Amicus Curiae Brief — Idaho v. Wright

Jn the Supreme Court of the Ani }

OCTOBER TERM, 1988

STATE OF IDAHO, PETITIONER

V.

LAURA LEE WRIGHT

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF IDAHO

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assisiant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL R. DREEBEN

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether an out-of-court statement by respondent’s child that

she had been sexually abused had the particularized guarantees

of trustworthiness needed to justify its admission under the

Confrontation Clause.

(1)

———

TABLE OF CONTENTS

Interest of the United States .......................

Statement

Summary of argument ... 2... cee

Argument:

The Idaho Supreme Court erred in holding that

the

admission of the out-of-court statements of

respondent's daughter violated the Confrontation

SE bvk< tn tcddcdnennddsadeneneeekaeue

A.

The court below erred in analyzing whether

the hearsay statements made by respondent's

daughter had particularized guarantees of

RO Ra ae ee

1. A court should determine the trust-

worthiness of a statement trom all the sur-

rounding circumstances, and should con-

sider whether cross-examination would

have practical value in testing the state-

I ss bu cncundtednkeehhs

. The statements of respondent's daughter

have particularized guarantees of trust-

NE xo nb ko bk hedaneaendedas

3. The Idaho Supreme Court applied incor-

rect. standards under the Controntation

RE sdb554006eeebh ons ceeee eeununes

The hearsay statements in this case have addi-

ty

tional guarantees of reliability because of

their resemblance to statements “made for

purposes of medical diagnosis or treatment” .

I Sood Sel dg en ee

(lil)

13

i4

18

,

IV

TABLE OF AUTHORITIES

Cases: Page

Barker v. Morris, 761 F.2d 1396 (9th Cir. 1985) 11, 12, 18

Bourjaily v. United States, 483 U.S. 171 (1987)... 7, 8,

10, 23

California v. Green, 399 U.S. 149 (1970)... 8, 10

Coy v. lowa, 108 S. Ct. 2798 (1988)... 2... 8, 13

Cruz vy. New York, 481 U.S. 186(1987)........ 7

Delaware vy. Van Arsdall, 475 U.S. 673 (1986)... 11

Dutton vy. Evans, 400 U.S. 74(1970) 0.0... 5, 8, 9,

10, 12, 18

Haggins v. Warden, 715 F.2d 1050 (6th Cir.

a si re eR ere ee ok a 24

Aentucky v. Stincer, 482 U.S. 730(1987) 0.2... y

Lee v. lilinois, 476 U.S. 530 (1986)... 0... 8, 10, 11

Mattox \. United States, 156 U.S. 237 (1895)... .. 7

Meany vy. United States, 112 F.2d $38 (2d Cir.

ES Re ait ae Cie a ee three a ears = 18-19

Morgan. Foretich, 846 F.2d 941 (4th Cir. 1988) .. 12, 23

Nelson v. Farrey, 874 F.2d 1222 (7th Cir. 1989),

cert. denied, 110 S. Ct. 835 (1990) | east ma: | .%

22, 23

Ohio \. Roberts, 448 U.S. 56 (1980) . ....§, 8 9 23

Oldsen \. People, 732 P.2d 1132 (Colo. 1986) . 22

Pennsyivania v. Ruchie, 480 U.S. 39 (1987)... |

Rock v. Arkansas, 483 U.S. 44 (1987)... 17

State \. Giles, 115 Idaho 984, 772 P.2d 191 (1989). 4, 13

Staite \. Herbert, 480 A.2d 742 (Mle. 1984) . : 22

State \. lwakiri, 106 Idaho 6138, 682 P.2d 37

PR A SE Re i ee + 17

State \. Robinson, 153 Ariz. 1Y1, 735 P.2d 8Ol

(1987) are a - ae 22

State \. Surenson, 143 Wis.2d 226, 421 N.W 2d 77

(1988) Cr ll, 12

Jennessee \. Street, 471 U.S. 409 (1985) S

Cnited States \. Deland, 22 M.J. 70(C.MLA.), cert.

demied, 479 LS. 856 (1986) | 20

V

Cases — Continued: Page

. United States v. DeNover, 811 F.2d 436 (8th Cir.

ER ere Pee ee oe a See 2!

United States v. Dorian, 803 F.2d 1439 (8th _

SUG o.0c4sdances andecu see Joss 1, 12, 22

United States v. Inadi, 475 U.S. 387 ee rn 14, 22

United States v. lron Shell, 633 F.2d 77 (8th Cir.

1980), cert. demed, 450 U.S. lOOL (1981)... 11, 19,

20, 21, 23

United States v. Lechoco, 542 §.2d 84 (D.C. Cir.

NE og NU onda > a ae 20

Unued States v. Nick, 604 F.2d 1199 (9th Cir.

CN) A oP hid A ee ee ee .

Uniued States v. Nickle, 60 F.2d 372 (8th fo

EE Weday se duddn da cea ees baka 19

United States \. Owens, 484 U.S. 554 (1988)... .. 9,17

United States v. Provost, 875 F.2d 172 (8th Cir.),

cert. demed, 110S. Ct. 170(1989) .... 00.00... 20, 21

Unued States v. Quick, 22 M.J. 722, (A-C.MLR.

1986), att'd, 26 M.J. 460 (C.M.A. 1988)... 22

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

PRR errno Fe EU er ey Pe me 21, 23

United States \. Shaw, 824 F.2d 601 (8th Cir. 1987),

cert. denied, 484 U.S. 1068 (1988)............. 21

Cnued States \. Spotted War Bonnet, 882 F.2d

1360 (8th Cir. 1989), petition for cert. pending,

Pe, SE . isa caVeneebhaa seas auann ced 22

United States \. Vazquez, 857 F.2d 857 (ist Cir.

DT Snack pavechsenndienétesbeatausumsenante 24

Constitution, statutes and rules:

U.S. Const. Amend. VI (Controntation Clause) .. passir

Se a I oy Pe a ln ae weeds eaeadd l

Idaho Code § 18-1508 (1987)... 00.0... hs wie 4

bed. R. Evid:

ge oy ee ee ee ede s

ED ois Wandkdbaveuseds er ee 24

Vi

Rules — Continued: Page

ee ie a ois ok ce eenkee ee 24

is ins ee eee eneehene 24

EE 16, 19, 20, 21

CT eer, 4, 11

PE Me ce natependacds th aneeeene 11

knee pnedabeseseseseea 22

Idaho R. Evid.:

te se eee see adbewsvaedet 20

rt... dk cache kiekonbsheseeeene 4

Miscellaneous:

Advisory committee notes, 28 U.S.C. App. (1982) . 19, 20

Graham, The Confrontation Clause, the Hearsay

Rule, and Child Sexual Abuse Prosecutions: The

State of the Relationship, 72 Minn. L. Rev.

a a ee aa aia ee i hae a ihe g 13, 22

H.R. Rep. No. 650, 93d Cong., Ist Sess. (1973)... 19

4 D. Louisell & C. Mueller, Federal Evidence (1980

Las el ei daduredseewsknbte0ee-e 19

C. McCormick, Handbook of the Law of Evidence

OE EE ee 23

Mosteller, Child Sexual Abuse and Statements for

the Purpose of Medical Diagnosis or Treatment,

er is ME, EE vc ccucevescevceéos: 22

Myers, Bays, Becker, Berliner, Corwin & Saywitz,

Expert Testimony in Child Sexual Abuse Litiga-

tion, 68 Neb. L. Rev. 1 (1969) ................ 16-17

J. Myers, Child Witness Law and Practice (1987) . . 13

Note, A Comprehensive Approach to Child Hearsay

Statements in Sex Abuse Cases, 83 Colum. L.

