Amicus Curiae Brief — Idaho v. Wright

=

No. 89-260 Supreme ¢

| MAR 39

IN THE

Supreme Court of the United States a

OCTOBER TERM, 1989

>

STATE OF IDAHO,

Petitioner,

—_—V—

LAURA LEE WRIGHT,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF IDAHO

BRIEF AMICUS CURIAE OF THE

AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF RESPONDENT

Margaret A. Berger

(Counsel of Record)

Brooklyn Law School

250 Joralemon Street

Brooklyn, New York 11201

(718) 780-794]

Steven R. Shapiro

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

BEST AVAILABLE COPY

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I.

TABLE OF CONTENTS

A CHILD’S HEARSAY STATEMENT

THAT IS ADMISSIBLE PURSUANT TO

A STATE’S RESIDUAL HEARSAY

EXCEPTION IS INADMISSIBLE FOR

PURPOSES OF THE CONFRONTATION

CLAUSE IF THE CHILD’S FAILURE TO

TESTIFY PREVENTS THE JURY FROM

ACCURATELY ASSESSING THE

EVIDENCE

A. The Hearsay Statements At Issue Do

Not Fall Within A Firmly Rooted

Exception

A Judicial Finding Of Circumstantial

Guarantees Of Trustworthiness For

Evidentiary Purposes Does Not Fore-

close Constitutional Scrutiny

. The Jury In This Case Could Not Assess

Accurately The Child’s Out-of-Court

Statement

1]. The Nature Of The Declarant

2. The Circumstances Of The Interview. .

3. The Nature Of The Statement

4. The Nature Of The Witness

Page

D. Corroborating Evidence Does Not

Eliminate A_ Violation Of The

Confrontation Clause. .............

Il. THE CONFRONTATION CLAUSE

SHOULD, AT A MINIMUM, REQUIRE

THE EXCLUSION OF A _ CHILD'S

STATEMENT ELICITED BY PROSECU-

TORIAL AUTHORITIES AT AN

UNRECORDED INTERVIEW .........

A. The Confrontation Clause Requires

Special Safeguards When An

Adversarial Trial Does Not Enable A

Defendant To Meaningfully Challenge

The Prosecution’s Evidence .........

B. Prosecutorial Interviews With Children

In Child Sex Abuse Prosecutions Must

Be Recorded In Order To Protect

Defendant Against Unreliable

Statements That Cannot Be Challenged

Meaningfully At Trial .............

C. The Idaho Supreme Court Properly

Found That The Failure To Record

Deprived Defendant Of Her Right To

EN nes so cess éseveces

CONCLUSION

ii

19

20

20

TABLE OF AUTHORITIES

Page

Cases

Barber v. Page, >

390 U.S. 719 (1968) 2.0... ccc eee be

Bourjaily v. United States, .

483 U.S. 171 (1987) ow wc ccc cc ccc c ccc c cece ee a 4

California v. Green,

399 U.S. 149 (1970) 2... ee eee 2, 3, 6, 7, 16

Coy v. lowa, p

108 S.Ct. 2798 (1988) 2.2... ce ees ]

Delaware v. Fensterer, ;

474 US. 18 (19BS) 2. cece cece cere cvvees 7, 1

Delaware v. Van Arsdall, ”

47S US. G73 (19BB) ow ccc ccc ccc rccenes 19,2

Douglas v. Alabama, 7

390 U.S. 415 (1965) 2... cc Oe

Dutton v. Evans, _

400 U.S. 74 (1970) 2... cee ee

Faretta v. California, .

422 U.S. 806 (1975) 2... cc cc eee eee

Gilbert v. California,

388 U.S. 263 (1967) 2.0... . 0c cee eee eee 21, 22, 25

Kentucky v. Stincer, ;

482 U.S. T30 (19B7) 0 ww ccc eww reece enes 7, 8,

Kirby v. Illinois, -

406 U.S. 682 (1972)... ccc ccc ew eee eee ee Oe

Lee v. Illinois,

476 U.S. 530 (1986) .........000ee eee XS5,7, 27

iil

Page

Manson v. Brathwaite,

ON ida. bad Clits gabe tee 25

Maryland v. Craig,

es we dc eenekaen ceueekens 27

Massiah v. United States,

ss nd ws a bt'eeee 6 hake eeke 20

Mattox v. United States,

PET. ‘bis cd cease baceeseates 4,5,7

Ohio v. Roberts,

Ee

Pennsylvania v. Ritchie,

EE og nk cc cenancbnaueseeasenes 25

Pointer v. Texas,

I ee 6, 23

Rock v. Arkansas,

ee ee ee cs ceva eecees oon bun 26, 27

State in Interest of R.W. v. J.L.W.,

491 So.2d 652 (La.App.2d Cir. 1986) ......... 14, 15

State v. Giles,

Pe rs. cet eb eben bt ebueebs 4,27

Stovall v. Denno,

ee Es 6 veces he eweeeneeeens Te

Strickland v. Washington,

ee oe dk cc eeuvs enone bee 6

Tennessee v. Street,

Ne nn 8 ee on eee hae waes 7

United States v. Affleck,

wot 8. |) ls | ee ee 19

iv

Page

United States v. Ash,

GPU PEED cece cccceccccceces 21, 23, 25

United States v. Azure,

801 F.2d 336 (8th Cir. 1986) ..........02eeeees 18

United States v. Inadi,

CTT ccccaccsescenssseveces 2, 16

United States v. Owens,

PEE Genoese vcenscceseccs 7, 10, 23

United States v. Rollins,

fe | fy lk | PPT eeerereee 18

United States v. Scop,

846 F.2d 135 (2d Cir. 1988) .... . 2... cece eee: 18

United States v. Wade,

jf GO eee 21, 22, 23, 25

Statutes and Regulations

Federal Rules of Evidence 801(d)(1)(C) .......... 22

Idaho Rules of Evidence 601 .................. 10

Idaho Rules of Evidence 603 .................. )

Idaho Rules of Evidence 703 .................. 18

Idaho Rules of Evidence 801(d)(1)(C) ........... 22

Idaho Rules of Evidence 803(4) ................ 4

Idaho Rules of Evidence 803(24) .............. 4,6

Uniform Rules of Evidence 807 ................ 23

Legislative History

Senate Committee on the Judiciary,

Report on Federal Rules of Evidence,

93d Cong., 2d Sess., Report No. 93-1277 (1974) .... 5

Vv

Other Authorities

Bulkley, "The Impact of New Child Witness

Research on Sexual Abuse Prosecutions,"

in Perspectives on Children’s Testimony

(S. Ceci, D. Ross, M. Toglia eds. 1989) ....... 12, 24

Ceci, Ross & Toglia, "Age Differences in

Suggestibility: Narrowing the Uncertainties,”

in Children’s Eyewitness Memory

(S. Ceci, M. Togia & D. Ross eds. 1987) ......... 1]

Christiansen, "The Testimony of Child Witnesses:

Fact, Fantasy, and The Influence

of Pretrial Interviews,"

62 Wash.L.Rev. 705 (1987) .............00008- 12

Cohen & Hernick, "The Susceptibility of

Child Witnesses to Suggestion:

An Empirical Study,"

