irremediable. That memory is, from then on, as real

App. 10

to the child as any other. This “confabulation” is precisely

the problem with hypnotically enhanced memory dis-

cussed by this Court in Iwakiri, 100 Idaho 618. See, Loftus

& Davies, supra, at 65; Stafford, The Child as a Witness, 37

Wash. L. Rev. 303 at 309 (1962).

In addition to leading questions, other circumstances

can lead to memory confabulation. A person the child

perceives to have high status will more easily influence

the child to accept suggestions. It is therefore critical that

neither the interviewer nor anyone else present have

preconceptions. Goodman & Hegelson, Child Sexual

Assault: Children’s Memory & the Law, 40 U. Miami L. Rev.

181, 187-97 (1985).

The research discussed in the literature cited above is

consistent with the testimony of Dr. Thurber, an expert in

child psychology who testified for the defendant at trial.

A. Well, children who have a mental age of

five years and chronological age of five years

would have difficulty distinguishing fantasy

from reality. The work of John Paiget, the great

Swiss Psychologist, indicates that children of

five, on the average, are unable to distinguish

things that they have thought about from things

that they’ve actually encountered in a world of

reality.

Children at the age of five years mentally have

problems in;retrieving memories, so memories

that are once stored have — are not consolidated,

so to speak, are placed in abstract conceptual

categories. The information may be there, it’s

just hard to retrieve it or bring it forth. And for

these reasons children of this age level are very

prone to respond to such things as leading ques-

tions. A question that implies information that

was not actually the world of reality may

App. 11

become part of memory of a child, believes that

that information fully occurred in the world of

reality [sic].

What I’m saying is that a child who was five

years eight months chronologically, but has a

mental age of 15 months or so below that, will

have even more severe problems in terms of

retrieving memories and prone to be influenced

by leading questions, will have problems distin-

guishing imagery, what they think about from

the actual outside world.

Q. Do I understand you to be saying then, Dr.

Thurber, that — correct me if I'm wrong, that

were I to discuss with a child a particular action

and event of that age that the child had not, in

fact, experienced and discussed at some length,

and asked the child to repeat it, that a child may

have trouble distinguishing whether that actu-

ally nappence to them or whether they’ve heard

about it?

A. That’s correct. It’s especially the case in

events that imply action. So if you describe for a

four or five-year-old child some kind of an

action-related behavior on the part of other peo-

ple, the child has particular problems in distin-

guishing the discussion, the information

presented verbally, from an actual experience

and may confuse the two. And this comes from

a lot of recent research at New York University

in regard to children and fantasy versus reality.

Q. Now, the child that confuses that what

they’ve heard with what actually happened to

them, and they recite what they’ve heard or

report what they’ve heard is that child lying in

the normal sense that we understand it?

A. Absolutely not. Lying in the normal sense

involves some kind of deception. To young chil-

dren about the age of five on the average what

App. 12

is in their memory is true regardless of how that

information got into the memory banks.

Q. If a child were to be reciting information

that is true, even if it’s not, in fact, happened

something that they’re heard and they've taken

into their minds as being true, is that likely to

affect how they react in the telling of it; their

body positions, their outward acting,

observations?

A. If a child is coming forth with what has

been stored in memory, their nonverbal behav-

iors will be very consistent with that informa-

tion. That is, they wouldn’t be able to

distinguish from what source the information

was stored.

Q. What are some of the pitfalls or dangers to

be aware of to be sure that you’re gathering

accurate data from a child?

A. My first response is they are probably too

numerous to mention. But, first and foremost,

the examiner, the evaluator, the interrogator

must be aware of personal biases and how those

biases can be reflected in an interview situation.

The primary consideration would be not to ask what

are termed closed-ended questions, questions that

can be asked — pardon me, questions that can be

answered yes or no. It has been found that an

interviewer's pre-existing assumptions and

biases can be reflected in these questions and

can guide children into the responses that the

interviewer wants to see.

So we ask open ended questions, questions that

cannot be answered yes or no. It has also been

found that interviewers can very subtly reward

the responses they want to see, and can shape

the answers of children. One of my colleagues in

ee

App. 13

the Portland area, Bill McGeiver has found that

simply by nodding the head and saying “um-

hum” he can shape, so to speak, gradually ~~

behaviors in young children that border on the

sexually bizarre, and these are children who

have had no sexual abuse in their background.

Now these are also very young children, I might

mention, from the four to six-year-old range.

So, an interviewer must be very, very aware that

very subtle cues such as a nod or saying “um-

hum” can reward young children, in effect, and

can shape and determine the responses that the

interviewer is going to see.

Attention, as such, is also a very important fac-

tor. If an interviewer has decided that a child

has been sexually abused, for example, that

interviewer will likely attend when the child

responds in a way that is consistent with the

assumptions, and will not attend if the child

responds in a way that is contrary to the pre-

existing assumption.

So, I think of the important issues here, the key

ones are open ended questions, be aware of pre-

existing biases, do not respond in subtle ways

that might reward the responses that you want

to see. We could go on and on. There are multi-

tudinous problems in interviewing children.

One of my colleagues who - from whom |

received training at the University of Oklahoma

Medical School has recently published a book

on the investigation and treatment of child

abuse, and is probably the nation’s authority at

this time, C. Eugene Walker, and his position is

that in initially approaching a child that pre-

sumably has been abused, that you use a very

nonstructured kind of situation. You don’t even

ask questions. Bring the child in a room with

many toys, many writing implements, papers.

Let the child just behave spontaneously and see

App. 14

what comes of this kind of a situation without

attempting to prompt or influence the child by

questions. And I would strongly support that

approach because of the many possibilities of

bias in terms of our questions.

Q. That sounds like a difficult task then to be

certain not to inject anything into the interview.

A. Very much so.

Q. How can one guard - the best techniques

for guarding against that so we can go back and

determine whether an interviewer has skewed

the information or injected their own feelings?

A. One consistent recommendation in the sexual

abuse area is that on the initial interview by a

professional, that the interview session itself be video

taped. Thus other professionals independently can

evaluate the quality of the interview techniques.

That's the only way.

Q. Is an audio tape valuable?

A. In lieu of, or as a substitute for the video

tape?

Q. Of course that won’t reflect the nonvocal —

A. Correct. That would be the problem with it.

So video tape is always recommended.

Q. Let’s talk about interviewing in one other

way. Assume, if you would, please, this sce-

nario: Pediatrician interviewing two-year-old child

with the following questions: “Do you play with

a Does daddy play with you? Do you ever

touch daddy's pee-pee? Does daddy ever touch his

pee-pee with you?”

How would you characterize that interview and

those questions in terms of good procedure, respons-

ible procedure that anyone should rely on?

App. 15

A. All were closed-ended questions. And an infer-

ence I would make here is that the pediatrician

would be in his or her office, probably wearing

a white coat, which is more likely to evoke an

acquiescence response; that is the child will

answer in the way that the interviewer wants to

hear. (Emphasis added.)

All the dangerous circumstances testified to by Dr. Thur-

ber and discussed in the literature were present in the

interview of the younger Wright girl.

The circumstances surrounding this interview dem-

onstrate dangers of unreliability which, because the inter-

view was not recorded, can never be fully assessed. Dr.

Jambura may well have had preconceptions. He knew

that the older Wright girl was alleging that she had been

sexually abused by Wright and Giles and, in fact, the

younger Wright girl had been brought to him by the

police for sexual abuse examination as a result of concern

occasioned by the older girl’s allegations. He did not

video tape or even audio tape the interview. He lost or

threw away the picture he worked with in communi-

cating with the little girl about what he meant by

“Daddy’s pee-pee.” By Dr. Jambura’s own testimony, he

asked questions which were leading, (e.g., “Does daddy

touch you with his pee-pee?”). He made no accurate

record, video, audio or otherwise of the younger Wright

girl’s responses; rather, he merely testified that she

“admitted” the facts assumed in his leading question.

Since there is no transcript or tape of this conversation, it

remains unclear what Dr. Jambura is calling an “admis-

sion” that Daddy (Robert Giles) touch her with his “pee-

pee.” Whether she said “yes” or nodded agreeably is

App. 16

unclear. In any event, she did not elucidate or use her

own words.

By no means can one say that the “particularized

guarantees of trustworthiness” required to withstand

objection pursuant to the Confrontation Clause are

demonstrable in this case. Where courts have admitted

the hearsay declarations of child witnesses, statements

were overwhelmingly found to be reliable only because

they were excited utterances (Rule 803(2) I.R.E.) or part of

the res gestae. The theory is that there was no time for

fabrication, coaching or confabulation and, therefore, the

guarantees of reliability shared by those traditional

exceptions to the rule against admission of hearsay state-

ments were present. Some examples of such admissible

hearsay include: People v. Ortega, 672 P.2d 215 (Colo. App.

1983) (excited utterance of a four year old); Kilgore v.