A Ee ae ae 24

S. Rep. No. 1277, 93d Cong., 2d Sess. (1974) ..... 19

Vil

Miscellaneous — Continued: Page

4 J. Weinstein & M. Berger, Weinstein’s Evidence

reer eee 19, 22

5 J. Wigmore, Evidence (J. Chadbourne rev.

Ss duikahnindasédsseieansaudeenaneeeen 11

6 J. Wigmore, Evidence (J. Chadbourne rev.

SD Wid caancchanccecuakaraneneseenenbaeas 19, 23

In the Supreme Court of the United States

OCTOBER TERM, 1988

No. 89-260

STATE OF IDAHO, PETITIONER

LAURA LEE WRIGHT

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF IDAHO

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The question presented ts whether an out-ot-court statement

by a child that she had been sexually abused-had the par-

ticularized guarantees of trustworthiness needed to justify its

admission under the Controntation Clause. The United States

prosecules many cases involving child abuse because of its pros-

ecutorial responsibilities with respect to the District of Colum-

bia, tederal territories, and the military. See also 18 U.S.C.

2243. As this Court has recognized, “[c}hild abuse is one of the

most difficult crimes to detect and prosecute, in large part

because there are offen no Witnesses except the victim.” Penn-

svivania ¥. Ritchie, 480 U.S. 39, 66 (1987). In many cases, the

victim is either too young or too frightened to Lestify im a court-

room setting, or Would experience traumatic effects trom doing

so. Thus, the admissibility of a child’s statement describing sex-

ual abuse is often a critical tactor in determining whether an

(1)

2

abuser is prosecuted and convicted. For that reason, the United

States has a significant interest in the resolution of the Contron-

tation Clause issue presented in this case.

STATEMENT

1. In 1982, respondent separated from her husband, Louis

Wright. They informally agreed that each parent would have

custody of their one-year-old daughter during consecutive six-

month periods. In April 1984, respondent had a second

daughter, fathered by Robert Giles, with whom respondent was

then living. On October 7, 1986, pursuant to her arrangement

with Wright, respondent took custody of her older daughter.

Pet. App. 24.

On November 8, 1986, respondent’s older daughter revealed

to Cynthia Goodman, Louis Wright’s girlfriend, that her

mother and Giles had sexually abused her and her sister. The

next day, Goodman reported that statement to the police. Three

doctors examined the older daughter that day and found

evidence of sexual abuse. One of the examining physicians was

Dr. John Jambura, a pediatrician with extensive experience in

child abuse cases. Pet. App. 24-25, 59.

On the same day, a police officer and social worker took the

younger daughter into custody. Dr. Jambura examined her the

following day. At the time, the younger daughter was two-and-

one-half years old. In the course of his examination of the

younger daughter, Dr. Jambura tound conditions “strongly sug-

gestive of sexual abuse with vagina contact.” He turther be-

lieved that the trauma he had observed in the vaginal area had

occurred “approximately two to three days prior to the examina-

tion.” Pet. App. 25, 55-58.

In the course of the examination, Dr. Jambura conversed

with the younger child. He began with “chitchat,” asking her

questions such as what she had for breakfast. The child an-

swered in a “relaxed” and “animated” tashion. Dr. Jambura

then turned to her domestic life, asking her “how are things at

home.” After moving to that topic, he asked four specific ques-

tions: “Do you play with daddy? Does daddy play with you?

1

Does daddy touch you with his pee-pee? Do you touch his pee-

pee?” Dr. Jambura established that “pee-pee” generally con-

noted the genital area. Pet. App. 60-62.

At trial, Dr. Jambura testified, on direct examination by the

State, that the child answered as follows:

Q. [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 unatfected by the question.

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

A.- When | 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.

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

or attitude in that linefot questioning?

A. Yes

Q. What did yoy observe?

A. She wouldfor—oh, she did not talk any further

about that. Shegwould not elucidate what exactly — what

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

ing. She did, how&ser, say that daddy does do this with

me, but he does 1 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 | sat and

waited tor 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.

Pet. App. 61-62; J.A. 122-123.

2. In May 1987, respondent and Giles were tried jointly

before a jury on two counts of lewd conduct with a minor under

4

16, in violation of Idaho Code § 18-1508 (1987). At the time of

trial, the younger daughter was three. Following a voir dire ex-

amination of the child, both respondent’s counsel and the State

agreed that the child was not competent to testify, as she was

unable to communicate in a trial setting. Pet. App. 3, 27, 29;

J.A. 32-39. The older child, who was six at the time, did testify.

She stated that Giles had had intercourse with her sister, while

respondent had held the younger child’s legs and covered her

mouth so she would not scream. Pet. App. 24 n.1; J.A. 61.

Dr. Jambura testified about his examinations of the two girls.

Over the objections of respondent and Giles, the trial court per-

mitted Dr. Jambura to testify about his conversation with the

younger child during the examination. Pet. App. 3-4, 25-27;

J.A. 108. The trial court found this evidence admissible under

Idaho’s residual hearsay exception, Idaho R. Evid. 803(24).'

Pet. App. 20-31; J.A. 112-115. The jury convicted respondent

and Giles on both counts, and respondent appealed.”

3. The Idaho Supreme Court reversed respondent’s convic-

tion on the count regarding the younger daughter. The court

held that the admission of the child’s hearsay statements vio-

lated respondent’s controntation rights.

The court began by stating that statements that tit within a

“well-established exception” to the hearsay rule are generally ad-

missible under the Confrontation Clause. Evidence admitted

pursuant to the “catch-all” provision of Idaho R. Evid. 803(24),

however, “should be considered ‘presumptively unreliable and

inadmissible for Confrontation Clause purposes’ absent a ‘show-

ing of particularized guarantee of trustworthiness.’ ” Pet. App.

7. Applying those principles, the court concluded that the

statements made to Dr. Jambura lacked the particularized guar-

antees needed to satisty the Controntation Clause. /d. at 8-17.

The Idaho residual exception is essentially identical to Fed. R. Evid.

803(24).

- Giles also appealed, clammuing that the admission of the younger child's

hearsay statements siolated Idaho R. Evid. 803(24). Pet. App. 27. The Idaho

Supreme Court attirmed, holding that the trial court had properly apphed that

hearsay exception. Stave +. Giles, 11S Idaho 984, 772 P.2d 191 (1989)

(reproduced at Pet. App. 23-54). Giles did not raise a Controntation Clause

clam. Pet. App. 32.