4 Law & Hum. Behav. 201 (1980) .............. 1]

Duggan, Aubrey, Doherty, Isquith,

Levine and Scheiner, "The Credibility

of Children as Witnesses in a Simulated

Child Sex Abuse Trial,"

in Perspectives on Children’s Testimony

(S. Ceci, D. Ross, M. Toglia eds. 1989) .......... 24

Eberle, The Politics of Child Abuse (1986) ........ 24

Goodman and Clarke-Stewart, "Suggestibility

in Children’s Testimony: Implications

for Child Sexual Abuse Investigations,"

in Children’s Suggestability (with Special

Reference to a Child Witness)

Ge CO Gs PEED cc ceccccccscvcccecs 11, 12

vi

0 te ent en

Goodman, Rudy, Bottoms & Aman,

"Children’s Concerns and Memory:

Issues of Ecological Validity

in Children’s Testimony,"

in What Young Children

Remember and Know

(R.Fivush & J.Hudson eds. in press) ...... 12, 13, 17

Hechler, The Battle and The Backlash (1988) ...... 16

Hutton, "Child Sexual Abuse Cases:

Establishing the Balance Within

the Adversary System,"

20 J. of L. Reform 491 (1987) ...........25445- 18

Johnson & Foley, "Differentiating

Fact From Fantasy: The Reliability

of Children’s Memory,"

4B 5. Gee. TAAUNGS BS CISDS) 2c ccc ccc ccc ccccccees 11

Jonakait, “Restoring the Confrontation Clause

to the Sixth Amendment,"

fle FER hf). | rere ree 6

Matthews, /n California a Question of Abuse:

An Excess of Child Molestation Cases

Brings Kern County’s Investigative Methods

Under Fire, Wash. Post, May 31, 1989 ............ 24

“"McMartin’s Preschool Lessons,"

FO ABA BP EUPUED cecccvescccsecceccesees 25

OEY. Feeee, SM, TF, TEE cc ccc cccccccccsccces 24

IY. Fines, Fam. 1D, TOFD oc ccc ccc ccccccccsces 24

Lh & £ & | SPPTTrrrrirrrire 15

vii

Penrod, Bull, and Lengnick,

"Children as Observers and Witnesses:

The Empirical Data,"

en eRe e eee ee ceese bs 1]

Raskin & Yuille, "Problems in

Evaluating Interviews of Children

in Sexual Abuse Cases,"

in Perspectives on Children’s Testimony

(S.Ceci, D.Ross and M.Toglia eds. 1989) ......... 24

Saywitz, "Testimony: Age-Related Patterns

of Memory Errors,"

in Children’s Eyewitness Memory

(S. Ceci, M. Togia & D. Ross eds. 1987) ......... 12

Shipp, Prosecutor in Sex Case to Stay in Office,

Pe SE SOME ca vcbeteecdcvcesceess 24

Stafford, "The Child as a Witness,"

PP CD bec edctesvocceves 1]

Tribe, "Triangulating Hearsay,"

SF SE, SPP MONTE ccc cccccccesccesceses 6

vill

INTEREST OF AMICUS’

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with over

275,000 members dedicated to the principles of liberty

and equality embodied in the Constitution. In support

of those principles, the ACLU has appeared before this

Court on numerous occasions, both as direct counsel and

as amicus curiae.

The epidemic in reported cases of child abuse

represents a national tragedy that creates strong pressure

to depart from the traditional safeguards afforded

criminal defendants. This case reflects those pressures

and therefore raises issues of organizational concern to

the ACLU.

SUMMARY OF ARGUMENT

This case presents the question whether a state’s

Strong interest in protecting its young children from

sexual abuse justifies dispensing with a defendant’s Sixth

Amendment right to confrontation. Past opinions in

which the Court has balanced the need of the prosecu-

tion and the risk to the accused establish that a state’s

desire to obtain convictions more easily does not out-

weigh the defendant’s right to be safeguarded against

unreliable evidence. When the rationale of these deci-

sions is applied to the facts of this case, the opinion of

the Idaho Supreme Court reversing defendant’s convic-

tion on constitutional grounds must be affirmed.

Statements made by a two and one-half year o!d

child to a physician selected by the police could not be

used against the defendant without violating her Sixth

Amendment rights to a fair trial. They were elicited by

an agent of the prosecution after the prosecution had

‘Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3.

1

focused on the defendant, and after the child-declarant

had been in the custody of the police overnight. The

Confrontation Clause protects against prosecution by ex

parte evidence. Any suggestion to the contrary raises the

specter of Sir Walter Raleigh and has implications

beyond the child abuse context. California v. Green, 399

U.S. 149, 155 (1970).

Here, defendant was denied her right to confronta-

tion because admission of the statement in the absence

of the child affected the jury’s ability to assess the

evidence accurately. Although this Court has found that

some "firmly rooted" hearsay exceptions automatically

satisfy the Confrontation Clause, it has never held that

the overlap between the hearsay rule and the require-

ments of the Confrontation Clause is complete. United

States v. Inadi, 475 U.S. 387, 393, n.S (1986). The

hearsay statement used against the defendant in this case

is not admissible pursuant to any “firmly rooted" excep-

tion, nor indeed pursuant to any class of hearsay excep-

tion recognized by the legislature or judiciary of the state

of Idaho. Under these circumstances, the Sixth Amend-

ment requires further judicial scrutiny of the child’s

Statement to determine whether the statement may be

used if the child is not produced at trial. Given the age

of the child, the circumstances of the interview, the

nature of the statement, and the role of the physician,

the hearsay statement must be excluded as unreliable.

To safeguard against the admission of unreliable

hearsay in this and similar cases, amicus proposes a

prophylactic rule barring trial testimony based on

unrecorded interviews with young children by the

prosecution or its agents. Otherwise, defendants — will

not be meaningfully able to challenge the child’s

Statements at trial as required by the Confrontation

Clause. Allowing statements obtained in this manner to

be admitted creates an intolerable risk of an erroneous

conviction. Furthermore, licensing the use of un-

recorded statements would unduly encourage the police

to succumb to public pressures to prosecute alleged child

sex offenders without taking effective measures to ensure

the reliability of the statements obtained.

ARGUMENT

I. A CHILD’S HEARSAY STATEMENT THAT IS

ADMISSIBLE PURSUANT TO A STATE’S RESID-

UAL HEARSAY EXCEPTION IS INADMISSIBLE

FOR PURPOSES OF THE CONFRONTATION

CLAUSE IF THE CHILD’S FAILURE TO TESTIFY

PREVENTS THE JURY FROM ACCURATELY AS-

SESSING THE EVIDENCE

The Confrontation Clause of the Sixth Amendment

provides that: “In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the wit-

nesses against him." This Court has "long rejected as

unintended and too extreme" a literal interpretation of

the Clause that would "abrogate virtually every hearsay

exception" by requiring the exclusion of any statement

not made in court and not subject to cross-examination.

Ohio v. Roberts, 448 U.S. 56, 63 (1980). On the other

hand, this Court has consistently rejected the notion that

all statements that satisfy a hearsay exception simultane-

ously satisfy the dictates of the Confrontation Clause.

See Dutton v. Evans, 400 U.S. 74, 86 (1970); California v.

Green, 399 U.S. at 155-56. See also Lee v. Illinois, 476

U.S. 530 (1986). A contrary approach would allow

legislators and rule-makers immunity from constitutional

scrutiny whenever they create a new hearsay exception.

This Court has acknowledged that certain categories

of hearsay exceptions are so “firmly rooted” that a court

need not subject evidence admitted pursuant to such an

exception to further scrutiny to determine if it passes

constitutional muster. Bourjaily v. United States, 483 U.S.