State, 340 S.E.2d 640 (Ga. App. 1986) (res gestae, declara-

tions of three year old); State v. Daniels, 380 N.W.2d 777

(Minn. 1986) (excited utterance concerning being locked

in a room during a fire); People v. Orduno, 145 Cal. Rptr.

806 (Cal. App. 1978) (spontaneous, exited utterance when

first in mother’s presence, right after being in defendant’s

presence); Lancaster v. People, 615 P.2d 720 (Colo. 1980)

(declaration made one-half hour after the sexual assault,

as soon as declarant was in her mother’s presence);

D.L.N. v. State, 590 S.W.2d 820 (Tex. 1979); Bishop v. State,

581 P.2d 45 (Okla. Cr. 1978) (“He hurt me, he hurt me”

immediately after incident). Conversely, courts examin-

ing admissibility of incompetent witness’ declarations

occurring appreciably after the incident generally exclude

the declarations, as in the following cases: Keefe v. State,

72 P.2d 425 (1937) (four year old made declaration to her

App. 17

parents several days after sodomy); State v. Jalette, 382

A.2d 526 (R.I. 1978); Brown v. State, 344 So.2d 641 (Fla.

App. 1977) (girl under fourteen made disclosure to her

mother three days after lewd conduct); State v. Lovely, 517

P.2d 81 (Ariz. 1973) (seven year old disclosed abuse to

policeman two weeks after lewd conduct); Scott v. State,

206 S.E.2d 558 (Ga. App. 1974).

Dr. Jambura’s testimony as presented lacks partic-

ularized guarantees of trustworthiness and, in fact, is

fraught with the dangers of unreliability which the Con-

frontation Clause is designed to highlight and obviate.

We are not convinced, beyond a reasonable doubt, that

the jury would have reached the same result had the error

not occurred.? Thus, we reverse Wright’s conviction on

the count charged with respect to the acts against the

younger daughter because of the Confrontation Clause

violation and remand the case for triai consistent

herewith.

BISTLINE and JOHNSON, JJ., concur.

SHEPARD, J., sat but did not participate due to his

untimely death.

BAKES, C.J., dissenting:

The Court today reverses Wright’s conviction

because of an alleged violation of the right to confronta-

tion under the sixth amendment to the United States

Constitution. The majority opinion concludes that “Dr.

2 The author has determined that the conclusion he

reached in his separate opinion in Giles with regard to the

harmfulness of the admission of Dr. Jambura’s testimony was

incorrect.

App. 18

Jambura’s testimony as presented lacks particularized

guarantees of trustworthiness and, in fact, is fraught with

the dangers of unreliability which the Confrontation

Clause is designed to highlight and obviate.” __ Idaho at

__, __ P.2d at __. The majority reaches this conclusion

after conducting an analysis totally unlike any confronta-

tion clause analysis previously used by any court, partic-

ularly the United States Supreme Court. As I deduced

from the opinion’s analysis, from now on all hearsay

statements by very young children are inadmissible

unless they are either (1) uttered spontaneously and

excitedly, or (2) made in response to “open-ended” ques-

tions from a specially trained professional during a vid-

eotaped interview and the evidence establishes that the

child’s memory was not “confabulated” by previous

improper interviews. To my knowledge no court, state or

federal, has ever held that the majority opinion’s pro-

posed standards are required by the sixth amendment

confrontation clause. The opinion cites no case, federal or

state, which has adopted such a severely limited applica-

tion of the federal confrontation clause “indicia of

reliability” test. Certainly the most recent decisions of the

United States Supreme Court have not imposed the above

requirements set out in the majority opinion. California v.

Green, 399 U.S. 149, 90 S.Ct. 1930 (1970), and Ohio v.

Roberts, 448 U.S. 56, 100 S.Ct. 253 (1980), hold that hear-

say is admissible under the confrontation clause if it

bears “particularized guarantees of trustworthiness” and

“indicia of reliability.” But, as those opinions point out,

the “particularized guarantees of trustworthiness” and

“indicia of reliability” are to be determined from all of the

facts and circumstances, not just the requirements set

App. 19

forth in the majority opinion. The United States Supreme

Court, which is the final arbiter of the interpretation and

requirements of the sixth amendment confrontation

clause of the United States Constitution, has never sug-

gested that the majority opinion’s standards are constitu-

tionally required. In utilizing this restrictive method of

analysis, the opinion errs seriously and essentially

ignores the “indicia of reliability test” set forth by the

United States Supreme Court.

While the majority opinion concludes that the hear-

say evidence of Dr. Jambura was erroneously admitted

because it violates the confrontation clause of the sixth

amendment of the United States Constitution, much of

the analysis sounds as though the opinion was based

upon state evidentiary law. Thus, by placing emphasis on

whether a child abuse victim’s statement to a professional

was “excited,” the majority opinion highlights hearsay

exception I.R.E. 803(2) to the exclusion of other hearsay

exceptions, particularly I.R.E. 803(24) which requires the

same circumstantial guarantees of truthfulness equivalent

to the excited utterance exception. The opinion seems to

wrongly conclude that a child’s words are only reliable

when uttered excitedly. However, as this Court pointed

out in State v. Hester, when comparing the other excep-

tions to the hearsay rule to the excited utterance excep-

tion in I.R.E. 803(2), “Once these elements [the elements

of trustworthiness required under I.R.E. 803(24)] are met,

the I.R.E. 803(24) exception is equally as valid as any

other hearsay exception, such as the universally accepted

present sense impression and the excited utterance excep-

tions, etc.” State v. Hester, 114 Idaho at 697, 760 P.2d at 36

(1988) (emphasis added.)

App. 20

Under the majority’s new standards for its confronta-

tion clause analysis, evidence which would otherwise

satisfy the “trustworthiness” and “indicia of reliability”

standard established by the United States Supreme Court,

especially corroborating physical and medical evidence,

appears to become irrelevant. Excited utterances seem to

be the only constitutionally accepted type of hearsay

which is admissible, short of complying with the new

standards which, as a practical matter, can never be met.

A child’s report of sexual abuse is not always spoken

excitedly, and it is not always directed at a professional

specificaily trained in interviewing child victim’s of sex-

ual abuse, as the majority now seems to require. A profes-

sional, such as a family pediatrician, may observe

evidence of sexual abuse while conducting a routine

examination of a young patient. The doctor may question

the youngster and receive important hearsay evidence.

Under the law pronounced today, this evidence will be

inadmissible unless the doctor was trained specifically to

interview child victims of sexual abuse and asked no

“closed-ended” questions. Furthermore, it is highly

unlikely that the interview would have been videotaped.

Family doctors do not normally film their examinations

of young patients; most probably do not have video

cameras in their examining rooms. Furthermore, many

rural communities do not have the financial means to set

up extensive videotape facilities to aid in the preparation

of criminal cases. Until today, there were no such require-

ments under either state or federal law.

The majority opinion also makes an erroneous appli-

cation of the facts of the case to its new confrontation

clause standard. For instance, the opinion’s discussion

ee Ee

App. 21

implies that the younger daughter’s statements came

after her memory was “confabulated” by previous

improper interviews. On the contrary, Dr. Jambura was

the first interviewer. Therefore, the record does not sup-

port a finding that the younger daughter’s statement to

Dr. Jambura was affected by prior memory confabulation

or improper tainting.

The majority’s opinion further concludes that, “The

[child’s] statements lack trustworthiness because this

interrogation was performed by someone with a precon-

ceived idea of what the child should be disclosing.” __

Idaho at__,___ P.2d at __. This statement suggests that

the Court is setting an additional standard, which

requires that the interrogation be performed by someone

who has no idea what the child will be disclosing. In the

usual case the specially trained professional will be

advised of the purpose of the physical examination,

either by the parents or by the authorities, and thus will

have “a preconceived idea of what the child should be

disclosing,” which the majority opinion says disqualifies

him from testifying. This case is such an example. The

day before Dr. Jambura examined the 2'/2 year old girl, he

had also examined her 5 year old sister and uncovered

evidence of sexual abuse on the older girl. He was also

informed of the older sister’s statement to law enforce-

ment and medical personnel explaining how she and her

sister had been sexually abused by Wright and Giles. He

also knew that the younger daughter had just been taken

away from her parents and put into protective custody.

To automatically disqualify a.. interviewer because he has

“a preconceived ides of what the child should be disclos-

ing” will, in all probability, eliminate the use of nearly all

App. 22

statements made by young children to medical doctors,

psychologists or social workers. That result is certainly

not required by the confrontation clause of the sixth

amendment of the United States Constitution, according

to the decisions of the United States Supreme Court. Ohio

v. Roberts, 448 U.S. 56, 100 S.Ct. 253 (1980); California v.

Green, 399 U.S. 149, 90 S.Ct. 1930 (1970) And it certainly is

not required under the evidentiary laws of the State of

Idaho, as our recent cases have held. State v. Giles, __

Idaho __, __ ~P2d ____ (1989); State v. Hester, 114 Idaho

688, 760 P.2d 17 (1988).