First, the court found Dr. Jambura’s “interview technique” to

be unduly suggestive because he had used “blatantly leading

questions.” Second, the court stated that Dr. Jambura had

come to the interview “with a preconceived idea of what the

child should be disclosing.” Finally, the court found the inter-

view to be “inadequately reviewable” because “the questions and

answers were not recorded on videotape fcr preservation and

perusal by the defense at or before trial.” Pet. App. 8. The court

evaluated those factors in light of the child’s “tender years,” and

theories of developmental psychology that regard the memories

of young children as especially sensitive to suggestion. /d. at

8-15. Against that background, the court found that the

daughter’s statements were “fraught with the dangers of unre-

hability which the Controntation Clause is designed to highlight

and obviate.” /d. at 17.

SUMMARY OF ARGUMENT

The Controntation Clause protects a defendant’s right to

cross-examine Witnesses against him. It does not, however, bar

the admission of every hearsay statement. The question whether

controntation is required tor a particular hearsay statement

focuses on the declarant’s unavailability and the reliability of

the out-of-court statement. When a statement falls within a

tirmly rooted hearsay exception, reliability concerns are satis-

fied without more. Even if no such exception applies, reliability

can be established if the statement is shown to have “particular-

ized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S.

56, 66 (1980).

A. A statement not falling within a firmly rooted hearsay

exception may be admitted if a court finds trom the surrounding

circumstances that the statement ts sufficiently trustworthy and

that itis unlikely that cross-examination of the declarant would

significantly undermine the statement’s reliability.

In admitting the statements of respondent’s younger daugh-

ter, the trial court in this case focused on the strong cor-

roborative evidence tor the statements, the absence of a motive

6

to lie, the implausibility that a young child could have invented

the statements, and other factors. The trial court’s analysis sup-

ports the conclusion that sufficient “particularized guarantees

of trustworthiness” were present to satisfy the Confrontation

Clause. Moreover, it is difficult to imagine what respondent

could have hoped to establish through cross-examination of her

three-year-old daughter. Even if on cross-examination respond-

ent had managed to get the girl to disown her earlier statements,

those statements, which were made to a medical professional

shortly after the events occurred, would have lost little of their

impact and would have remained reliable and trustworthy

evidence against respondent.

The Idaho Supreme Court erred by setting forth general rules

for the interviewing process that it believed had to be met before

a child’s out-of-court statements could satisfy the Contronta-

tion Clause. In addition, the court erroneously focused on the

veracity and accuracy of Dr. Jambura’s trial testimony, rather

than on the statements that were admitted through Dr. Jam-

bura’s testimony. The Confrontation Clause requires an inquiry

into the reliability of the hearsay statements themselves; that in-

quiry does not turn on the reliability of the witness who relates

those statements.

B. In determining whether a statement has the required

guarantees of reliability, courts have considered as One factor

the resemblance between the statement and any traditional hear-

say exceptions. Here, the hearsay exception for statements

“made for purposes of medical diagnosis or treatment” tur-

nishes support for admitting the staiements of respondent’s

daughter over the Confrontation Clause objection. The hearsay

rules have long recognized an exception for statements made for

purposes of medical treatment. The exception recognizes that

patients have a powerful motive to speak truthfully to their

physicians in order to secure proper medical attention. The

medical exception has supported the admission of hearsay

Statements in many federal cases involving sexual abuse ot

children.

The admission of hearsay statements made tor purposes of

medical treatment does not intringe a detendant’s rights under

the Confrontation Clause. The unavailability of the declarant

need not be shown because statements made to doctors derive

much of their reliability from the context in which they were

made. In addition, such statements possess the required indicia

of reliability because they fall within a firmly rooted hearsay ex-

ception. For that reason, the courts of appeals have ruled that

when statements are admitted under the medical exception to

the hearsay rule, the Controntation Clause is satisfied without

more.

In this case, the State offered the medical exception as one

basis for admitting the statements of respondent’s daughter and

made a showing in the trial court to establish the foundation for

applying that exception. The trial court, however, did not rely

on that ground, instead admitting the statements under the

residual hearsay exception. The hearsay question, of course, is

not before this Court. Nonetheless, the resemblance between

the context of the statements here and the context required for

the medical exception is relevant. Even if not precisely within

the medical exception, the statements in this case have some of

the same assurances of reliability that underlie the medical ex-

ception. That consideration strengthens the conclusion that par-

ticularized guarantees of trustworthiness are present.

ARGUMENT

THE IDAHO SUPREME COURT ERRED IN HOLDING

THAT THE ADMISSION OF THE OUT-OF-COURT

STATEMENTS OF RESPONDENT'S DAUGHTER

VIOLATED THE CONFRONTATION CLAUSE

Although this Court has not fully explicated the relationship

between the Confrontation Clause and the hearsay rules, a basic

approach has emerged. The Controntation Clause protects the

right of a defendant in a criminal trial to cross-examine wit-

nesses against him. Cruz v. New York, 481 U.S. 186, 189 (1987).

The Court has long recognized, however, that the Confronta-

tion Clause does not bar the admission of every hearsay state-

ment. Mattox v. United States, 156 U.S. 237 (1895); Bourjaily

\. United States, 483 U.S. 171, 182 (1987). Because the exclusion

of all hearsay would work “extreme” and “unintended” results,

Ohio v. Roberts, 448 U.S. 56, 63 (1980), this Court has sought

to reconcile the competing interests in admitting probative

evidence in criminal trials and in safeguarding the defendant’s

right to challenge the reliability of statements through cross-

examination. Bourjaily, 483 U.S. at 182. Ct. Coy v. lowa, 108

S. Ct. 2798, 2803 (1988).?

The initial step is to determine whether the declarant must be

shown to be unavailable before the hearsay statement will be ad-

mitted. United States v. Inadi, 475 U.S. 387, 394-400 (1986)

(unavailability not required for co-conspirator statements);

Roberts, 448 U.S. at 65 & n.7. The second step is whether the

out-of-court statement has sufficient “indicia of reliability” to

justify its admission without cross-examination of the declarant.

Bourjaily, 483 U.S. at 182. Because the “hearsay rules and the

Confrontation Clause are generally designed to protect similar

values,” California v. Green, 399 U.S. 149, 155 (1970), no tur-

ther inquiry into a statement’s reliability is required “when the

evidence ‘falls within a firmly rooted hearsay exception.’ ”

Bourjaily, 483 U.S. at 183; Roberts, 448 U.S. at 66. When a

firmly rooted hearsay exception does not apply, reliability con-

cerns can be satisfied if there are reasons suggesting that the

Statement is unusually likely to be trustworthy. Dutton vy.