171, 182-84 (1987); Ohio v. Roberts, 448 U.S. 56 (1980).

The state’s need and the danger that unreliable evidence

will be used against the accused have already been

balanced in the gradual evolution of the exception. See

Mattox v. United States, 156 U.S. 237, 243-44 ( 1895);

Bourjaily, 483 U.S. at 183. That is not the case, however,

with the residual hearsay exception relied on by peti-

tioner here.

A. The Hearsay Statements At Issue Do Not Fall

Within A Firmly Rooted Exception

The hearsay statements at issue in this case were

made by a two and a half year old child after she had

been in police custody overnight. State v. Giles, P.2d

191, 192 (Idaho 1989). They were elicited by a physi-

cian, chosen by the police, who knew that the police

suspected that the child had been sexually abused by her

father. Briet for Petitioner at 5. The physician did not

make any verbatim record of the interview and discarded

the drawing he used in questioning the child. State v.

Wright, 772 P.2d 1224, 1230 {Idaho 1989). He acted as

an investigator for the police by making notes for later

use in the criminal process. The specific questions he

asked focused exclusively on the child’s activities with

her father. J.A.122-23. See also J.A.117, 124.

The statements elicited through this process were

not admitted pursuant to any of the common law hearsay

exceptions that are codified in Idaho’s Rules of

Evidence.’ Rather, they were admitted pursuant to the

so-called residual exception in Rule 803(24), a rule

identical to the similarly numbered provision in the

*The prosecution originally sought to justify admission pursuant to

Idaho Rule 803(4), Statements for Purposes of Medical Diagnosis or

Treatment, but the trial judge relied exclusively on Idaho Rule

803(24) (J.A.112-15). The extension of the medical exception to

statements of identity is an innovation in Child sex abuse cases and is

not a “firmly rooted" aspect of the ex¢eption. Consequently, the

“resemblance” noted in the Brief of the United States as Amicus

Curae at 18 is not relevant to constitutional analysis.

4

Federal Rules of Evidence. Unlike the firmly rooted

hearsay exceptions with which the courts have had

centuries of experience,’ a codified residual hearsay

exception has existed for less than twenty years in any

jurisdiction.” Furthermore, the residual exceptions were

designed to accommodate ad hoc instances of reliable

Statements; they were not intended as a vehicle for the

judicial creation of additional categories of hearsay

exceptions.”

Since the child’s statement in this case was offered

pursuant to a non-firmly rooted exception, it is "pre-

sumptively unreliable and inadmissible for Confrontation

Clause purposes." Lee, 476 U.S. at 543. Accordingly, it

"must be excluded, at least absent a showing of particu-

larized guarantees of trustworthiness." Ohio v. Roberts,

448 US. at 66.

B. A Judicial Finding Of Circumstantial Guarantees

Of Trustworthiness For Evidentiary Purposes Does

Not Foreclose Constitutional Scrutiny

The state’s argument that a finding of trustworthi-

ness for purposes of the residual hearsay exception dis-

poses of the defendant’s constitutional rights assumes an

"See e.g., Mattox, 156 U.S. at 243 (dying declarations have "from time

immemorial . . . been treated as competent testimony"); Bourjaily, 483

U.S. at 183 (“the co-conspirator exception to the hearsay rule is

steeped in our jurisprudence;” “[t]he admissibility of co-conspirators’

statements was first established in this Court over a century and a half

ago"); Lee, 476 U.S. at 551-52 (Blackmun, J., dissenting)("statements

squarely within established hearsay exceptions possess ‘the imprimatur

of judicial and legislative experience’ . . . and that fact must weigh

heavily in our assessment of their reliability for constitutional pur-

poses”)(citation omitted).

“The Idaho Rules of Evidence became effective in 1985.

*Senate Committee on the Judiciary, Report on Federal Rules of Evi-

dence, 93d Cong. 2d Sess. Report No. 93-1277, p.20 (1974)("Such

major revisions are best accomplished by legislative action”).

5

unwarranted congruence between the operation of the

hearsay rule and the Confrontation Clause. California v.

Green, 399 U.S. at 155 ("Our decisions have never estab-

lished such a congruence"). In making a Rule 803(24)

determination of trustworthiness, whether in a civil case

or in a criminal case, and regardless of whether the

evidence is being offered for or against the accused, the

court must answer only one question: Does the prof-

fered statement possess characteristics of trustworthiness

equivalent to the trustworthiness that led to the creation

of the class exceptions in the hearsay rules?°

The Confrontation Clause asks a different question:

Will the defendant be deprived of the fair trial guaran-

teed by the Sixth Amendment’ if hearsay evidence is

admitted against him and the declarant does not testify?

A trial court’s finding that the statement in question

possesses attributes considered significant in the develop-

ment of traditional exceptions to the hearsay rule does

not dispose of this inquiry. In order to determine if the

child’s absence is excused, the court must consider how

“See Tribe, “Triangulating Hearsay,” 87 Harv.L.Rev. 957 (1974) (exp-

laining that exceptions are created when the dangers of either ambigu-

ity Or insincerity or erroneous memory or faulty perceptions are mini-

mized, but that the exceptions do not require absence of all of these

dangers); Jonakait, "[.estoring the Confrontation Clause to the Sixth

Amendment,” 35 UCLA L.Rev. 557, 607 (1988)("While . . . hearsay

[admitted pursuant to an exception] may be more reliable than hear-

say generally, the lessened chance of mistake does not guarantee that

the accused’s cross-examination of the declarant would not have

helped his case”).

In Pointer v. Texas, 380 U.S. 400, 405 (1965), this Court explained its

holding that the Sith Amendment right to confrontation is obligatory

on the states through the Fourteenth Amendment: "There are few

subjects, perhaps, upon which this Court and other courts have been

more nearly unanimous than in their expressions of belief that the

right of confrontation and cross-examination is an essential and funda-

mental requirement for the kind of fair trial which is this country’s

constitutional goal.” See also Strickland v. Washington, 466 U.S. 668,

685 (1984), and Faretta v. California, 422 U.S. 806, 818 (1975).

6

the Confrontation Clause functions.

This Court has consistently recognized accurate

factfinding as the central concern of the Confrontation

Clause. Tennessee v. Street, 471 U.S. 409, 415 (1985)

("the Confrontation Clause’s very mission [is] to advance

‘the accuracy of the truth-determining process in criminal

trials”), quoting Dutton v. Evans, 400 U.S. at 89. The

Confrontation Clause aids the jury in accurate fact-

finding by ensuring "the traditional protections of the

oath, cross-examination, and opportunity for the jury to

observe the witness’s demeanor." United States v. Owens,

108 S.Ct. 838, 843 (1988). "The right to confront and to

cross-examine witnesses is primarily a functional right

that promotes reliability in criminal trials." Lee, 476

U.S. at 540.

This Court has on numerous occasions explained

how these "traditional protections" enable the jury to

assess the evidence against the defendant. “Compelling

[the witness] to stand face to face with the jury in order

that they may look at him fenables the jury to] judge by

his demeanor upon the stand and the manner in which

he gives his testimony whether he is worthy of belief."