I would affirm the judgment and sentence of the

district court for the same reasons set out in our opinion

dealing with the co-defendant Giles in State v. Giles, supra.

App. 23

APPENDIX B

STATE of Idaho, Plaintiff-respondent,

v.

Robert L. GILES, Defendant-appellant.

No. 17634.

Supreme Court of Idaho.

March 30, 1989.

Defendant was convicted in the Fourth Judicial Dis-

trict Court, Ada County, Gerald F. Schroeder, J., of lewd

conduct with a minor under 16 and he appealed. The

Supreme Court, Bakes, J., held that hearsay statements of

three-year-old victim were admissible.

Affirmed.

Johnson, J., filed a specially concurring opinion.

Huntley, J., filed an opinion concurring in the result.

Bistline, J., filed a dissenting opinion.

Alan E. Trimming, Ads County Public Defender,

Boise, for defendant-appellant. Deputy Public Defender

Richard D. Toothman argued.

Jim Jones, Atty. Gen., Boise, for plaintiff-respondent.

Myrna A.I. Stahman, Deputy Atty. Gen., argued.

BAKES, Justice.

Defendant Robert L. Giles (Giles) appeals his convic-

tion on two counts of lewd conduct with minor children

under the age of sixteen years. Giles was jointly charged

with Laura Lee Wright who was also convicted for the

App. 24

same crimes which were jointly committed against her

two daughters, aged 5'/2 (older daughter) and 2'/2 (youn-

ger daughter) when the crimes were charged. Giles and

Wright were jointly tried and convicted by the same jury.

The defendant Giles filed a separate appeal. We affirm.

The older daughter was born April 1, 1981, to Laura

Wright and Louis Wright, who separated from one

another on September 22, 1982. Her parents reached an

informal agreement whereby each parent would have

custody of their daughter for consecutive 6-month

periods. The younger daughter was born April 4, 1984, to

Laura Wright and the defendant Robert Giles. She was

living with them at the time the lewd conduct was

committed.

On October 7, 1986, Louis Wright took custody of the

older daughter pursuant to the agreement. On November

8, 1986, the older daughter revealed to Cynthia Goodman,

Louis Wright's girlfriend, that she had been sexually

abused by her mother and Giles. The older daughter also

stated that her younger half-sister had been sexually

abused as well.' The following day, November 9, 1986,

Goodman reported the sexual abuse of the two girls to

the police. Examinations of the older daughter that day

by three doctors revealed an abrasion near the vaginal

opening, an evidence of a hymeneal ring, a fairly large

bruise on the left upper leg and a slightly larger vaginal

' At trial, held My 6-12, 1987, the older daughter testified

that Giles had intercourse with the younger sister while Laura

held the Younger sister’s legs and covered her mouth so she

wouldn’t scream.

App. 25

opening than would be expected for a girl her age. One of

the three, Dr. Jambura, a pediatrician with extensive

experience in child abuse cases, testified that it was

“highly possible that vaginal penetration had been occur-

ring on a relatively regular basis.”

That same day, the younger daughter was taken from

her mother and Giles and into custody by a police officer

and a social worker. The next day, Dr. Jambura examined

the younger daughter. His examination revealed some

redness and bruises in the early stages of healing on the

inner surface of the labiuro majors and the labiuro minors

and some scarring on the back portion of the vagina. The

healing area around the vagina was inflamed and

swollen. Dr. Jambura explained that it is very difficult to

bruise the labium minors and the bruising on the surfaces

of both labia suggests that forcible contact was made with

the inner genital area. He testified that these injuries were

“strongly suggestive of sexual abuse with vaginal con-

tact.” Dr. Jambura believed the trauma occurred approx-

imately 2-3 days prior to the examination.

During Dr. Jambura’s examination of the younger

daughter, the two engaged in conversation. Over defense

objection, Dr. Jambura testified at trial regarding this

conversation:

A. [By Dr. Jambura].. . She started to carry on

a very relaxed animated conversation. | then

proceeded to just gently start asking questions

about, “Well, how are things at home,” you

know, those sorts. Gently moving into the

domestic situation and then moved into four

questions in particular, as | reflected in my

records, “Do you play with daddy? Does Daddy

play with you? Does daddy touch you with his

App. 26

pee-pee? Do you touch his pee-pee?” And again

we then established what was meant by pee-

pee, it was a generic term for genital area.

Q. [By the prosecutor] Before you get into that,

what was, as best you recollect, what was her

response to the question “Do you play with

daddy?”

A. Yes, we play - I remember her making a

comment about yes we play a lot and expanding

on that and talking about spending time with

daddy.

Q. And “Does daddy play with you?” Was

there any response?

A. She responded to that as well, that they

played together in a variety of circumstances

ied. you know, seemed very unaffected by the

question.

Q. And then what did you say and her

response?

A. When I asked her “Does daddy touch you

with his pee-pee,” she did admit to that. When I

asked, “Do you touch his pee-pee,” she did not

have any response.

Q. Excuse me. Did you notice any change in

_ her affect or attitude in that line of questioning?

A. Yes.

Q. What did you observe?

A. She would not - oh, she did not talk any

further about that. She would not elucidate

what exactly — what kind of touching was taking

place, or how it was happening. She did, how-

ever, say that daddy does do this with me, but

he does it a lot more with my sister than with

me.

App. 27

Q. And how did she offer that last statement?

Was chat in response to a question or was that

just a volunteered statement?

A. That was a volunteered statement as | sat

and waited for her to respond, again after she

sort of clammed-up, and that was the next state-

ment that she made after just allowing some

silence to occur.

Giles raises one issue on appeal: whether the trial

court properly allowed Dr. Jambura to testify concerning

the out-of-court statements made to him by the younger

daughter.

We first note that the trial court conducted a voir dire

examination of the younger daughter to determine

whether she was capable of communicating to the jury.

He determined that she was not and counsel agreed.

We recently decided a case with unfortunaie sim-

ilarity to this case. In State v. Hester, 114 Idaho 688, 760

P.2d 27 (1988), we held that hearsay statements of a three-

year-old sexual abuse victim were properly admitted

under the hearsay exception contained in I.R.E. 803(24),

concluding that the trial court’s admission of such a

statement was a proper exercise of discretion where the

court had considered all of the factors set out in I.R.E.

809(24). We held:

To be admissible under I.R.E. 803(24), the court

must determine that (A) the, statement has cir-

cumstantial guarantees of trustworthiness

equivalent to those in Rules 803(1) to 803(23),

(B) the statement is offered as evidence of a

material fact, (C) the statement is more proba-

tive on the point for which it is offered than any

other evidence which the proponent can procure

through reasonable efforts, and (D) the general

App. 28

purposes of the rules of evidence, and the inter-

ests of justice, will best be served by admission

of the statement into evidence. Further, (E) a

statement may not be admitted under I.R.E.

803(24) unless its proponent gives the adverse

party adequate notice and information regard-

ing use of the statement. Once these elements

are met, the I.R.E. 803(24) exception is equally as

valid as any other hearsay exception, such as the

universally accepted present sense impression

and the excited utterance exceptions, etc.

114 Idaho at 697, 760 P.2d at 36. As our prior cases hold,

the trial court’s ruling admitting such evidence will not

be reversed on appeal absent a showing that the court

abused its discretion. State v. Terry, 98 Idaho 285, 561 P.2d

1318 (1977); State v. Thomas, 94 Idaho 430, 489 P.2d 1310

(1971).

As was the case in Hester, the trial court here did not

abuse its discretion because all the requirements were

met. All of the I.R.E. 803(24) requirements were

addressed by the trial court in determining the admis-

sibility of the hearsay evidence. The trial court evaluated

the hearsay statements for relevancy, need and reliability.

Hester, 114 Idaho 688, 760 P.2d 27 (1988). The trial court’s

analysis here focused primarily on what appears to be the

main source of contention surrounding the statements,

i.e., their reliability. Besides arguing that the statements

should be inadmissible because the younger daughter

could not testify, appellant directed his challenge to an

attack on the statements’ reliability. As indicia of unre-

liability, appellant cites the alleged suggestiveness of Dr.

Jambura’s questions (by referring to “daddy”) and the

younger daughter’s alleged inability to recollect and

communicate because of her age. Appellant attempts to

App. 29

distinguish between indicia of reliability and corrobora-

tive evidence, and suggests that the latter should not be

considered in an I.R.E. 803(24) analysis. However, we

said in Hester that for a statement “to be admissible under

I.R.E. 803(24), the court must determine that (A) the

statement has circumstantial guarantees of trustworthi-

ness... ,” and that “the statement is more probative on

the point for which it is offered than any other evidence

which the proponent can procure through reasonable

efforts. . . .” The analysis required by I.R.E. 803(24) and

Hester contemplates that the trial court will look at all the

other evidence to determine whether it tends to corrobo-

rate the hearsay statement, before the trial court con-

cludes that the hearsay statement has the same

circumstantial guarantees of trustworthiness equivalent

to the other hearsay exceptions.