Evans, 400 U.S. 74 (1970); Lee v. Illinois, 476 U.S. 530, 543

’ For confrontation purposes, the Court has accepted, as a point of depar-

ture, “McCormick’s definition of hearsay as ‘testimony m court, or written

evidence, of a statement made out of court, the statement being offered as an

assertion to show the truth of matters asserted therem, and thus resting tor tls

value upon the credibility of the out-of-court asserter.” E. Cleary, MeCormuck

on Evidence § 246, p. 584 (2d ed. 1972).” Lee vy. Mlimow, 476 U.S. 530, 543 0.4.

(iss See Fed. R. Evid. 801(c). Admission of out-ot-court statements for

nonhearsay purposes “raises no Controntation Clause concerns.” Tennessee v.

Street, 471 U.S. 409, 414 (1985).

The issue in this case és not related to the issue in Cov. Jowa, supra. There,

the Court held that a detendant has a right under the Controntation Clause to

“confront” face-to-face the witness giving evidence against him at trial. The

issue in this case ts the quite different Controntation Clause issue of whether

particular out-ol-court statements can be admitted without the declarant tak-

ing the stand at all.

9

(1986). Those principles comport with the recognition that

“[t}he right to cross-examination, protected by the Confronta-

tion Clause, * * * is essentially a ‘functional’ right designed to

promote reliability in the truth-finding functions of a criminal

trial.” Kentucky v. Stincer, 482 U.S. 730, 737 (1987).*

A. The Court Below Erred In Analyzing Whether The Hearsay

Statements Made by Respondent's Daughter Had Particular-

ized Guarantees Of Trustworthiness

Although this Court has made clear that a statement falling

outside a firmly rooted hearsay exception may still be admitted

it it has “particularized guarantees of trustworthiness,” Ohio v.

Roberts, 448 U.S. at 66, the Court has not articulated the fac-

tors governing the application of that principle in a particular

case. In our view, the Idaho Supreme Court erred in formulating

a standard that emphasizes rigid procedural rules in the inter-

viewing process, as opposed to considering the entire factual

mosaic surrounding the out-of-court statement and the practical

value of cross-examination.

1. A court should determine the trustworthiness of a statement

from all the surrounding circumstances, and should consider

whether cross-examination would have practical value in testing

the statement’s reliability

This Court in Dutton v. Evans rejected a Controntation

Clause challenge to the admission of an out-of-court statement

that was not within a well-settled hearsay exception. In Dution,

respondent Evans was tried for murder. A cellmate of Evans’

accomplice testified that the accomplice had said, “If it hadn't

been tor that dirty son-ot-a-bitch Alex Evans, we wouldn't be in

* The Court has also indicated that no inquiry into “indicia of reliability” is

required “when a hearsay declarant is present at trial and subject to

unrestricted cross-exanunation.” United States \. Owens, 484 U.S. 554, 560

(1988).

10

this now.” 400 U.S. at 77.° A plurality of the Court concluded

that the statement was sufficiently reliable to be admitted

against Evans, despite the absence of an opportunity for cross-

examination of the accomplice. The plurality pointed to several

factors that supported the reliability of the statement: first, it

did not expressly make an assertion of past fact; second, the in-

troduction of other evidence established that the accomplice

was in a position to know about Evans’ role in the crime; third,

it was unlikely that the accomplice’s statement was based on

faulty memory; and, fourth, the circumstances of the statement

supported its truth, in that there was no apparent motive for the

accomplice to lie, the statement was spontaneous, and it was a

declaration against penal interest. /d. at 88-89.°

More important than the particular factors described in Dut-

fon was the plurality’s rationale. The plurality observed that

“the mission of the Confrontation Clause is to advance a prac-

tical concern for the accuracy of the truth-determining process

in criminal trials by assuring that ‘the trier of fact [has] a

satistactory basis for evaluating the truth of the prior

statement.’ ” 400 U.S. at 89 (quoting California v. Green, 399

U.S. at 161). In light of that concern, the Controntation Clause

was not violated, because the possibility that Evans could have

undercut the statement’s reliability through cross-examination

was “unreal.” 400 U.S. at 89.

In Lee v. Illinois, the Court again recognized that hearsay not

covered by a firmly rooted exception may have sufficient “in-

dicia of reliability” to overcome a presumption that it is inad-

missible under the Confrontation Clause. The issue in Lee was

whether a co-defendant’s confession satisfied reliability con-

> The statement did not tall within a tirmly rooted hearsay exception, as i

was admitted under a Georgia statute that varied trom the common law by

covering cO-conspirator statements made alter the termination of the com-

spiracy. See Dutton, 400 U.S. at 80-83 (comparing tederal and state co-

, CONSpirator statement exceptions); Bourjai/y, 483 U.S. at 183 (analyzing Dui-

fon).

® Justice Harlan concurred in the result based on his view that the Contron-

tation Clause was not intended to regulate the admission of hearsay, and that

the admission of the accomplice’s statement did not violate due prowess. 400

U.S. at 93-100.

cerns because it “interlock{ed]” with the confession of the de-

fendant. Comparing the two confessions, the Court found fac-

tual discrepancies that went to the heart of the issue at trial. 476

U.S. at 546. The Court thus rejected the claim that the co-

defendant’s contession was sufficiently trustworthy to be ad-

mitted without cross-examination. The Court nevertheless reat-

tirmed the principle that hearsay may be found reliable enough

to be admitted without cross-examination when it is “marked

with such trustworthiness that ‘there is no material departure

trom the reason of the general rule.’ ” /d. at 543.

The courts of appeals have followed the lead of Dution and

Lee in examining the particular facts and circumstances that

surround hearsay statements not falling within an established

exception. As a matter of constitutional law, the courts have

recognized that “{tjhere is no mechanical test for determining

the reliability of out-of-court statements.” Barker v. Morris, 761

F.2d 1396, 1400 (9th Cir. 1985) (Kennedy, J.). In each case, the

ultimate question is whether the hearsay statement has “suffi-

cient indicia of reliability in order to afford the trier of fact a

satistactory basis for evaluating the truth of the prior

statements.” United States v. lron Shell, 633 F.2d 77, 87 (8th

Cir. 1980), cert. denied, 450 U.S. 1001 (1981). The proper in-

quiry should take into account all relevant information bearing

on a statement’s reliability. If no plausible line of cross-

eXamination could have detracted from the statement’s es: > tial

reliability under a practical view of the facts, there is no offense

to the values of confrontation in admitting ut. Compare

Delaware \. Van Arsdall, 475 U.S. 673, 680 (1986).’

~ Some courts have tound ut usetul to examine the standards developed in

applyimyg the residual exceptions to the hearsay rules. Fed. R. Evid. 80324),

804(b)( 5). See, e.g., Unwed States \. Nick, 604 F.2d 1199, 1203 (9th Cir. 1979);

Unued States ». Dorian, 803 F.2d 1439, 1444-1445 (8th Cir. 1986). Cases

analy zing the question whether a statement has “circumstantial guarantees ot

trustworthiness” equivalent to those of the specific hearsay exceptions, see,

e.g., State s. Surenson, 143 Wis.2d 226, 243-254, 421 N.W.2d 77, 83-88

(1988), and authorities explaining and applying the traditional rationales of

the hearsay exceptions, see 5 J. Wigmore, Evidence, § 1422, at 253-254 UJ.