Kentucky v. Stincer, 482 U.S. 730, 736-37 (1987), quoting

Mattox v. United States, 156 U.S. at 242-43. The oath

impresses the witness “with the seriousness of the

matter." California v. Green, 399 U.S. at 158. And most

notably, cross-examination, “the greatest legal engine

ever invented for the discovery of truth” "call[s] to the

attention of the factfinder the reasons for giving scant

weight to the witness’ testimony." Delaware v. Fensterer,

474 U.S. 15, 22 (1985).

Confrontation ensures that the trier of fact will have

"a satisfactory basis for evaluating the truth of the prior

statement." California v. Green, 399 U.S. at 161. See

also Owens, 108 S.Ct. at 843. The right to confrontation

‘California v. Green, 399 US. at 158, quoting 5 Wigmore, § 1367.

7

therefore is integral to the Sixth Amendment guarantee

of the accused’s right to trial by jury. When the value of

a hearsay statement depends upon an assessment of the

declarant’s understanding of the obligation to tell the

truth and her ability to tell the truth, dispensing with the

‘traditional protections" forfeits the defendant’s right to

have guilt determined by a jury of his peers.

In Kentucky v. Stincer, 482 U.S. 730, this Court found

that a defendant, accused of sodomizing two young chil-

dren, had not been deprived of his right to confrontation

when he was excluded from an in-chambers hearing at

which the court determined the children’s competency to

testify. According to the majority, the crucial question

was "whether excluding the defendant from the hearing

interferes with his opportunity for effective cross-

examination." The Court’s description of defendant’s

ability to bring infirmities in the witnesses’ testimony to

the attention of the jury paints a picture markedly dif-

ferent from the trial in the instant case:

After the trial court determined that the

two children were competent to testify,

they appeared and testified in open

court. At that point, the two witnesses

were subject to full and complete cross-

examination, and were so examined .. .

Any questions asked during the compe-

tency hearing, which respondent’s coun-

sel attended and in which he partici-

pated, could have been repeated during

direct examination and cross-examina-

tion of the witnesses in respondent's

presence . . . At the close of the chil-

dren’s testimony, respondent’s counsel,

had he thought it appropriate, was in a

position to move that the court recon-

sider its competency rulings on the

ground that the direct and cross- *

examination had elicited evidence that

8

a oe

the young girls lacked the basic requi-

sites for serving as competent witnesses.

Thus, the critical tool of cross-

examination was available to counsel as

a means of establishing that the wit-

nesses were not competent to testify, as

well as a means of undermining the

credibility of their testimony.

Id. at 740-44,

In this case counsel was not present when Kathy

made her statements, and defendant never had the op-

portunity to cross-examine her.

C. The Jury In This Case Could Not Assess Accurately

The Child’s Out-of-Court Statement

The statements made by Kathy to Dr. Jambura lie at

the heart of this case. Yet, for a number of reasons, the

jury could not assess their reliability with any degree of

confidence. As a result, the admission of Kathy’s out-of-

court statement deprived defendant of her right to

confrontation.

1. The Nature Of The Declarant

Kathy Wright was two and one-half years old at the

time she allegedly made the statements to which Dr.

Jambura testified. Because the jury neither saw nor

heard her, it never had the opportunity to assess whether

this two and one-half year old child had reached a devel-

opmental stage in which she could understand the need

to tell the truth, or could distinguish fact from fantasy.

By contrast, this issue remains open throughout the trial

when the child testifies, Stincer, 482 U.S. at 744, even if

the court originally finds the child capable of testifying

truthfully. See Idaho Rules of Evidence 603.

The jury in this case was also unable to evaluate

Kathy’s capacity for communicative speech,’ a skill in

which children markedly differ." Significantly, the trial

judge held Kathy to be incompetent pursuant to Idaho

Rules of Evidence 601, which defines as incompetent

"[p]ersons whom the court finds to be incapable of

receiving just impressions of the facts respecting which

they are examined, or of relating them truly." This

ruling suggests, at the very least, that Kathy’s credibility

may have been suspect at the time of the interview.

It is noteworthy, therefore, that the jury could not

observe the manner in which Kathy spoke about "play-

ing" with her father who, according to the prosecution's

case, had forcibly raped her two to three days prior to

her statement. J.A.106. Would the jurors have found

this allegation believable if they had viewed the child’s

affect when she described her activities with "Daddy"?

Factors such as the speed and flow of a witness’ speech,

as well as articulation, intonation, mannerisms of speech

and use of nonverbal modes of communication, on direct

and on cross-examination, enter into a jury’s assessment.

In evaluating suggestibility, a problematic issue with

small children, the jury could have considered the child’s

reaction to unrestricted leading questions on cross-

examination. Owens, 108 S.Ct. at 843 (no inquiry as to

reliability required “when a hearsay declarant is present

at trial and subject to unrestricted cross-examination’).

Here, it is not even clear from the doctor’s testimony

precisely what words Kathy used.

Children’s statements are often unreliable. Specific

questions addressed to a young child may elicit inaccu-

“The voir dire of Kathy Wright (six months after her interview wiih

Dr. Jambura), indicates that she had a great deal of difficulty in

responding to simple questions. For example, when asked how old

she was, she first responded, “Kathy Wright” and then stated she was

six years old. (J.A.33-34 and see generally J.A.32-39.)

Brief of Amici Curiae American Professional Society on the Abuse

of Children et ai. at 11 [hereinafter Myers Brief].

10

rate statements because of a child’s susceptibility to

suggestion," especially in response to leading questions,”

and because the child may seek to please the inter-

viewer, particularly if he is a figure in authority.” More-

over, the child may "“confabulate,” that is fill in the story

with details from the imagination, and remember her

response rather than the event,” making effective cross-

examination far more difficult even when the child is

available to testify.

The Myers amicus brief filed on behalf of the state

concedes that very young children may pose a greater

danger of suggestibility.” It chides the Idaho court for

not citing recent studies that show that children’s hearsay

statements are more reliable than researchers previously

thought." These studies do not demonstrate the kind of

''See Goodman and Clarke-Stewart, “Suggestibility in Children’s Testi-

mony: Implications for Child Sexual Abuse Investigations” 16, in C/il-

dren’s Suggestability (with Special Reference to a Child Witness) (J.

Doris, ed., in press); Cohen & Hernick, “The Susceptibility of Child

Witnesses to Suggestion: An Empirical Study,” 4 Law & Hum. Behav.

201 (1980).

"Penrod, Bull, and Lengnick, “Children as Observers and Witnesses:

The Empirical Data,” 23 Fam.L.Q. 411, 422-27 (1989).

“Ceci, Ross & Toglia, "Age Differences in Suggestibility: Narrowing

the Uncertainties,” in Children’s Eyewitness Memory 79-91 (S. Ceci, M.

Togia & D. Ross eds. 1987) .

“See eg., Christiansen, "The Testimony of Child Witnesses: Fact,

Fantasy, and The Influence of Pretrial Interviews,” 62 Wash.L.Rev.

705, 707-11 (1987); Johnson & Foley, “Differentiating Fact From

Fantasy: The Reliability of Children’s Memory,” 40 J. Soc. Issues 33,

44-45 (1984); Stafford, "The Child as a Witness,” 37 Wash.L.Rev. 303,

309-10 (1962).

'SMyers Brief at 17.

‘°The three authorities who are credited with having prepared Section

II of the Myers Brief (see p.1) have ail admitted in other settings that

the research is too recent to support firm conclusions. See Goodman

(continued...)

11

reliability that is meaningful in a court of law. Instead,

they confirm that a psychologist’s interest in describing

children is of a totally different order than the law's

concern with a defendant’s constitutional rights.