Appellant does not claim to have been denied ade-

quate notice and information regarding use of the youn-

ger daughter’s statements to Dr. Jambura. Nor does

appellant suggest that the statements are not offered as

evidence of the material fact that Giles sexually abused

the younger daughter. Thus, there is no question but that

the statements are relevant. As previously discussed, ante

at ___, 772 P.2d at 193, the younger daughter was judged

unable to communicate in a trial setting and was there-

fore utiable to be a witness at trial. Consequently, the

hearsay statements made to Dr. Jambura were “more

probative on the point for which [they were] offered than

any other evidence which the proponent can procure

through reasonable efforts.” I.R.E. 803(24)(B). Thus, there

is a need for the statements.

App. 30

The final step in the analysis concerns the statements’

reliability. The trial court here weighed the indicia of

unreliability cited by Giles - the alleged suggestiveness of

Dr. Jambora’s questions and the younger daughter’s

alleged inability to recollect or communicate — against

significant indicia of reliability. The trial court stated:

In this case, of course, there is physical evidence

to corroborate that sexual abuse occurred. It also

would seem to be the case that there is no

motive to make up a story of this nature in a

child of these years. We’re not talking about a

pubescent youth who may fantasize. The nature

of the statements themselves as to sexual abuse

are such that they fall outside the general

believability that a child could make them up or

would make them up. This is simply not the

type of statement, I believe, that one would

expect a child to fabricate.

We come then to the identification itself. Are

there any indicia of reliability as to identifica-

tion? From the doctor’s testimony it appears

that the injuries testified to occurred at the time

that the victim was in the custody of the Defen-

dants. The [older daughter] has testified as to

2 We note, as an additional indicia—of reliability, the

absence of a custody battle over the younger daughter. Unsub-

stantiated accusations of sexual abuse sometimes arise when

one parent seeks to terminate custodial rights of the other

parent. The child’s coached remarks may be sought for use as

an evidentary weapon by an unscrupulous parent. Testimony

given under these circumstances may be unreliable and ruled

inadmissible. Concern over such abuse is not present here,

however. The younger daughter was taken directly from the

custody of both parents and was then examined by Dr. Jam-

bura when the statements were made.

App. 31

identification of perpetrators. Those — the iden-

tification of the perpetrators in this case are

persons well known to the [younger daughter].

This is not a case in which a child is called upon

to identify a stranger or a person with whom

they would have no knowledge of their identity

or ability to recollect and recall. Those factors

are sufficient indicia of reliability to permit the

admission of the statements.

Under these circumstances, the statements have circum-

stantial guarantees of trustworthiness equivalent to the

other hearsay exceptions. Furthermore, the interests of

justice and the general purposes of evidence were best

served by admission of these statements.

Having found the statements sufficiently reliable, the

trial court stated, “It’s then up to the jury to determine if

they [the statements] are sufficiently reliable to give

weight to in their determinations. . . .” Giles was still

able, during his defense, to present a witness, Dr. Tearber,

to attack the statements’ reliability. He was also able to

argue to the jury that they should not give weight to the

statements. However, the jury concluded otherwise.

Accordingly, we conclude that the trial court did not

err when it allowed Dr. Jambura to testify concerning the

younger daughter’s statements to him. State v. Hester, 114

Idaho 688, 760 P.2d 27 (1988). The conviction of defendant

Giles is affirmed.

SHEPARD, C.J., and JOHNSON, J., concur.

JOHNSON, Justice, concurring specially.

I concur here because State v. Hester, 114 Idaho 688,

760 P.2d 27 (1988) is controlling precedent. Although I

dissented in Hester, it is now the law of this state, and I

App. 32

will follow it. I am unable to distinguish the facts of this

case from those of Hester sufficiently to avoid its applica-

tion as stare decisis.

Hester did not address the admissibility of hearsay

under the Confrontation Clause. Giles has not raised the

issue here. This issue has been raised in the companion

case to this one, State v. Wright, S.Ct. No. 17033, that has

been argued but not decided, and will be addressed

there.

HUNTLEY, Justice, concurring in the result.

While I am totally in agreement that traditional rules

of evidence must be relaxed or modified to accommodate

. admissibility of children’s testimony and out-of-court

statements in child abuse cases, I am disturbed that the

majority lacks either the imagination or the will to formu-

late rules for minimum safeguards for the defendant.*

At minimum, the sessions should be video-taped and

the examiner should not be permitted to use leading,

suggestive and “closed-ended” questions. The procedure

and the questioning herein were improper and erroneous.

I. TESTIMONY

The trial court permitted Dr. John Jambura, a pedi-

atrician who conducted a physical examination of the

younger Wright girl and asked her whether sexual abuse

3 Unfortunately, Giles has not raised the confrontation

clause requirements in this appeal and a majority of the Court

are of the position that we cannot raise it on our own opinion.

See, 102 Harvard Law Review at 156.

a eee re ee

App. 33

occurred between her and the two co-defendants, to tes-

tify concerning hearsay statements made to him by the

younger Wright daughter. This evidence was admitted

over the defendants’ objection. The younger Wright

daughter was three years old at the time of the trial and

only two-and-one-half years old at the time of the out-of-

court statements to Dr. Jambura. She did not testify at

trial. After the judge conducted a voir dire examination of

the child, he asked both counsel if they agreed that she

was incompetent to testify and both agreed she was not

competent.

Dr. Jambura examined and interviewed the younger

daughter and was allowed to testify to her responses to

four questions, his testimony being:

...-“Do you play with daddy? Does daddy play

with you? Does daddy touch you with his pee-

pee? Do you touch his pee-pee?” And again we

then established what was meant by pee-pee, it

was a generic term for genital area.

Q. Before you get into that, what was, as best

you recollect, what was her response to the

question “Do you play with daddy?”

A. Yes, we play - I remember her making a

comment about yes we play a lot and expanding

on that and talking about spending time with

daddy.

Q. And “Does daddy play with you?” Was

there any response?

A. She responded to that as well, that they

played together in a variety of circumstances

and, you know, seemed very unaffected by the

question.

Q. And then what did you say and her

response? ”

App. 34

A. When I asked her “Does daddy touch you

with his pee-pee,” she did admit to that. When |

asked, “Do you touch his pee-pee,” she did not

have any response.

She allegedly then volunteered that her daddy “.. . . does

do this with me, but he does it a lot more with my sister

than with me.”

The doctor’s testimony was clearly hearsay and since

his interview was conducted without any procedural

safeguards to permit meaningful cross-examination or

review as to the integrity of the interview procedure, it

should not have been admitted for the reasons which

follow.

II. HEARSAY

The trial court admitted these statements under Rule

803(24) I.R.E. which provides:

Rule 803. Hearsay exceptions; availability of

declarant immaterial. - The following are not

excluded by the hearsay rule, even though the

declarant is available as a witness.

(24) Other exceptions. A statement not specifi-

cally covered by any of the foregoing exceptions

but having equivalent circumstantial guarantees

of trustworthiness, if the court determines that

(A) the statement is offered as evidence of a

material fact; (B) the statement is more proba-

tive on the point for which it is offered than any

other evidence which the proponent <an procure

through reasonable efforts; and (C) the general

purposes of these rules and the interests of jus-

tice will best be served by admission of the

statement into evidence. A statement may not be

a eee

i

App. 35

admitted under this exception unless the propo-

nent of it makes known to the adverse party

sufficiently in advance of the trial or hearing to

provide the adverse party with a fair oppor-

tunity to prepare to meet it, the proponent’s

intention to offer the statement and the particu-

lars of it, including the name and address of the

declarant.

The hearsay declaration of the younger Wright girl is

inherently unreliable because of the combined effect of

her tender years and the suggestive, inadequately

reviewable interview technique applied by Dr. Jambura.*

* Because | address only the coincidence of the fact of the

hearsay declarant’s youth and the fact that the context of the

declaration was an interview by a professional, | am not

required to address the defendant's contention that this hear-

say is rendered inherently unreliable by the district court's

finding that the younger Wright girl was incompetent as a

witness at trial. The defendant contended that the hearsay

declaration of the young Wright girl is also unreliable because

of the effect of her incompetence as a witness. In reading cases

from other jurisdictions one must bear in mind that compe-

tency rules vary. In Idaho, all that is required of witnesses is

that they be capable both of receiving just impressions of the

facts respecting which they are examined and of recalling them

truthfully. Rule 601(a) I.R.E. The trial court found the younger

Wright girl to be incompetent to testify at trial. Defendant

argues this necessarily entails a finding that she is incapable of

receiving accurate impressions or of relating them. However,

the fact of incompetency to testify at trial does not mean that

spontaneous declarations made at or near the time of an inci-

dent or responses made in a properly conducted interview lack

sufficient reliability to be admitted in evidence. Cf. State v.