Chadbourne res. 1974), may be of value in identifying relevant considerations

im the constuutional mquiry.

12

Without purporting to set forth an exhaustive list, we note

that courts have considered the following factors to be signifi-

cant, particularly in the child-abuse context: the corroborative

evidence for a statement, including physical evidence of abuse *

and the defendant’s opportunity to have committed it; * the

child’s motive in a particular situation to be truthful; '® the

identity of the person to whom the statement is made and the

nature of the questioning that elicited it; '' the plausibility of

fabrication in light of the child’s age,'’ specific statements, '’

and spontaneity of expression; '* the proximity in time between

the statement and the event; '° and the relationship between the

Statement and any traditional hearsay exceptions. '® There may,

of course, be other features of the case that enhance the

reliability of the statement and affect the impact on the

* See United States v. Nick, 604 F.2d at 1204 (“The child’s statement was

corroborated by physical evidence on his person and on his apparel.”).

* State v. Sorenson, 143 Wis.2d at 246, 421 N.W 2d at 85.

® State v. Sorenson, 143 Wis.2d at 244, 421 N.W 2d at 84.

'' Unued States v. Dorian, 803 F.2d at 1444 (questioners were “caretul not

to use leading Or suggestive questions during any of the interviews”).

‘= United Siates v. Dorian, 803 F.2d at 1445 ("a declarant’s young age is a

factor that may substantially lessen the degree of skepticism with which we

view [her] motives”).

‘* Unued States \. Nick, 604 F.2d at 1204 (“The childish terminology has

the ring of verity and is entirely appropriate to a child of his tender years.”);

Nelson \. Farrey, 874 F.2d 1222, 1229 (7th Cir. 1989) (“Merely playing with

anatomically correct dolls would not have given her the idea that one might be

sprayed in the face with ‘white mud’ from an erect penis; the dolls aren't thai

anatomically correct.”).

* Compare Dution v. Evans, 400 U.S. at 88-89.

Morgan \. Foretich, 846 F.2d 941, 947 (4th Cir. 1988) (statements were

made “within three hours of the child's first opportunity to speak with her

mother”).

‘* Compare Barker \. Morris, 761 F.2d at 1401-1402 (noting analogies in

statement to dying declarations and declarations against penal imterest).

13

truth-seeking function of the trial of admitting the evidence

without cross-examination.'’

2. The statements of respondent’s daughter have particularized

guarantees of trustworthiness

The trial court in this case relied on several factors in deter-

mining that Idaho’s residual exception to the hearsay rule was

satisfied. The trial court noted that there was physical evidence

of sexual abuse of the younger daughter that corroborated her

statements. The court also observed that the daughter had no

apparent motive for fabrication, and that the statements

themselves were inconsistent with fantasy on the part of such a

young girl. Further, the court closely examined the circum-

stances surrounding the most important aspect of the daughter’s

statements: the identification of her father as the abuser. The

court noted that the doctor had testified that the physical in-

juries were inflicted at a time when her father and respondent

had custody of her. The older daughter, who did testify at trial,

had identified her tather and respondent as having abused the

younger child. Moreover, the younger child was perfectly

capable of identifying her father, who was, of course, quite

familiar to her. Pet. App. 30-31. These considerations led the

trial court to believe, that the child’s statement possessed ade-

quate circumstantial guarantees of trustworthiness. '*

~ See J. Myers, Child Witness Law and Practice § $.37, at 360-372 (1987)

(listing 30 factors that courts have considered in determining whether the

testimony of a child is admissible under the residual exception). Some States

have expressed policy judgments regarding the tactors to be examined in ad-

mitting the hearsay statements of children in child abuse cases. See Graham,

The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Pro-

secutions: The State of the Relationship, 72 Minn. L. Rev. 523, 534 0.50

(1988) (collecting state statutes). As long as the statute adequately provides tor

a “case-specific finding of necessity,” Coy v. lowa, 108 S. Ct. 2798, 2805

(1988) (O'Connor, J., concurring), there is no barrier under the Confrontation

Clause to acknowledging legislative guidance im this area.

‘* In approving the admission of these statements under the hearsay rule,

the Idaho Supreme Court in Sate s. Giles, 115 Idaho at 988 n.2, 772 P.2d at

194-195 n.2, added that there was no custody battle that might have supported

speculation that a parent had instigated false accusations of sexual abuse. In

addition, the events recounted by the girl were recent enough tor her to recall

them easily, and she spontaneously described the abuse of her sister; both of

those ccumstances add to the trustworthiness of the statements.

14

ee

At the same time, an opportunity to cross-examine the three-

year-old declarant would have done little, if anything, to under-

mine the reliability of her statement to Dr. Jambura. A three-

year-old would doubtless have difficulty remembering an event

that occurred six months earlier, and at best would have a much

poorer recollection than she had shortly after the event.

Moreover, the pressure of her parents’ influence would make

any denial of the abuse or failure to recall it far less credible

than her statements to Dr. Jambura. In short, because live

testimony from the victim would be less reliable ( and probably

less impressive to a finder of fact) than the earlier, out-of-court

declarations, it is unlikely that cross-examination of

respondent’s daughter would been of much assistance to

respondent. See United States v. Inadi, 475 U.S. at 395-396 (live

testimony from co-conspirators likely to be much less convine-

ing than declarations made during the course of the conspiracy).

3. The Idaho Supreme Court applied incorrect standards under

the Confrontation Clause

The Idaho Supreme Court did not analyze the hearsay

Statements of the younger daughter under the approach we have

set forth. Rather, the court seemed to believe that special rules

had to be observed in any interview involving a child before the

child’s out-of-court statements could satisty the Confrontation

Clause. In addition, the court seemed to focus on the quality of

Dr. Jambura’s trial testimony rather than on the statements of

the younger daughter in determining whether particularized

guarantees of trustworthiness were present. That approach is

not compatible with the individualized inquiry into the reliabil-

ity of hearsay statements required by the Confrontation Clause.

a. The Idaho Supreme Court justified its holding as follows:

[T]he hearsay declarations of the younger Wright girl are

not trustworthy because of Dr. Jambura’s interview techni-

que: the questions and answers were not recorded on

videotape tor preservation and perusal by the defense at or

betore trial; and, blatantly leading questions were used in

15

the interrogation. Further, the statements lack trustwor-

thiness because this interrogation was performed by some-

one with a preconceived idea of what the child should be

disclosing.

Pet. App. 7-8. None of those reasons supports the court’s find-

ing of a constitutional violation. The Constitution does not re-

quire that doctors and young sex abuse victims conform their in-

terviews to a rigid and prescribed formula in order to withstand

Controntation Clause scrutiny.

First, it is unrealistic to suppose that each time the prospect of

sexual abuse is raised, a doctor must suspend his normal prac-

tice and locate sophisticated audio-visual equipment in order to

preserve every detail of the doctor’s interaction with the child.