Two instances are illustrative.” The brief asserts:

"In several studies, some including children as young as

three years of age, researchers found that memory of

stressful events is even more enduring than memory for

nonstressful events in children.” Myers Brief at 13. The

cited study concludes: “Not a single error in free recall

was made by the highly stressed children” (emphasis

added). Table 6 accompanying the article indicates,

however, that the proportion of correct answers to dif-

ferent types of specific questions ranged from .25 to .82

for all the children, hardly an endorsement for con-

cluding that children who have been exposed to stressful

'°(__.continued) .

& Clarke-Stewart, supra note 11 at 16 (“Whether children would

misconstrue events to the point that an allegation of abuse would

result, is, based on our research, still debatable.”); Saywitz, “Testi-

mony: Age-Related Patterns of Memory Errors” 49, in Children’s

Eyewitness Memory, supra n.13 (“before generalizing to the legal

setting, a transitional phase of research is needed . . ."); Bulkley, “The

Impact of New Child Witness Research on Sexual Abuse

Prosecutions” 215, in Perspectives on Children’s Testimony (S. Ceci, D.

Ross, M. Toglia eds. 1989) [hereinafter Bulkley] ("the amount of new

research in the past five years on child witnesses is so overwhelming

that it is difficult for researchers, not to mention others, to be aware

of all the available studies and to draw conclusions from them about

children’s eyewitness abilities”).

"Both of these illustrations relate to the article by Goodman, Rudy,

Bottoms & Aman, "Children’s Concerns and Memory: Issues of Eco-

logical Validity in Children’s Testimony,” in What Young Children

Remember and Know (R.Fivush & J.Hudson eds. in press) [herein-

after Goodman, Rudy]. This article is the work most frequently relied

upon in the Myers brief.

‘SGoodman, Rudy at 38. The article analyzed interviews of 48 three

to six year old children that were conducted within two wecks of the

children receiving inoculations at a medical clinic.

12

situations will respond correctly to questioning.” Since

the brief itself discloses that young children will recall

little about an event unless questioned (Myers Brief at

12-15), the statistical significance of the free recall

finding has little or no applicability to the real life

situations with which a court must deal.

The Myers brief also asserts that children as young

as four do not make significantly more false reports than

older children in response to leading questions that seek

to elicit informatior that might be relevant to abuse.”

The text of the article, however, concedes that three of

the 18 four year olds interviewed gave answers that

"might lead to the suspicion of child abuse.” A 17%

error rate for four year olds compared to a 7% error

rate for seven year olds may have statistical significance

"Goodman, Rudy at 63. No mention is made of whether the parents

prepared these children for the inoculations by telling them what to

expect, whether the children had ever been inoculated before at the

same clinic, or anything about who these children were, or indeed how

many of them were three years old.

*This conclusion stems from interviews of pairs of 18 four year olds

and 18 seven year olds who either played Simon Says for 12 minutes

with a male confederate of the authors or watched. The children

were asked to relate everything that happened, and were then asked a

series of misleading and specific questions, some of which concerned

actions that might lead to an accusation of child abuse such as kissing

and taking off clothes.

“One child answered that the man kissed her and the other child with

whom she had been paired, and then added spontaneously “I am a

boy. I pretend to be a boy every time.” Goodman, Rudy supra note

17 at 23. A second child made commission errors about kissing and

spanking. The third child claimed that the man had made the other

child disappear, stated that a turtle flew through the air (there had

been a puppet) but the boy never qualified his response, and stated

that the man had put a hot dog in the other boy’s mouth. /d. at 24.

The authors commented: “Without knowing this little boy’s terms for

sexual anatomy, it is unclear how his response would be interpreted

had he produced it in an actual investigation. It might well have

caused concern, however.” Id.

13

for psychologists. Statistical generalizations may not,

however, override the Confrontation Clause’s concern

with accuracy in the individual case. Cf. Coy v. lowa,

108 S.Ct. 2798, 2803 (1988)(something more than a

generalized finding is needed to overcome the right to

face-to-face confrontation).

2 The Circumstances Of The Interview

In contrast to these artificially created situations,

reports of real life cases of suspected sexual abuse fur-

nish numerous examples of how children can be manipu-

lated during an interview. For example, in State in

Interest of R.W. v. J.L.W., 491 So.2d 652 (La.App.2d Cir.

1986), the juvenile court removed two minor children

from the custody of their mother after hearing a child

protection investigator testify that the three year, ten

month old male child had “related how he and his

mother played ‘touch’ games which he demonstrated

with anatomically correct dolls, verbalizing that each

touched the other’s private parts." Jd. at 654. The

previous day the child had been ‘interviewed by two

Sheriffs deputies for one hour and 23 minutes.

Fortunately for the mother, the interview was

videotaped.* All the judges, including the trial judge,

“Excerpts from the transcription of the videotape are included in the

opinion. The child was first asked repeatedly if he played games with-

out his clothes on with his mother. After numerous denials, the ques-

tioners shifted to asking about games played without any clothes on.

(For example: *. . . I think I'll have to go and find [you] some toys in a

little bit. I’m curious about those games you played without any

clothes on. Who taught you to play those games?") /d. at 660

(emphasis omitted). “Deals” were offered: “You tell me about these

games you play without any clothes on and I'll go see if I can’t find you

.. . handcuffs . . you can play with if you want and also something

that flies.” Jd. at 661 (emphasis in original). The child was told that

daddy reported that he played with his mother without clothes on.

He’s shown a toy mouse, Twinkie, and told that Twinkie will find

something for him to fly with if he tells them about the games, and

(continued...)

14

found the interview “tainted and suggestive" because of

the questioning techniques used by the interviewers. /d.

at 666. The child never admitted to sexual activities

with the mother. /d. at 667. One appellate judge, who

ultimately wrote the opinion reversing the judgment of

the juvenile court, concluded that "[a]fter the videotape

interview any child" would have become "preoccupied

with human genitalia.” Jd. at 664-665.

Another glimpse of how pressured an interview can

be comes from newspaper accounts of the McMartin

child abuse prosecution in California. Jurors, questioned

after the two defendants were acquitted on multiple

counts, criticized the interviewing techniques used.

"Videotapes showed what appeared to be the asking of

leading questions and even pressure bordering on coer-

cion to confirm the stories of other children."” The

*(...continued)

that Twinkie knows that his mother touches him when he doesn’t have

clothes on. The transcript continues:

When did your mom put her mouth on your penis?

I don’t know...

Where were you . . . that’s what Twinkie wants to know?

... at my Dad’s . . . in Monroe.

When mom put her mouth on your penis?

What?

Do you remember that happening? Did it happen?

No. I just dreamed about it . . .

Has momma ever put her mouth on your penis? Twinkie wants

. «+ the truth.

I didn’t . . . She didn’t

Twinkie wants to know why you told us she did. . .”

Id. at 662 (emphasis in original).

“N.Y. Times, Jan. 20, 1990, sec. 1 at 12, col. 1. The story reported on

excerpts from a videotape about questions to an 8-year-old child

“about a game called ‘Naked Movie Star’ that was said to be played at

the preschool. “Well, I didn’t really hear it a whole lot,” the child

said. “I just heard someone yell it from out in the -- someone yelled

-{continucd...)

15

interviewers had been hired by the District Attorney’s

Office. Hechler, The Battle and The Backlash 154

(1988).