Paster, 324 A.2d 587 (R.1. 1987) (Declarations to a social worker,

a doctor, and a counselor which implicated the victim's father

were held inadmissible no matter what hearsay exception was

(Continued on following page)

App. 36

To assess the impact of Dr. Jambura’s interview tech-

niques, it is necessary to review some precepts of devel-

opmental psychology. Children’s cognitive abilities do

not merely increase quantitatively. They go through

recognizable stages which have been recognized as quali-

tatively different. Childhood cognition is fundamentally

different from thinking and recalling in adults. See, e.g., J.

Piaget, THE LANGUAGE AND THOUGHT OF THE

CHILD. (1926). Some authorities state that most of the

development of accurate recall skills occurs between ages

five and ten. Johnson & Foley, Differentiating Fact from

Fantasy: The Reliability of Children’s Memory 40

J.SOC.ISSUES 93, 34-36 (1984). Younger children have

memories, but may lack the ability to recall and relate

them. Id.; Loftus & Davies, Distortions in the Memory of

Children, 40 J.SOC.ISSUES, 51, 54 (1984). Leading ques-

tions, such as those asked by Dr. Jambura, are tempting

because they may serve to help a child recall. However,

they are extremely dangerous as a means leading to

admissible evidence at a criminal trial (as opposed to as

an aid in therapy for the child) because of the nature of

children’s memory. Even adults’ memory can be tainted!

(Continued from previous page)

relied upon, the court reasoned that statements made by an

incompetent witness do not become more reliable when

reported by an adult in court. Nevertheless, the court left open

the possibility that a young child’s declarations may be admis-

sible if their circumstances contain a guarantee of trustworthi-

ness such as spontaneous excited statements made close in

time to the acts complained of. 524 A.2d at 590). Because of my

analysts today, this argument is relevant only as a means of

showing an aggravation of unreliability rather than as consti-

tuting a distinct, salient source of that unreliability as a matter

of law.

ee es ne

App. 37

to the point that their actual testimony is deemed too

unreliable to be admitted without offense to due process.

Examples include the tainted identification resulting from

an unduly suggestive /ineup or the effect of hypnosis. Cf.

State v. Iwakiri, 106 Idaho 618, 682 P.2d 671 (1984) (in

determining question of admissibility of hypnotically

induced testimony, circumstances surrounding hypnotic

sessions should be examined in light of suggestive safe-

guards, and it should then be determined if, in the total-

ity of circumstances, it appears that testimony proposed

is sufficiently reliable to merit admission). The problem

of tainted memory is much more severe in young chil-

dren. See e.g., Cohen & Harnick, The Susceptibility of Child

Witnesses to Suggestion, 4 LAW & HUMAN BEHAVIOR 210

(1980).

The risk with young children is that they may be

unable to distinguish between a memory of something

which actually happened from a memory of something

they imagine happening. See e.g. Johnson & Foley, supra,

at 45. If an interview technique leads a child to imagine

an event, the child’s memory of that imagined event will

be indistinguishable from memories of events which the

child actually experienced. Loftus & Davies, supra, at

52-53. Once this tainting of memory has occurred, the

problem is irremediable. That memory is, from then on,

as real to the child as any other. This “confabulation” is

precisely the problem with hypnotically enhanced mem-

ory discussed by this Court in Iwakiri, 106 Idaho 618, 682

P.2d 671. See, Loftus & Davis, supra, at 65; Stafford, The

Child as a Witness, 37 Wash.L.Rev. 303 at 309 (1962).

In addition to leading questions, other circumstances

can lead to memory confabulation. A person the child

App. 38

perceives to have high status will more easily influence

the child to accept suggestions. It is therefore critical that

neither the interviewer nor anyone else present have

preconceptions. Goodman & Hegelson, Child Sexual

Assault: Children’s Memory & the Law, 40 U.Miami L.Rev.

181, 187-97 (1985).

The research discussed in the literature cited above is

consistent with the testimony of Dr. Thurber, an expert in

child psychology who testified for the defendant at trial.

A. Well, children who have a mental age of

five years and chronological age of five years

would have difficulty distinguishing fantasy

from reality. The work of John Piaget, the great

Swiss Psychologist, indicates that children of

five, on the average, are unable to distinguish

things that they have thought about from things

that they’ve actually encountered in a world of

reality.

Children at the age of five years mentally have

problems in retrieving memories, so memories

that are once stored have - are not consolidated,

so to speak, are placed in abstract conceptual

categories. The information may be there, it’s

just hard to retrieve it or bring it forth. And for

these reasons children of this age level are very :

prone to respond to such things as leading ques-

tions. A question that implies information that

was not actually the world of reality may

become part of memory of a child, believes that

that information fully occurred in the world of

reality.

What I’m saying is that a child who was five

years eight months chronologically, but has a

mental age 15 months or so below that, will

have even more severe problems in terms of

retrieving memories and prone to be influenced

<i e ee

App. 39

by leading questions, will have problems distin-

guishing imagery, what they think about from

the actual outside world.

Q. Do I understand you to be saying then, Dr.

Thurber, that - correct me if I'm wrong, that

were I to discuss with a child a particular action

and event of that age that the child had not, in

fact, experienced and discussed at some length,

and asked the child to repeat it, that a child may

have trouble distinguishing whether that actu-

ally happened to them or whether they’ ve heard

about it?

A. That’s correct. It’s especially the case in

events that imply action. So if you describe for a

four or five-year-old child some kind of an

action-related behavior on the part of other peo-

ple, the child has particular problems in distin-

guishing the discussion, the information

presented verbally, from an actual experience

and may confuse the two. And this comes from

a lot of recent research at New York University

in regard to children and fantasy versus reality.

Q. Now, the child that confuses that what

they’ve heard with what actually happened to

them, and they recite what they’ve heard or

report what they’ve heard, is that child lying in

the normal sense that we understand it?

A. Absolutely not. Lying in the normal sense

involves some kind of deception. To young chil-

dren about the age of five on the average what

is in their memory is true regardless of how that

information got into the memory banks.

Q. If a child were to be reciting information

that is true, even if it’s not, in fact, happened

something that they’re heard and they’ve taken

into their minds as being true, is that likely to

affect how they react in the telling of it; their

App. 40

body positions, their outward acting,

observations?

A. If a child is coming forth with what has

been stored in memory, their nonverbal behav-

iors will be very consistent with that informa-

tion. That is, they wouldn’t be able to

distinguish from what source the information

was stored.

Q. What are some of the pitfalls or dangers to

be aware of to be sure that you’re gathering

accurate data from a child?

A. My first response is they are probably too

numerous to mention. But, first and foremost,

the examiner, the evaluator, the interrogator

must be aware of personal biases and how those

biases can be reflected in an interview situation.

The primary consideration would be not to ask what

are termed closed-ended questions, questions that

can be asked — pardon me, questions that can be

answered yes or no. It has been found that an

interviewer’s pre-existing assumptions and

biases can be reflected in these questions and

can guide children into the responses that the

interviewer wants to see.

So we ask open ended questions, questions that

cannot be answered yes or no. It has also been

found that interviewers can very subtly reward

the responses they want to see, and can shape

the answers of children. One of my colleagues in

the Portland area, Bill McGeiver hes found that

simply by nodding the head and saying “um-

hum” he can shape, so to speak, gradually ay

behaviors in young children that border on the

sexually bizarre, and these are children who

have had no sexual abuse in their background.

Now these are also very young children, I might

mention, from the four to six-year-old range.

oe a ee re

App. 41

So, an interviewer must be very, very aware that

very subtle cues such as a nod or saying “um-

hum” can reward young children, in effect, and

can shape and determine the responses that the

interviewer is going to see.

Attention, as such, is also a very important fac-

tor. If an interviewer has decided that a child

has been a abused, for example, that

interviewer will likely attend when the child

responds in a way that is consistent with the

assumptions, and will not attend if the child

responds in a way that is contrary to the pre-

existing assumption.

So, I think of the important issues here, the key

ones are open ended questions, be aware of pre-

existing biases, do not respond in subtle says

that might reward the responses that you want

to see. We could go on and on. There are multi-

tudinous problems in interviewing children.

One of my colleagues who - from whom |

received training at the University of Oklahoma

Medical School has recently published a book

on the investigation and treatment of child

abuse, and is probably the nation’s authority at

this time, C. Eugene Walker, and his position is

that in initially approaching a child that pre-

sumably has been abused, that you use a very

nonstructured kind of situation. You don’t even

ask questions. Bring the child in a room with

many toys, many writing implements, papers.

Let the child just behave spontaneously and see

what comes of this kind of a situation without

attempting to prompt or influence the child by

questions. And | would strongly support that

approach because of the many possibilities of

bias in terms of our questions.

Q. That sounds like a difficult task then to be

certain not to inject anything into the interview.

App. 42

A. Very much so.

Q. How can one guard - the best techniques

for guarding against that so we can go back and

determine whether an interviewer has skewed

the information or injected their own feelings?