In Nelson v. Farrey, 874 F.2d 1222, 1229 (7th Cir. 1989), the

court rejected a similar suggestion, pointing out that the ap-

proach was not “feasible.” When a doctor is consulted to inter-

view a victim of sex abuse, the doctor cannot know that a

criminal prosecution is likely to follow. Moreover, “a routine

practice of videotaping therapy sessions with child victims of

sexual abuse” would be seen as inappropriate in many situa-

tions. /bid. If videotaping were begun only when the prospect of

criminal charges surfaced, a defendant could later argue that the

contents were unreliable because the earlier sessions were not

preserved. And videotaped sessions arranged after the initial in-

lerview might well may lack the recency and spontaneit' hat

contribute so significantly to the reliability of the vi.tim’s

Statements.

The court’s criticism of Dr. Jambura’s questioning style was

similarly flawed. Dr. Jambura testified that he engaged the two-

year-old girl in conversation by discussing neutral subjects such

as what she had for breakfast. He then turned the conversation

to her homelite in a general way before moving to her interac-

tion with her father. His particular questions on that topic were

in the form of “Do you” do this with “daddy,” or “Does daddy”

do this “with you.” Those were perhaps the most indirect ques-

tions Dr. Jambura could have used to focus the girl’s attention

on the issue. J.A. 116-117. They were hardly, as the court below

characterized them, “blatantly leading.”

16

Moreover, the nature of the child’s responses strongly under-

cuts the court’s implication that the idea of sexual abuse was im-

planted by Dr. Jambura. The doctor testified that the girl’s de-

meanor changed markedly when he asked whether sexual

touching had occurred. Although she acknowledged that her

father had touched her with his “pee-pee,” she fell silent at the

following question whether she had touched her father, until

volunteering a few moments later that he “does do this with me,

but he does it a lot more with my sister than with me.” Pet. App.

61-62. Her change in demeanor, her dampened level of respon-

siveness, and her spontaneous disclosure that “he does it a lot

more with my sister than with me” convincingly rebut the sug-

gestion that leading questions interfered with the accuracy ot

her responses. Indeed, the contents of the girl’s last response

were not foreshadowed in any way by Dr. Jambura’s questions.

Finally, the court did not fully explain its supposition that Dr.

Jambura “may very well have had preconceptions.” Pet. App.

15. In any event, there is no basis tor speculating that the child’s

Statements Were tainted simply because Dr. Jambura was not a

tabula rasa when he began the examination. In most cases, doc-

tors Who examine a child tor sexual abuse will be fully informed

about the purpose in advance. That is especially true when a

specialist is called in. The Constitution cannot be read to create

a per se rule that a doctor must be ignorant of the reasons for a

consultation in order tor statements made to him to be

trustworthy.!?

In forming its constitutional conclusions, the court relied

heavily on psychological theories about the suggestibility ot

children and the vulnerabilty of their memories. Pet. App. 8-15.

But there is no general consensus On such theories of memory.

See Myers, Bays, Becker, Berliner, Corwin & Saywitz, Exper!

Testimony in Child Sexual A buse Litigation, 68 Neb. L. Rev. 1,

* Among other things, such an assumption would be incompatible with the

rationale undergirding the medical exception to the hearsay rule. See Fed. R.

Evid. 803(4). Moreover, the court’s suggestion that the doctor should be in the

17

100 (1989) (“modern research is rapidly exploding the old

bromide that children are always highly suggestible”). As a mat-

ter of state law, Idaho may apply its rules of evidence in light of

asserted scientific truths as it sees fit. For example, many States,

including Idaho, have relied on theories about the vulnerability

of memory to impose procedural restraints on the admissibility

of hypnotically enhanced or refreshed testimony. See Siate v.

/wakiri, 106 Idaho 618, 682 P.2d 571 (1984); cf. Rock v. Arkan-

sas, 483 U.S. 44, 58-61 (1987) (discussing theories of the impact

of hypnosis on memory and the legal response in the States).

But the Confrontation Clause does not embody the particular

views of memory and suggestibility that may appeal to a par-

ticular state court at a particular time. The court thus erred in

approaching the conversation between Dr. Jambura and the re-

spondent’s younger daughter with an air of extreme skepticism

based on unproved psychological theories.

b. The court also erred in allowing extraneous considera-

tions to influence its Confrontation Clause analysis. For exam-

ple, the court was troubled by the ambiguity of Dr. Jambura’s

description of the younger child’s “admission” that her father

had touched her with his “pee-pee.” Pet. App. 15-16. The court

stated that “[w]hether she said ‘yes’ or nodded agreeably is un-

clear.” /bid. But Dr. Jambura was a witness at trial, and if his

narration was vague or ambiguous, the particulars could have

been clarified on cross-examination of him. There is no basis for

finding the hearsay statements to which Dr. Jambura testified

lacking in trustworthiness simply because those statements could

have been expressed more precisely by the testifying witness. Cf.

United States v. Owens, 484 U.S. 554, 559-560 (1988).

dark makes the court’s procedural guidelines for interviewing internally incon-

sistent. The court suggested that all consultations should be videotaped. But a

doctor with no idea that sexual abuse was on the agenda could hardly be ex-

pected to set up video equipment On the spur of the moment.

18

Likewise, the court expressed disbelief about Dr. Jambura’s

veracity by qualifying its summary of his testimony with the

remark that the younger daughter had “allegedly” volunteered

the statement that her father had abused her but had done it

more with her sister. Pet. App. 4. Again, doubts about Dr.

Jambura’s veracity could have been thoroughly explored in

cross-examination of him. Compare Dutton v. Evans, 400 U.S.

at 89 (noting that the defendant had exercised his right to con-

front the testifying witness on the “factual question” whether he

actually heard the hearsay statement implicating the defendant);

United States vy. Owens, 108 S. Ct. at 842-843. The confronta-

tion issue is not whether the statement was made, but whether

the assertion ut contains has “indicia of reliability.” Doubts

about whether the statement was made at all cannot be used to

hold a hearsay statement constitutionally unreliable.

B. The Hearsay Statements In This Case Have Additional

Guarantees Of Reliability Because Of Their Resemblance To

Statements “Made For Purposes Of Medical Diagnosis Or

lreatment”

The conclusion that a statement has particularized guarantees

of trustworthiness may be supported by presence of cir-

cumstances that are analogous to the traditional hearsay excep-

tions. Ct. Dutton v. Evans, 400 U.S. at 89; Barker v. Morris,

761 F.2d at 1401. The statements in this case gather such addi-

tonal reliability trom their resemblance to statements satistying

the requirements of the “medical exception” to the hearsay rule.

1. The hearsay rules have long recognized an exception for

Statements made for purposes of medical treatment. Underpin-

ning the exception is the recognition that patients have a power-

ful motive to speak candidly and truthfully to their physicians in

order to secure proper medical attention. Such statements are

theretore sufficiently trustworthy to be admitted without cross-

examination. See Meany v. United States, 112 F.2d 538, 539

19

(2d Cir. 1940) (L. Hand, J.). As the Advisory Committee on the

Federal Rules of Evidence explained, “[e}ven those few jurisdic-

tions which have shied away from generally admitting

statements of present conditions have allowed them if made to a

physician for purposes of diagnosis and treatment in view of the

patient’s strong motivation to be truthful.” 28 U.S.C. App., p.