3. The Nature Of The Statement

The nature of Kathy’s statement makes its reliability

problematic and difficult to assess. Statements that are

made contemporaneously and spontaneously while an

event is occurring can be assessed by jurors in relation to

the event. Cf. United States v. Inadi, 475 U.S. at 395-96

(co-conspirators’ statements derive their value from the

fact that they are made "while the conspiracy is in

progress .. .").

Kathy’s statement is like a statement at trial. It was

elicited not by an event, but by an interviewer with an

agenda. Cf. id. at 394 (testimony at trial "seldom has

independent evidentiary significance of its own"). It was

elicited, however, without any of the attendant safe-

guards that authorize admission of prior testimony.

California v. Green, 399 U.S. at 165-68 (oath, cross-

examination, and a record of the proceedings).

Kathy’s statement relates to a past event, is not

being reported in its entirety, contains too few details to

*(...continued)

it.”

The story then reports the following exchange between the

interviewer, holding an alligator puppet, and the child:

MacFARLANE: Maye, Mr. Alligator, you peeked in the

window one day and saw them playing it, and maybe you could

remember and help us. BOY: Well, no, I haven't seen anyone

playing "Naked Movie Star.” I’ve only heard the song.

Q. What good are you? You must be dumb.

A. Well, I don’t really, ummm, remember anyone play that

‘cause I wasn’t there, when I . . . when people are playing it.

Q. You weren’t? You weren't. That’s why we’re hoping

maybe you saw . . . See, a lot of these puppets weren’t there, but

they got to see what happened.

16

confirm its consistency with the supposed event,” and

was elicited in response to leading questions designed to

confirm the questioner’s hypothesis. J.A.127-28. The

jury cannot evaluate accurately whether her statement

recounts a past event, or is the consequence of

Suggestive questioning in alien surroundings, in the pres-

ence of strangers, after undergoing what must have been

an extremely unpleasant physical examination. In the

absence of Kathy, the jury did not have the information

needed to assess the appropriate weight to be given

Kathy’s statement.

4. The Nature Of The Witness

Dr. Jambura was not an ordinary fact witness, but an

expert. Although Dr. Jambura did not explicitly state

that Kathy was telling the truth, his testimony as a whole

must certainly have been so understood by the jury. Dr.

Jambura’s credentials in working with sexually abused

children, his experience in talking to children, his claim

to find it "incredibly easy" to interview children (J.A.

120), and his acknowledgement that the naming of

"daddy" strengthened his opinion that sexual abuse had

taken place (J.A.118-19), all signaled to the jury that he

interpreted Kathy’s statements as meaning that she and

her sister were being sexually abused within the family.

Consequently, Kathy’s statement was devastating to the

defendant because it bolstered her sister’s testimony, and

therefore may have made the jury more willing to

* Dr. Jambura testified:

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.

In this connection, it is interesting to note that in a recent study, the

authors commented on false affirmative answers by 3 to 5-year olds to

questions about their private parts: “It should also be noted that when

the children made commission errors to the abuse questions, these

errors consisted almost entirely of nods of the head without any elab-

oration or detail." Goodman, Rudy supra note 17 at 32.

17

believe the claim that her mother abetted the sexual

abuse.

Courts have suggested that because of the aura of

special reliability and trustworthiness surrounding expert

testimony, an expert may never express an opinion about

the credibility of another witness. United States v. Azure,

801 F.2d 336, 340-41 (8th Cir. 1986)(expert on child sex-

ual abuse could not tell jury that he found child believa-

ble; "putting an impressively qualified expert’s stamp of

truthfulness on a witness’ story goes too far"; he thereby

“essentially told the jury" that Azure was the person who

sexually abused her). See also United States v. Scop, 846

F.2d 135, 142 (2d Cir. 1988). Surely the danger to the

accused is far greater when the expert validates the cred-

ibility of a declarant whom the defendant cannot con-

front. See Hutton, "Child Sexual Abuse Cases: Estab-

lishing the Balance Within the Adversary System,” 20 J.

of L. Reform 491 (1987). Interposing the expert be-

tween the declarant and the jury deprives the jury of its

right to make determinations of credibility.

As a matter of evidentiary law, an expert may rely

upon hearsay statements in reaching his or her conclu-

sions, Idaho Rules of Evidence 703, but the expert’s

opinion must also be reconciled with the demands of the

Confrontation Clause. Cross-examining the expert is not

the equivalent of cross-examining the declarant upon

whose statements the expert is relying in expressing his

opinion.” To the contrary, the defendant may be

deprived of his rights to confrontation if he has no

access to the declarant upon whom the expert is relying.

Compare United States v. Rollins, 862 F.2d 1282, 1294

“This is not a case like Delaware v. Fensterer, 474 U.S. 15. In

Fensterer, an expert could not remember the basis for his opinion.

The per curiam opinion found that the Confrontation Clause was satis-

fied by cross-examination of the expert at trial. But the opinion noted

that this was not a case in which a prior out-of-court statement was

being introduced. /d. at 21.

18

(7th Cir. 1988)(testimony of FBI expert as to meaning of

code words, which was based in part on pretrial

interview with informant, did not violate defendants’

right to confrontation; defendant had interviewed the

informant prior to trial); United States v. Affleck, 776

F.2d 1451, 1458 (10th Cir. 1985)(no confrontation viola-

tion where government’s expert related what he had

been told by defendant’s former employees, accountants

and the Trustee in bankruptcy; court noted "that the

appellant had sufficient access to his own former em-

ployees, accountants, and the Trustee in bankruptcy and

could have countered their statements).

D. Corroborating Evidence Does Not Eliminate A Vio-

lation Of The Confrontation Clause

In Delaware v. Van Arsdall, 475 U.S. 673 (1986), this

Court stated:

While some constitutional claims by

their nature require a showing of preju-

dice with respect to the trial as a whole

. the focus of the Confrontation

Clause is on individual witnesses. Ac-

cordingly, the focus of the prejudice

inquiry in determining whether the

confrontation right has been violated

must be on the particular witness, not

on the outcome of the entire trial. It

would be a contradiction in terms to

conclude that a defendant denied any

opportunity to cross-examine the wit-

nesses against him nonetheless had been

afforded his right to “confront{ation]"

because use of that right would not have

affected the jury’s verdict.

Id. at 686 (citations omitted).

In Van Arsdall, the violation of confrontation con-

sisted of an unwarranted restriction on the defendant’s

19

ability to cross-examine a prosecution witness. In this

case, the constitutional error is the failure of the declar-

ant to appear as a witness. The Van Arsdall approach

should be used in this situation as well. The pertinent

inquiry remains: how did the lack of cross-examination

affect the jury’s assessment of Kathy Wright’s statement?

If confrontation is to be excused when corroborating

evidence exists, the constitutional right conveyed by the

Sixth Amendment will become meaningless. Prosecutors

would be encouraged to rely on weak witnesses whom

they would be able to bolster by hearsay evidence that

would not violate the Confrontation Clause because it

was corroborated. Such bootstrapping would spell an

end to the constitutional right embodied in the clause,

especially now that so many jurisdictions have enacted a

residual hearsay exception identical to the one in this

case pursuant to which courts may admit hearsay that

does not, however, pass Confrontation Clause muster.