A. One consistent recommendation in the sexual

abuse area is that on the initial interview by a

professional, that the interview session itself be video

taped. Thus other professionals independently can

evaluate the quality of the interview techniques.

That's the only way.

Q. Is an audio tape valuable?

A. In lieu of or as a substitute for the video

tape?

Q. Of course that won’t reflect the nonvocal -

A. Correct. That would be the problem with it.

So video tape is always recommended.

Q. Let’s talk about interviewing in one other

way. Assume, if you would, please, this sce-

nario: Pediatrician interviewing two-year-old child

with the following questions: “Do you play with

daddy? Does daddy play with you? Do you ever

touch daddy's pee-pee? Does daddy ever touch his

pee-pee with you?”

How would you characterize that interview and

those questions in terms of good procedure, respons-

ible procedure that anyone should rely on?

A. All were closed-ended questions. And an infer-

ence I would make here is that the pediatrician

would be in his or her office, probably wearing

a white coat, which is more likely to evoke an

acquiescence response; that is the child will

answer in the way that the interviewer wants to

hear. (Emphasis supplied.)

= — a

App. 43

All the dangerous circumstances testified to by Dr. Thur-

ber and discussed in the literature were present in the

interview of the younger Wright girl.

The circumstances surrounding this interview dem-

onstrate dangers of unreliability which, because the inter-

view was not recorded, can never be fully assessed. Dr.

Jambura may well have had preconceptions. He knew

that the older Wright girl was alleging that she had been

sexually abused by Wright and Giles and, in fact, the

Younger Wright girl had been brought to him by the

police for sexual abuse examina tiongs a result of concern

occasioned by the older girl's allegations. He did not

video tape or even audio tape the interview. He lost or

threw away the picture he worked with in communi-

cating with the little girl about what he meant by

“Daddy’s pee-pee.” By Dr. Jambura’s own testimony, he

asked questions which were leading, (e.g., “Does daddy

touch you with his pee-pee?”). He made no accurate

record, video, audio or otherwise of the younger Wright

girls’ responses; rather, he merely testified that she

“admitted” the facts assumed in his leading question.

Since there is no transcript or tape of this conversation, it

remains unclear what Dr. Jambura is calling an “admis-

sion” that Daddy (Robert Giles) touched her with his

“pee-pee.” Whether she said “yes” or nodded agreeably

is unclear. In any event, she did not elucidate or use her

own words. By no means can one say that either the

requisite “circumstantial guarantees of trustworthiness”

or “particularized guarantees of trustworthiness” for

admissibility under Rule 803(24) I.R.E. and the Confron-

tation Clause, respectively, are present in this case. Where

courts have admitted the hearsay declarations of child

App. 44

witnesses, statements were overwhelmingly found to be

reliable only because they were excited utterances (Rule

803(2) I.R.E.) or part of the res gestae. The theory is that

there was no time for fabrication, coaching or confabula-

tion and, therefore, the guarantees of reliability shared by

those traditional exceptions to the rule against admission

of hearsay statements were present. Some examples of

such admissible hearsay include: People v. Ortega, 672 P.2d

215 (Colo. App. 1983) (excited utterance of a four year

old); Kilgore v. State, 177 Ga. App. 656, 940 S.E. 2d 640

(1986) (res gestae, declarations of three year old); State v.

Daniels, 380 N.W.2d 777 (Minn. 1985) (excited utterance

concerning being locked in a room during a fire); People v.

Orduno, 80 Cal. App 3d 738, 145 Cal. Rptr. 806 (1978)

(spontaneous, excited utterance when first in mother’s

presence, right after being in defendant’s presence); Lan-

caster v. People, 200 Colo. 448, 616 P.2d 720 (1980) (declara-

tion made one and one-half hours after the sexual assault,

as soon as declarant was to her mother’s presence);

D.L.N. v. State, 590 S.W.2d 820 (Tex. 1979); Bishop v. State,

581 P.2d 45 (Okla. Cr. 1978) (“He hurt me, he hurt me”

immediately after incident). Conversely, courts examin-

ing admissibility of incompetent witnesses’ declarations

occurring appreciably after the incident generally exclude

the declarations, as in the following cases: Keefe v. State,

50 Ariz. 293, 72 P.2d 425 (1937) (four year old made

declaration to her parents five or six days after sodomy);

State v. Jolette, 119 R.I. 614, 382 A.2d 526 (1978); Brown v.

State, 344 So.2d 641 (Fla. App. 1977) (girl under fourteen

made disclosure to her mother three days after lewd

conduct); State v. Lovely, 110 Ariz. 219, 517 P.2d 81 (1973)

(seven year old disclosed abuse to policeman two weeks

Oe ee. RN Es or

App. 45

after lewd conduct); Scott v. State, 131 Ga. App. 655, 206

S.E.2d 658 (1974). In United States v. Nick, 604 F.2d 1199

(9th Cir. 1979) the court ruled on two declarations. The

mother picked the child up from the defendant-babysit-

ter. She found her son with his pants unzipped in a

locked bedroom with the defendant. At home she noticed

“white stuff.” The child described anal intercourse to her

in child-like language while still in obvious distress. This

declaration to the mother was admissible, including his iden-

tification of the defendant. The child’s later declaration

identifying the defendant to a physician was not admissible.

III. CONFRONTATION

The sixth amendment to the United States Constitu-

tion provides in part that “in all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. Amend. VI. This

provision is applicable to the states through the four-

teenth amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct.

1065, 13 L.Ed.2d 923 (1965). ;

The purpose of the right of confrontation is to

“advance ‘the accuracy of the truth-determining process

in criminal trials’ ” by allowing only reliabie evidence to

be admitted. Tennessee v. Street, 471 U.S. 409, 105 S.Ct.

2078, 2082, 85 L.Ed.2d 425 (1985), (quoting Dutton v.

Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213

(1970)). “The right to confront and cross-examine wit-

nesses is primarily a functional right that promotes

reliability in criminal trials.” Lee v. Illinois, 476 U.S. 590,

106 S.Ct. 2056 at 2062, 90 L.Ed.2d 614 (1986).

App. 46

The hearsay rules and the Confrontation Clause have

similar policy objectives. California v. Green, 899 U.S. 149,

165, 90 S.Ct. 1930, 1983, 26 L.Ed.2d 489 (1970). However,

they are not coextensive. Some out-of-court declarations

which are admissible under hearsay exceptions may vio-

late confrontation rights. E.g., Green, supra, 393 U.S. at

153-156, 90 S.Ct. at 1932-1933; Bruton v. United States, 391

U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

The Confrontation Clause objective of reliability is

met by cross-examination, an opportunity for the jury to

observe the witness’ demeanor, and face-to-face confron-

tation between the witness and the accused. “[A] major

reason underlying the constitutional confrontation right

is to give a defendant charged with a crime an oppor-

tunity to cross-examine the witnesses against him.”

Pointer v. Texas, 390 U.S. 400 at 407-07, 85 S.Ct. 1065 at

1069-70. Concerning the opportunity for the jury to

observe demeanor, the Supreme Court mentioned the

importance of live testimony, when a witness stands “face

to face with the jury in order that they may look at him,

and judge, by his demeanor upon the stand and the

manner in which he gives his testimony, whether he is

worthy of belief.” Mattox v. United States, 156 U.S: 237,

242-43, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895). The

purpose of confrontation between an accuser and defen-

dant is that it “undoubtedly makes it more difficult to be

against someone, particularly if that person is an accused

and is present at trial.” Ohio v. Roberts, 448 U.S. 56 at 63 n.

6, 100 S.Ct. 2531 at 2537 n. 6, 66 L.Ed.2d 697.

The impact of the Confrontation Clause upon the

admissibility of hearsay is difficult to analyze. “Few tasks

in criminal evidence are more perplexing than to describe

a Pera + >

App. 47

the effect of the Confrontation Clause of the sixth amend-

ment upon the hearsay doctrine.” 4 LOUSELL &

MUELLER, FEDERAL EVIDENCE § 418 at 123 (1970).

Hearsay which falls into a well-established exception is

usually, but not always, reliable enough to satisfy con-

frontation. Other hearsay, such as the declarations of the

younger Wright girl admitted in the “catch-all” provision

of Rule 803(24) I.R.E., should be considered “presump-

tively unreliable and inadmissible for Confrontation

Clause purposes” absent a showing of “particularized

guarantees of trustworthiness.” Lee v. Illinois, 476 U.S.

530, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 614 (1986).

Only last year, the United States Supreme Court

found that the sexual assault defendant's right to face-to-

face confrontation was violated by permitting two 13-

year-old girls to testify behind a large screen that enabled

Coy to dimly perceive the witnesses but rendered them

unable to see him. Coy v. lowa, __U.S.__, 108 S.Ct. 2798,

101 L.Ed.2d 857, 43 Cr.L. 3226 (1988). I fail to see how

Wright's right to face-to-face confrontation escaped viola-

tion in this event of admission of hearsay testimony

which did not fall within any of the traditional exceptions

and which was brought into evidence through an inter-

view lacking procedural safeguards.