722 (1982). The Committee also observed that descriptions of

past conditions and medical history, as well as narrations of

causation that are “reasonably pertinent” to the purposes of

consultation, are supported by the same guarantees of reliabili-

ty. Lbid.

Federal Rule of Evidence 803(4) was framed in light of those

principles. It provides an exception to the hearsay rule whether

or not the declarant is available, and covers “[s]tatements made

for purposes of medical diagnosis or treatment and describing

medical history, Or past or present symptoms, pain, or sensa-

tions, or the inception or general character of the cause or exter-

nal source thereof insofar as reasonably pertinent to diagnosis

or treatment.” The federal rule incorporated the common law

exception but broadened its coverage to include statements

made tor diagnosis or treatment.?° The Committee explained

that under “[cJonventional doctrine,” statements made to a doc-

tor only to inform him sufficiently to testify as an expert were

not admitted under the medical exception. Advisory Committee

Notes, 28 U.S.C. App., p. 722 (1982). The Committee rejected

that limitation because a testifying expert would in any event be

* See H.R. Rep. No. 650, 93d Cong., Ist Sess. 14 (1973); S. Rep. No. 1277,

93d Cong., 2d Sess. 27 (1974); 4 D. Louisell & C. Mueller, Federal Evidence

$444, at 592-593 (1980 & Supp. 1989); 4 J. Weinstein & M. Berger,

Meimsiein’s Evidence © 803(4)(01}, at 803-143, 803-145 (1988). Rule 803(4)

may also have expanded upon common law principles in allowing not only

statements Of present symptoms, but also statements of past symptoms and

those relating to causation. See United States v. Iron Shell, 633 F.2d at 83, 85;

compare United States \. Nickle, 60 F.2d 372, 373-374 (8th Cir. 1932).

Although the common law in some jurisdictions did not allow statements ot

past symptoms, the rule was evolving toward the admissibility of such

statements, as supported by the same guarantees of trustworthiness that are

found im statements about present symptoms. See 6 J. Wigmore, Evidence

§$ 1722, at 118-127 (J. Chadbourne rev. 1976).

20

entitled to indicate the basis for his opinion, which would in-

clude such hearsay statements. The Committee believed that

“the distinction thus called tor was one most unlikely to be

made by juries.” /bid.?!

The medical exception applies to statements made to

psychiatrists, see United States v. Lechoco, 542 F.2d 84 (D.C.

Cir. 1976); United States v. Deland, 22 M.J. 70, 73 (C.M.A.),

cert. denied, 479 U.S. 856 (1986), and psychologists, see United

States v. Provost, 875 F.2d 172, 177 (8th Cir.), cert. denied, 110

S. Ct. 170 (1989). Moreover, the rationale for the exception

covers statements that are intended to be relayed to medical pro-

fessionals. Thus, the Advisory Committee notes explain that the

exception can apply to “[s}tatements made to hospital atten-

dants, ambulance drivers, or even members of the tamily.” 28

U.S.C. App., p. 722 (1982).

In United States vy. lron Shell, 633 F.2d 77, 83-85 (8th Cir.

1980), cert. denied, 450 U.S. 1001 (1981), the court of appeals

tormulated a two-part test for determining the admissibility of

Statements under Fed. R. Evid. 803(4). The court required a

trial court to ask, “first, is the declarant’s motive consistent with

the purpose of the rule; and second, is it reasonable for the

physician to rely on the information in the diagnosis or treat-

ment.” 633 F.2d at 84. The court justified its analysis by

reference to the two underlying rationales of the exception —the

reliability Of statements made by a patient motivated to tell the

truth, and the trustworthiness of information that a physician is

Willing to use in torming his opinion. /bid.

The medical exception as construed in /ron Shell has sup-

ported the admission of testimony in many federal cases involv-

ldaho’s analogue to Fed. R. Evid. 803(4) difters trom the tederal rule. k

excepts trom the hearsay rule “[s}tatements made tor purposes of medical

diagnosis Or treatment and describing medical history, or past or present

symptoms, Pain, Or sensations, or the source thereot insotar as reasonably

pertinent to diagnosis or treatment.” Idaho R. Evid. 803(4). Unlike the tederal

rule, Idaho does not include statements relating to “the inception or general

character of the cause or external source” in the exception.

21

ing sexual abuse of children. For example, in /ron Shell itself the

court allowed the testimony of a doctor about the statements

made by a nine-year-old victim of sexual abuse describing the

assault. The court was satisfied that the child had no motive in

speaking to the doctor other than to report accurately the events

that befell her. The court also found the description of her at-

tack relevant to the “inception or general cause” of her symp-

toms and “reasonably pertinent to diagnosis or treatment”

because it would help guide the course of the doctor’s examina-

tion. 633 F.2d at 83.

United States vy. Renville, 779 F.2d 430 (8th Cir. 1985), also

demonstrates the application of Rule 803(4) in sexual abuse

cases. There, a physician was permitted to relate the statements

by an 11-year old girl that her father had performed sexual acts

with her. In ruling that statements about the assailant’s identity

were covered by the medical exception, the court noted that

“{s}iatements by a child abuse victim to a physician during an

examination that the abuser is a member of the victim’s im-

mediate household are reasonably pertinent to treatment.” 779

F.2d at 436 (emphasis in original). The court explained that

because “child abuse involves more than physical injury, the

physician must be attentive to treating the emotional and

psychological injuries which accompany this crime.” /d. at

437.°? Other decisions have tollowed the approach ot /ron Shell

and Renville. See United States vy. DeNovyer, 811 F.2d 436, 438

(Sth Cir. 1987) (statement to a social worker); United States v.

Shaw, 824 F.2d 601, 608 (8th Cir. 1987) (statement to examining

physician, who had prescribed treatment); United States v. Pro-

vost, 875 F.2d at 177 (statements to doctors during physical

> The court thus rejected intimations in United States \. lron Shell (633

F.2d at 77) that statements identitying the assailant in sex abuse cases should

not generally be admitted under the exception. Renville explained that

although statements of “tault” are not covered by the medical excepuion when

a patient is explaining the causes of bodily injury, the same considerations are

not applicable to sexual assaults, where treatment has a psychological dimen-

sion as Well. 779 F.2d at 439.

22

and psychological treatment); United States v. Spotted War

Bonnet, 882 F.2d 1360, 1364 n.2 (8th Cir. 1989) (statement to

clinical psychologist), petition for cert. pending, No. 89-6289.??