Il. THE CONFRONTATION CLAUSE SHOULD, AT A

MINIMUM, REQUIRE THE EXCLUSION OF A

CHILD’S STATEMENT ELICITED BY PROSECU-

TORIAL AUTHORITIES AT AN UNRECORDED

INTERVIEW

A. The Confrontation Clause Requires Special Safe-

guards When An Adversarial Trial Does Not Enable

A Defendant To Meaningfully Challenge The

Prosecution’s Evidence

This Court has recognized that the Sixth Amend-

ment protections will not adequately protect the defend-

ant unless they are afforded at a meaningful time. As

this Court has also recognized, a realistic assessment of

the propensities of the police and the situation of the

defendant may require the adoption of prophylactic rules

as the instrumental means to further constitutional

objectives. See e.g., Massiah v. United States, 377 U.S.

20

201 (1964)(post-indictment statements deliberately elic-

ited from defendant by government agents may not be

used against him at trial unless counsel was present).

When, as here, the adversary process at trial does

not "compensatie] for advantages of the prosecuting

authorities," United States v. Ash, 413 U.S. 300, 314

(1973), additional protections are required to make the

right to confrontation meaningful. In particular, an ac-

cused car ot protect himself effectively at trial against

unrecorded statements elicited from a child by a prose-

cutorial agent. Such statements should therefore be

barred, notwithstanding the existence of a residual hear-

Say exception, without the necessity of a case-by-case

analysis under the Confrontation Clause.

B. Prosecutorial Interviews With Children In Child Sex

Abuse Prosecutions Must Be Recorded In Order To

Protect Defendant Against Unreliable Statements

Thai Cannot Be Challenged Meaningfully At Trial

‘Tis Court has mandated prophylactic rules pursuant

to the Sixth Amendment when the risk of erroneous

convictions is high. The defendant’s situation when he is

accused of sexual abuse in an out-of-court statement by

a young child is not unlike that of the defendant identi-

fied by an eyewitness at a pretrial lineup. In United

States v. Wade, 388 U.S. 218 (1967), and the companion

case of Gilbert v. Califonia, 388 U.S. 263 (1967), this

Court, mindful that "the annals of criminal law are rife

with instances of mistaken identification," Wade, 388

U.S.at 228, expressed concern lest the potential for

improper suggestion at the lineup deprive an accused of

"meaningful examination of the identification witness’

testimony at trial." Stovall v. Denno, 388 U.S. 293, 297

(1967). In language remarkably pertinent to the new

problems posed by child sex abuse prosecutions, the

Court explained in Wade:

Insofar as the accused’s conviction may

rest on a courtroom identification in fact

21

the fruit of a suspect pretrial identifica-

tion which the accused is helpless to

subject to effective scrutiny at trial, the

accused is deprived of that right of

cross-examination which is an essential

safeguard to his right to confront the

witnesses against him. Pointer v. State

of Texas, 380 U.S. 400. And even

though cross-examination is a precious

safeguard to a fair trial, it cannot be

viewed as an absolute assurance of

accuracy and reliability. Thus in the

present context, where so many varia-

bles and pitfalls exist, the first line of

defense must be the prevention of un-

fairness and the lessening of the hazards

of eyewitness identification at the lineup

itself. The trial which might determine

the accused’s fate may well not be that

in the courtroom but that at the pretrial

confrontation, with the State aligned

against the accused, the witness the sole

jury, and the accused unprotected

against the overreaching, intentional or

unintentional . . .”

388 U.S. at 235.

Wade and Gilbert mandate that an identification

made at a lineup conducted in the absence of defend-

ant’s counsel -- the special safeguard selected by the

Court to ensure reliability -- must be excluded at trial

even though the statement would otherwise satisfy the

hearsay rule,” and even though the statement is corrobo-

*Federal (and Idaho) Rules of Evidence 801(d)(1)(C) provides: A

statement is not hearsay if the declarant testifies at the trial or hearing

and is subject to cross-examination concerning the statement, and the

Statement is . . . one of identification of a person made after per-

ceiving the person.”

22

rated by other evidence.

Ordinarily, the prosecution interview of a potential

witness is not an occasion "so pernicious that an

extraordinary system of safeguards is required." United

States v. Ash, 413 U.S. 300. Statements made at an

ordinary witness interview will not satisfy a hearsay

exception, and will be usable, if at all, only for impeach-

ment. The opportunity to cross-examine the witness at

trial will adequately protect the defendant and satisfy the

demands of the Confrontation Clause. In child sex

abuse prosecutions, however, the recent adoption of

numerous special hearsay exceptions for the statements

of children” means that the child’s interview, as prone to

pitfalls and hazards as eyewitness identification, may

completely decide the guilt or innocence of the accused

if the interview statements are admitted into evidence.”

When, as here, the child is incompetent to testify, the

adversary process contemplated by the Sixth Amendment

is not available to defendant.” See Barber v. Page, 390

U.S. 719 (1968); Douglas v. Alabama, 390 U.S. 415

(1965); Pointer v. Texas, 380 U.S. 400.

Just as the annals of criminal law reveal numerous

instances of mistaken identification, Wade, 388 U.S. at

228, so do recent events confirm that false accusations of

child sexual abuse are not uncommon.” Researchers

"See Brief for Petitioner at 36, n.14.

*Cf. Uniform Rules of Evidence 807 (requires audio-visual recording

of hearsay statements of children “describing an act of sexual con-

duct”).

*Statements of identification, on the contrary, when admitted require

production of the declarant at trial. See United States v. Owens, 108

S.Ct. 838.

“In the McMartin case in California, charges against five of the

original seven defendants were dropped and the remaining two

defendants were acquitted on 52 counts of molesting young children; a

(continued...)

23

believe that the recent enormous increase in reports of

child sexual abuse has been accompanied by a significant

rise in unsubstantiated reports.” The importance of the

child’s statements, true or false, is highlighted by the fact

that physical evidence of sexual abuse is rare.” Recent

events also highlight the pivotal role of videotapes in

illuminating unduly suggestive interview techniques.”

*( continued)

mistrial was declared on the remaining 12 counts. N.Y. Times, Jan.

19, 1990, Al, col. 2. See also Matthews, In California a Question of

Abuse: An Excess of Child Molestation Cases Brings Kem County's

Investigative Methods Under Fire, Wash. Post, May 31, 1989 at D1

(attorney general’s office concluded that children were

overinterviewed, pressured and allowed to share one another's

accounts). In Minnesota, a prosecutor was publicly rebuked for

mishandling an investigation in which charges of sexual abuse against

21 of the 24 defendants were dropped. Two other defendants were

acquitted. Shipp, Prosecutor in Sex Case to Stay in Office, N.Y. Times,

Oct. 11, 1985 at A.15 col.2. See generally Eberle, The Politics of Child

Abuse (1986).

*'Two researchers recently concluded that “approximately 8 percent or

more of the investigated cases may be fictitious." Raskin & Yuille,

“Problems in Evaluating Interviews of Children in Sexual Abusc

Cases” 184, 186, in Perspectives on Children’s Testimony (S.Ceci,

D.Ross and M.Toglia eds. 1989). Although one author has criticized

this assertion as unfounded, see Bulkley, supra note 16 at 216, she

herself acknowledges that there “has been a significant rise in

unsubstantiated reports during this time.” /d. at 208. Increased

incidents of false accusations in matrimonial disputes have been

reported, some of which have culminated in criminal charges. New

York Times, Jan. 17, 1987 at A.14, col.2.

“Duggan, Aubrey, Doherty, Isquith, Levine and Scheiner, “The

Credibility of Children as Witnesses in a Simulated Child Sex Abuse

Trial” 71, 73, in Perspectives on Children’s Testimony, supra ("The most

commonly reported type of child sexual abuse is nonviolent genital

manipulation, which would rarely cause any physical damage.”).