IV. INADMISSIBILITY

In summary, the hearsay declarations of the younger

Wright girl were unreliable because of Dr. Jambura’s

interview technique: the questioning was not accurately

recorded; the statements were not accurately recorded;

App. 48

and, blatantly leading questions were used in the inter-

rogation. Further, this interrogation was performed by

someone with a preconceived idea of what the child

should be disclosing.

I would hold that all declarations of very young

children in response to a professional’s interrogation are

per se inadmissible unless they are spontaneous, excited

utterances or 1) such declarations are elicited by a compe-

tent professional, specifically trained in interviewing

child victims and aware of the dangers of suggestibility

disclosed in psychological research; and, 2) the entire

interview is videotaped so the possibility of verbal and

non-verbal suggestion can be evaluated later;> and, 3) the

evidence establishes that the child’s memory was not

confabulated by previous improper interviews. The

reader will note that such a ruling would be similar to

portions of the standards embodied in Uniform Rules of

Evidence Rule 807.

5 Videotaping can protect defendants against erroneous

convictions perhaps even more than Can cross-examination at

trial. If improper suggestion taints a child’s memory, no

amount of cross-examination of the child will reveal the error.

This is because the child is not being deceitful. Because of the

confabulation problem, the suggested memory is as real to the

child as any other.

6 Rule 307. Child Victims or Witnesses

(a) A hearsay statement made by a minor who is under the

age of [12] years at the time of trial describing an act of sexual

conduct or physical violence performed by or with another on

or with that minor or any [other individual] [parent, sibling or

member of the familial household of the minor] is not excluded

(Continued on following page)

App. 49

In State v. Hester, 114 Idaho 688, 760 P.2d 27 (1988),

we concluded that the standards in Uniform Rule 807

(Continued from previous page)

by the hearsay rule ii, on motion of a party, the minor, or the

court and following a hearing [in camera], the court finds that

(i) there is a substantial likelihood that the minor will suffer

severe emotional or psychological harm if required to testify in

open court; (ii) the time, content and circumstances of the

statement provide sufficient circumstantial guarantees of trust-

worthiness; (iii) the statement was accurately recorded by

audio-visual means; (iv) the audio-visual record discloses the

identity and at all times includes the images and voices of all

individuals present during the interview of the minor; (b) the

statement was not made. in response to questioning calculated

to lead the minor to make a particular statement or is clearly

shown to be the minor’s statement and not the product of

improper suggestions; (vi) the individual conducting the inter-

view of the minor is available at trial for examination or cross-

examination by any party; and (vii) before the recording is

offered into evidence, all parties are afforded an opportunity to

view it and are furnished a copy of a written transcript of it.

(b) Before a statement may be admitted in evidence pur-

suant to subsection (a) in a criminal case, the court shall at the

request of the defendant, provide for further questioning of the

minor in such manner as the court may direct. If the minor

refuses to respond to further questioning or is otherwise

unavailable, the statement made pursuant to subsection (a) is

not admissible under this rule.

(c) The admission in evidence of a statement of a minor

pursuant to subsection (a) does not preclude the court from

permitting any party to call the minor as a witness if the

interest of justice so require.

(d) In any proceeding in which a minor under the age of

[12] years may be called as a witness to testify concerning an

act of sexual conduct or physical violence performed by or

with another on or with that minor or any [other individual]

(Continued on following page)

App. 50

were not applicable in the context of a child’s hearsay

statements to his mother in a bathroom setting. The situa-

tion presented in this case involves a professional

engaged in the execution of interrogation specifically

designed to elicit information to be utilized in a criminal

proceeding. Cf. United States v. Nick, 604 F.2d 1199 (9th

Cir. 1979) (discussed supra in Part Il of this opinion).

While the situation presented in Hester is more closely

akin to that involved in traditional exceptions to the

hearsay rule, such as the excited utterance or “res gestae”

(Continued from previous page)

[parent, sibling or member of the familial household of the

minor]. If the court finds that there is a substantial likelihood

that the minor will suffer severe emotional or psychological

harm if required to testify in open court, the court may, on

motion of a party, the minor or the court, order that the

testimony of the minor be taken by deposition recorded by

audio-visual means or by contemporaneous examination and

cross-examination in another place under the supervision of

the trial judge and communicated to the courtroom by closed-

circuit television. Only the judge, the attorneys for the parties,

the parties, individuals necessary to operate the equipment

and any individual the court finds would contribute to the

welfare and well-being of the minor may be present during the

minor’s testimony. If the court finds that placing the minor and

one or more of the parties in the same room during the testi-

mony of the minor would contribute to the likelihood that the

minor will suffer severe emotional or psychological harm, the

court shall order that the parties be situated so that they may

observe and hear the testimony of the minor and may consult

with their attorneys, but the court shall ensure that the minor

cannot see or hear them, except within the discretion of the

court, for purposes of identification.

(e) The requirements for admissibility of a statement under

this rule do not preclude admissibility of the statement under

any other exception to the hearsay rule.

App. 51

exceptions discussed above, the present situation lacks

such circumstantial guarantees of trustworthiness and, in

fact, is inherently fraught with the dangers of unre-

liability which the rule against admission of hearsay evi-

dence and the Confrontation Clause are designed to

highlight and obviate.

V. HARMLESS ERROR

The next question is whether admission of such evi-

dence was harmless error. Rule 62, I.C.R., provides that

“any error . . . which does not affect substantial rights

shall be disregarded.” In determining whether an error

has affected substantial rights or is harmless, the inquiry

is “whether it appears from the record that the . . . [error]

contributed to the verdict, leaving the appellate court

with a reasonable doubt that the jury would have reached

the same result had the [error] not occurred.” State v.

Palin, 106 Idaho 70, 75, 675 P.2d 49, 54 (Ct. App. 1983);

State v. Bussard, 114 Idaho 781, 760 P.2d 1197, 1202 (Ct.

App. 1988). This test parallels the harmless error test

applied in federal courts as stated in Chapman v. Califor

nia, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)

(“before a federal constitutional error can be held harm-

less, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.”) (Cited in Coy v.

Iowa, __U.S.__, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857

(1988).)

The existence of sexual abuse, the existence of the

crime charged, was evidenced by Dr. Jambura’s testi-

mony regarding his medical examination of the younger

Wright girl. Dr. Jambura’s expert opinion was that she

App. 52

had injuries which were “strongly suggestive of sexual

abuse with vaginal contact” which had occurred two to

three days prior to the examination. Because of the sever-

ity of the injuries, Dr. Jambura could not ascertain

whether chronic abuse had been occurring, yet he testi-

fied that there was scarring in the back portion of the

vagina, that there was bruising of the labium minora, that

the labium minora is very difficult to bruise, and that the

bruising on the inner surfaces of both the labium majora

and the labium minora suggested that forceful contact

was made with the inner genital area.

The identity of the perpetrators was established by

the older Wright girl’s testimony at trial. The older

Wright girl, who was six years old at the time of trial,

testified that both she and her younger sister had been

victimized by co-defendants Wright and Giles stating that

Giles had intercourse with her younger sister while “[s]he

[Laura] would be holding [the younger girl’s] leg and

holding her mouth so she wouldn’t scream.”

Applying the standard appropriate to determining

whether an error has affected substantial rights or is

harmless, it is apparent that admission of the pediatri-

cian’s declaration of the younger Wright daughter’s hear-

say statements was harmless error. I am convinced,

beyond a reasonable doubt, that the jury would have

reached the same result had the error not occurred. The

State introduced a plethora of admissible, inculpatory

evidence. In reviewing the record, I conclude that the

probative impact of the State’s case — omitting the inad-

missible hearsay testimony of Dr. Jambura - was so great

that I am convinced the conviction would have obtained

ee

App. 53

even if the inadmissible hearsay had not be admitted into

evidence.

Accordingly, in the absence of the confrontation issue

having been presented, I would affirm the conviction

while providing the guidance for future interrogations as

hereinabove set forth.

BISTLINE, Justice, dissenting.

Justice Huntley in his dissent conclusively demon-

strates that the pediatrician’s recitation of the child’s

testimony was inadmissibie hearsay and violates the right

to confront witnesses. The trial court found that the three

year old child was INCOMPETENT TO TESTIFY AT

TRIAL! How, then, could she have made “reliable” state-

ments six months earlier to Dr. Jambura when she was

only two and one-half years old?

It is necessary to go even farther than Justice Hunt-

ley. In cases like this the violation of the right to confront

the alleged victim can never be harmless. A fundamental

tenet of our criminal justice system guarantees the defen-

dant the right to confront his or her accusers in open

court through cross-examination. As the United States

Supreme Court stated in Davis v. Alaska:

The Sixth Amendment to the Constitution

guarantees the right of an accused in a criminal

prosecution ‘to be confronted with the witnesses

. against him.’ This right is secured for defen-

dants in state as well as federal criminal pro-

ceedings under Pointer v. Texas, 380 U.S. 400, 85

S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation

means more than being allowed to confront the

witness physically. ‘Our cases construing the

App. 54

[confrontation] clause hold that a primary inter-

est secured by it is the right of cross-examina-

tion.’ Douglas v. Alabama, 380 U.S. 415, 418 85

S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Professor

Wigmore stated:

‘The main and essential purpose of

confrontation is to secure for the oppo-

nent the opportunity of cross-examination.