2. The admission of hearsay statements made for purposes

of medical diagnosis or treatment does not violate a defendant’s

confrontation rights. Under this Court’s analysis in United

States v. Inadi, supra, such statements do not require a showing

of the unavailability of the declarant. As in /nadi, the context of

Statements that are made to doctors in aid of diagnosis or treat-

ment provides additional guarantees of trustworthiness that are

not duplicated by in-court testimony.?* Such statements also

satisty the “reliability” inquiry under the Controntation Clause

because they fall within a “firmly rooted” hearsay exception.

> The medical exception has also plaved a role in many military prosecu-

tions under Mil. R. Evid. 803(4), the counterpart to the tederal rule. See 4 J.

Weinstein & M. Berger, supra, § 803(4)[03], at 363-364 (Supp. 1989) (collect-

ing cases). Many States have also admitted hearsay statements of the victim

under the medical exception in sexual abuse prosecutions. See, e.g., Siale v.

Robinson, 153 Ariz. 191, 199-200, 735 P.2d 801, 809-810 (1987) (victim's

Statements to psychologist, including identity of defendant, admissible); Srare

\. Hebert, 480 A.2d 742, 748-749 (Me. 1984). Compare Oldsen \. People, 732

P.2d 1132, 1134-1136 (Colo. 1986) (declining to admit child’s statement of sex-

ual assault to social worker, psychologist, and physician, because child was

not capable of appreciating need to turnish accurate information; but admut-

ling same statements under residual hearsay exception). See generally

Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical

Diagnosis or Treatment, 67 N.C.L. Rev. 257 (1989); Graham, The Confronta-

tion Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The

State of the Relationship, 72 Minn. L. Rev. 523 (1988).

** Compare /nadi, 475 U.S. at 395-396 (co-conspirator statements derive

much of their significance trom context in which they are made). See United

States \. Quick, 22 M.J. 722, 725-726 (A.C.M.R. 1986) (applying /nadi to ses-

ual abuse case), alf’d on other grounds, 26 M.J. 460 (C.M_A. 1988). But see

Nelson \. Farrey, 874 F.2d 1222, 1231-1233 (7th Cir. 1989) (Flaum, J., concur-

ring) (arguing that /nadi’s analysis does not justity dispensing with a showing

of unavailability tor declarant of medical-exception statements). In any event,

as in this case, the declarant will often be “unavailable” in a child sex-abuse

prosecution because of a practical inability to testify meaningtully in court.

See, e.g., United States \. Dorian, 803 F.2d at 1446-1447.

23

Thus, in many sexual abuse cases, statements of the child to a

treating physician may be admitted over a Confrontation Clause

objection simply upon satisfying the medical exception to the

hearsay rule.

The medical exception is as firmly rooted as other hearsay ex-

ceptions that this Court has addressed. Compare Bourjaily, 483

U.S. at 183 (co-conspirator statements); Roberts, 448 U.S. at 66

& n.8 (referring to dying declarations, cross-examined prior

testimony, and business and public records exceptions). There is

a long tradition of admitting reasonably pertinent hearsay

Statements made to treating physicians. See 6 J. Wigmore,

Evidence §§ 1718-1722 (J. Chadbourne rev. 1976); C. McCor-

mick, Handbook of the Law of Evidence § 292, at 690-692 (E.

Cleary 2d ed. 1972).

To be sure, more complex Controntation Clause issues may

be raised as to statements made to a physician solely to enable

him to give testimony.?> Such statements are admissible under

the Federal Rules of Evidence and the rules of many States, but

were not generally admissible at common law. Whatever the

correct Controntation Clause analysis of such statements, those

statements are not the kind presented here, or in the typical

child sex-abuse case. An abused child is usually brought to a

doctor or other professional principally, if not exclusively, for

therapy and evaluation. Statements made in that context fully

satisty the requirements of the medical exception as formulated

at common law.?* Even when the doctor intends both to render

treatment and to preserve or gather evidence in anticipation of

trial, there is no reason to doubt the applicability of the excep-

tion. See United States v. tron Shell, 633 F.2d at 86. The

doctor's interest in eliciting accurate information and in im-

See Vorean \. Foretich, 846 F.2d 941, 952 (4th Cir. 1988) (Powell, J.,

concurring in part and dissenting in part); Nelson v. Farrev, 874 F.2d 1222,

1233-1234 (7th Cir, 1989) (Flaum, J., concurring)

* For example, Justice Powell, sitting with the Fourth Circun, has observed

that the statements admitted by the Eighth Circun in United States v. tron

Sheil and United States \. Renville satistied the “traditional common law test.”

Morgan \. Foretich, 846 F.2d at 952 (Powell, J., concurrimg m part and

dissenting m part)

24

pressing the importance of candor upon the young patient ap

plies with tull force. The doctor’s awareness that there may be

other uses tor the same information does not detract trom the

rehabilnty of the statements made.

3. In this case, although the State urged the application ot

the medical exception to the statements of respondent's younger

daughter, as well as several other exceptions, the trial court did

not admit the evidence under the medical exception to the hear

sav rule. Instead, the court reed on Idaho's residual hearsay ex

ception to admit the statement. See J.A. 25-26, 108-115

The hearsay question, of course, ts not betore this Court

Nonetheless, the resemblance between the context of the

statements here and the context required tor the medical excep

tion is relevant. Even if not precisely within the medical excep

on, the statements m this case have some of the same

assurances Of rehhability that underlie the medical exception

That similarity of context strengthens the conclusion that the

record establishes the particularized guarantees of trustworths-

ness needed to admu the statements over a Controntation

Clause objection

(ther lirmly rooted Neaisay evceplions Ma’ diso support the admission

ris of sexual abuse Dy children. For example, the “excuied ullerance

exweeplion, Fed. R. Evid. 801(d2), has been wioked m several cases. See

vie, 4 Con PENENSI VE ipprod hiv Child Hearsay Statements in Sex APuse

C uses, 83 Colum. L. Rev. 1745, 1753-1755 (1983). Both in sexual assault cases

and in ome yPpes Of Proseculions, COUrIs Nave found this exception to De

rT ied” [Of purposes Of satistving Controniation Clause objections

See Cnuted States +. bazquez, 857 F.2d 857, 864-865 (isi Cir. 1988); Alaeesis

Marden, “15 F.2d 1080, 1085-1058 (6th Cir. 1983) (reports of tour-year-old

cum of sexual assault to nurses and police Olliwers), cent. demed, 464 LS

107} (1984): l nited States \ Nick, 604 F.2d at 1202 | 204 (three Veur-old Vi

slaiement 10 Nis Mother identilying the detendant and describing the

assault). Other exceptions mas apply as well, such as the exceptions tor

pjless x umpression,” Fed. R. Evid. 80M 1), of “[t}hen existing mental,

r physical condmion,” Fed. R. Evid. 8033)

25

CONCLUSION

Ihe judement of the Supreme Court of Idaho should be re-

versed

Respectfully submitted

KENNETH W. STARR

Solicitor General

EowarRD S.G. DENNIS. JR

Assistant Attorney General

Wittas’ C. BRYSON

Deputy Solicitor General

Mic Hatt R. DREEBEN

Assistant to the Solicitor General

\tarcu 1990