“When interviewed after the McMartin verdict, the jurors indicated

that they were swayed in favor of the defense by the videotaped

interviews. N.Y. Times, Jan. 19, 1990, A.1, col.2. The public defender

(continued...)

24

Although Wade-Gilbert has been limited to identifi-

cation procedures taking place after adversarial judicial

proceedings have been commenced, see Kirby v. Illinois,

406 U.S. 682 (1972), the “critical stage" requiring pro-

cedural safeguards for prosecution interviews of alleged

victims of child sex abuse should not be so restricted. In

the identification cases defendant is afforded a second

line of defense, announced by the Court simultaneously

with Wade-Gilbert: the right to have excluded from

evidence the results of an identification procedure that

was “unnecessarily suggestive and conducive to

irreparable mistaken identification.” Stovall v. Denno,

388 U.S. at 302. See also Manson v. Brathwaite, 432 U.S.

98 (1977). Thus, in identification situations, either the

defendant will be a witness to the suggestiveness, or, in

the case of photographs, the photographs will be

available for reconstruction purposes. Ash, 413 U.S. at

324 (Stewart, concurring).

When the child does not testify or has had its mem-

ory altered by the interview, it is impossible to recon-

struct the unrecorded interview of a child. Giving the

defendant the burden of proving suggestiveness through

cross-examination of the interviewer does not protect

him adequately. As this Court said in Wade, cross-

examination “cannot be viewed as an absolute assurance

of accuracy and reliability." 388 U.S. at 235.”

*(..continued)

has expressed similar views. See “McMartin’s Preschool Lessons,” 76

A.BAJ. 28 (1990)("[A] slam dunk for the prosecution” had interviews

not been videotaped).

“Pennsylvania v. Ritchie, 107 S.Ct. 989 (1987), is not to the contrary.

In that case, a child sex abuse prosecution, a plurality of the Court

held that defendant could not rely on the Confrontation Clause to

obtain information concerning the victim contained in a state agency

file made confidential by statute. The majority found that defendant's

right to a fair trial had not been violated because the state had re-

quired the agency to submit the file for judicial in camera review to

(continued...)

25

C. The Idaho Supreme Court Properly Found That The

Failure To Record Deprived Defendant Of Her

Right To Confrontation

The Supreme Court of Idaho could properly find

that the truth-seeking function of a trial is impaired by

the use against defendant of statements elicited by the

prosecution from a young child at an unrecorded inter-

view. In an analogous situation, all members of this

Court agreed that a state may protect itself against a

class of evidence that posed too great a risk of unrelia-

bility.

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

the majority held that a per se rule excluding all hypnoti-

cally enhanced testimony violated the defendant’s right

to compulsory process,” it indicated approval of state

adopted procedural safeguards designed to reduce inac-

curacies, such as the “[t]ape or video recording of all

interrogations,” id. at 60, as "a means of controlling overt

suggestions.” Jd. at 61. See also id. at nn.16 & 19.

Chief Justice Rehnquist and Justices White, O’Connor

and Scalia dissented on the ground that the state was

free to adopt a per se rule to exclude evidence “whose

trustworthiness is inherently suspect." /d. at 64. The

dissenters pointed out that the state court had observed

that “a hypnotized individual becomes subject to

suggestion, is likely to confabulate, and experiences

artificially increased confidence in both true and false

memories following hypnosis." /d. at 62.

*( continued)

determine the presence of information “that may have changed the

outcome of his trial had it been disclosed.” /d. at 1004. In this case

there is no way to protect the defendant unless a record is required.

“The majority noted that the per se rule prevented the defendant from

testifying to the details of the homicide with which she was charged.

Id. at 57. The majority reserved decision as to whether a state could

adopt a per se exclusionary rule to bar testimony by previously

hypnotized witnesses rather than the accused. /d. at 58, n.15.

26

Consistent with the concerns expressed in Rock,

amicus proposes that a rule of exclusion is warranted

whenever prosecutorial authorities interview a child after

they have focused on the defendant and do not audio or

videotape the interview.” Moreover, even if the state-

ments are recorded, they must be excluded if they lack

— indicia of reliability to satisfy the Confrontation

ause.

The proposed rule balances the needs of the state

and the rights of the defendant at very little cost and

inconvenience.” It is responsive both to the rights of the

accused and to the self-evident proposition that prosecu-

tors want to get convictions. See Lee v. Illinois, 476 U.S.

at 544 (commenting on untrustworthiness of codefend-

ant’s “unsworn statement [that] was given in response to

the questions of police, who, having already interrogated

“Contrary to petitioners, we do not believe that the Idaho Supreme

Court in fact created a prophylactic rule. In characterizing the

decision below as having created “three inflexible conditions

precedent,” Brief of Petitioner at 42, the state seems to be substituting

the per se language in the concurring opinion in State v. Giles, 772 P.2d

at 202, regarding criteria for the admission of hearsay pursuant to a

residual exception, for the language actually contained in the case that

is being reviewed. In Wright, the Idaho court held that the particular

statements at issue were untrustworthy “[b]ecause of the combined

effect of her tender years and the suggestive, inadequately reviewable

interview technique applied by Dr. Jambura.” 775 P.2d at 1227.

“Amicus proposes the use of videotape in this context as a prophyl-

actic rule. By contrast, the use of closed circuit television when a

declarant is available to testify in person raises different and serious

Confrontation Clause problems. The constitutionality of the latter

procedure is before this Court in Maryland v. Craig, No. 89-478.

“The state’s protests about not having equipment available when a

child blurts out a statement are beside the point. This case concerns

statements that are deliberately elicited by the police, or its agent. In

1990, it is highly unlikely that recording equipment will not be availa-

ble. Also, this cuse does not involve statements derived in the course

of an ongoing therapeutic relationship.

27

Lee, no doubt knew what they were looking for").” It

recognizes that defendant cannot get a fair trial when he

cannot rely on the adversary process at trial to challenge

effectively the hearsay statements elicited by the police.

Guidelines such as these will lead to more effective

investigations because prosecutors will not be able to

badger children into making highly questionable state-

ments. A bright-line prophylactic rule can be effective

in reducing undesirable prosecutorial behavior, and in

securing more reliable evidence. Consequently, the

objectives of the Sixth Amendment and the Confron-

tation Clause will be served.

*The Lee majority discounted the fact that the statement may have

constituted a declaration against penal interest: “That concept defines

too large a class for meaningful Confrontation Clause analysis. We

decide this case as involving a confession by an accomplice which

incriminates a criminal defendant.” /d. at 544.

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CONCLUSION

The defendant in this case was doubly deprived of

her right to confrontation. First, she was deprived of her

right to confrontation because the jury could not assess

accurately the weight to be given Kathy's out-of-court

Statements since Kathy did not testify at trial. Second,

the hearsay account of Kathy’s statements at an un-

recorded prosecutorial interview should have been ex-

cluded because defendant’s inability to challenge these

Statements effectively at trial deprived her of the fair

trial guaranteed by the Sixth Amendment. The urgent

need to stem the tide of sexual abuse directed at this

nation’s children cannot be achieved by dispensing with a

criminal defendant’s constitutional rights.

Respectfully submitted,

Margaret A. Berger

(Counsel of Record)

Brooklyn Law School

250 Joralemon Street

Brooklyn, New York 11201

(718) 780-7941

Steven R. Shapiro

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: March 30, 1990

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