The opponent demands confrontation,

not for the idle purpose of gazing upon

the witness, or of being gazed upon by

him, but for the purpose of cross-

examination, which cannot be had

except by the direct and personal put-

ting of questions and obtaining imme-

diate answers.’ (Emphasis in original.)

5 J. Wigmore, Evidence § 1395, p. 123

(3d ed. 1940).

Cross-examination is the principal means by

which the believability of a witness and the

truth of his testimony are tested.

415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347

(1974).

In child abuse cases there are often “no witnesses

except the victim.” Pennsylvania v. Richie, 480 U.S. 39, 60,

107 S.Ct. 989, 1003, 94 L.Ed.2d 40 (1987). Without the

opportunity to cross-examine such a witness, no trial can

be fair, and consequently, no error can be harmless.

App. 55

APPENDIX C

* * *

(p. 368) Q. Now, as to Kathy Wright - perhaps would

the Bailiff show Dr. Jambura State’s Exhibit 3.

(Brief delay.)

Q. BY MR. NAYLOR: Do you recognize that

picture?

A. I do, sir.

Q. Okay. And did you examine her on November

10th, 1986?

A. Indeed I did, sir.

Q. Do you recall where that was?

A. I recall that it was in my office.

Q. Was anyone else present?

A. There was a female attendant, I do not recall her

identity and myself and the child. As I recall, her sister

was not there during that time.

Q. And what type of exam did you perform on

Kathy?

A. I examined her genital area as well as her anal,

rectal area.

Q. And what did you find in the anal area?

A. The anal area showed no scarring or other sort of

lesions, and she had normal sphincter tone on rectal

examination.

(p. 369) Q. And what, if any, opinion were you able to

formulate from that examination?

App. 56

A. From that examination I think it’s highly

unlikely that any nonaccidental trauma had occurred to

the anal area.

Q. And turnjng then to the genital exam. What did

you find at that time?

A. She had some redness and some bruises that

were in the early stage of healing on the inner surface of

the labium majora and the labium minora, there was

some scarring in the back portion of the vagina as we’ve

mentioned - or as we’ve discussed previously. The heal-

ing area around the vagina was inflamed and swollen.

Q. Do you recall anything unusual about the hyme-

nal ring?

A. Ido not.

Q. Okay. Based on those observations, were you

able to form an opinion as to whether there was sexual

abuse in the vaginal area?

A. The examination was strongly suggestive of sex-

ual abuse with vagina contact.

Q. Why is that?

A. The bruising of both sides of the labia, the

inflammation and swelling and scarring of the fourchette,

or the area around the vagina, and the small area of

scarring (p. 370) in the back of the vagina.

Q. And what does that scarring - and when you say

scarring you meaning that healing process?

A. The healing process that we were talking about

before.

App. 57

©. And the bruises in that area, what does that

indicate? What type of force would cause that type of a

bruising in that area?

A. Well, the bruising of the inner surfaces of both

labia suggests that forceful contact was made with the

inner genital area as opposed to external trauma, such as

one might experience riding a horse, or falling off a

bicycle.

Q. So you’re saying that actual penetration of the

vaginal area caused that bruising?

A. The process of penetration may have caused that

bruising. The bruising to the labia. The penetration itself

may very well have caused the area of injury around the

entrance area or fourchette of the vagina itself.

Q. So in your experience is it common to find - or

how easy is it to break that labia minora, the inner part?

A. It is very difficult to bruise the labium minora.

That’s one — oh, that’s part of the design of the female

genital system, the labia majora act as a shock absorber

for the genital region to prevent trauma from occurring to

the external genitalia.

(p. 371) Q. Do you have an opinion as to how recent

the trauma that you observed in that examination to the

vaginal area had occurred?

A. I do.

Q. And what is that opinion?

A. It’s my opinion that trauma occurred approx-

imately two to three days prior to the examination.

App. 58

Q. Were you able to ascertain whether there was

any chronic abuse, ongoing abuse to that area?

A. In light of the acute injuries, chronic findings

may have been masked by swelling, inflammation and

bruising from the acute injuries, therefore it was very

difficult to ascertain whether chronic abuse had been

occurring.

Q. So would that be able to be ruled out?

A. No, it would not.

Q. And you indicated that you had examined Kathy

on a separate occasion. Do you have notes to that effect?

A. I have my office notes where I had examined

Kathy on — again on 3/5/87.

Q. And what did you find at that time?

A. The labia majora and minora had no bruises or

redness. The vaginal fourchette appeared to be within

normal limits, and the rectal examination was completely

normal with no scarring, lesions, et cetera in the area

around the anus, and there was a very small area of

adhesion (p. 372) or perhaps scarring between the labia

minora.

Q. And what did that indicate to you? Do you have

an opinion as to what that indicated?

A. Yes, I do have an opinion.

Q. What is that opinion?

A. It is my opinion that this indicates that substan-

tial healing had taken place of the injuries which I had

App. 59

noted on 11/10/86, and that it was highly probable that

no further trauma had occurred to the area in question.

Q. Now, did you, in your examination of Kathy on

the 10th of November, did you have occasion — did she

make any statement concerning her injuries?

MR. HAYNES: I think I'll object. This may be some-

thing that should come out in camera.

THE COURT: If you will take the jury out, please.

(Jury out.)

* *

(p. 386) FURTHER DIRECT EXAMINATION

BY MR. NAYLOR:

Q. Backtrack just briefly. What type of training or

experience have you had in the area of interviewing

children?

A. First of all, I had the usual and customary train-

ing of all individuals who go through pediatric residency

in interviewing children, eliciting information of all sorts

from them. Number two, I had specific training from

interviewing during my educational sessions with the (p.

387) child abuse team in Wichita, Kansas. Number three

of being —- talking to children practically every day for the

last eight years. And there’s — applying those principles

to my day to day contact with children both in a profes-

sional and a nonprofessional circumstance.

Q. And what are the ages that you tend to have

children - do you tend to speak with?

App. 60

A. Well, I have been known to speak with infants, |

speak with toddlers, small children, medium size chil-

dren. I have been known to even speak with adolescents,

and they occasionally speak to me.

Q. Do you find it easy to speak with children and

interview them?

A. I find it incredibly easy to talk with children and

interview them.

Q. Now, calling your attention then to your exam-

ination of Kathy Wright on November 10th. What -

would you describe any interview dialogue that you had

with Kathy at that time? Excuse me, before you get into

that, would you lay a setting of where this took place and

who else might have been present?

A. This took place in my office, in my examining

room, and, as I recall, I believe previous testimony I said

that I recall a female attendant being present, I don’t

recall her identity.

(p. 388) I started out with basically, “Hi, how are

you,” you know, “What did you have for breakfast this

morning?” Essentially a few minutes of just sort of

chitchat.

Q. Was there response from Kathy to that first -

those first questions?

A. There was. She started to carry on a very relaxed

animated conversation. I then proceeded to just gently

start asking questions about, “Well, how are things at

home,” you know, those sorts. Gently moving into the

domestic situation and then moved into four questions in

particular, as I reflected in my records, “Do you play with

App. 61

daddy? Does daddy play with you? Does daddy touch

you with his pee-pee? Do you touch his pee-pee?” And

again we then established what was meant by pee-pee, it

was a generic term for genital area.

Q. Before you get into that, what was, as best you

recollect, what was her response to the question “Do you

play with daddy?”

A. Yes, we play -— I remember her making a com-

ment about yes we play a lot and expanding on that and

talking about spending time with daddy.

Q. And “Does daddy play with you?” Was there

any response?

A. She responded to that as well, that they played

together in a variety of circumstances and, you know,

seemed (p. 389) very unaffected by the question.

Q. And then what did you say and her response?

A. When I asked her “Does daddy touch you with

his pee-pee,” she did admit to that. When I asked, “Do

you touch his pee-pee,” she did not have any response.

Q. Excuse me. Did you notice any change in her

affect or attitude in that line of questioning?

A. Yes.

Q. What did you observe?

A. She would not - oh, she did not talk any further

about that. She would not elucidate what exactly — what

kind of touching was taking place, or how it was happen-

ing. She did, however, say that daddy does do this with

me, but he does it a lot more with my sister than with me.

App. 62

Q. And how did she offer that last statement? Was

that in response to a question or was that just a volun-

teered statement?

A. That was a volunteered statement as I sat and

waited for her to respond, again after she sort of

clammed-up, and that was the next statement that she

made after just allowing some silence to occur.

MR. NAYLOR: Thank you I have nothing further.

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